Shagoury v. United States

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 18, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
ROBERT MICHAEL SHAGOURY,
Plaintiff - Appellant,
v.
No. 14-2022
(D.C. No. 1:14-CV-00031-SWS-KBM)
UNITED STATES OF AMERICA
(D.N.M.)
(Drug Enforcement Administration)
(Michele M. Leonhart),
Defendant - Appellee.
ORDER AND JUDGMENT *
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
Proceeding pro se, 1 Robert Shagoury appeals from the district court’s
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Because Mr. Shagoury is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
dismissal of his complaint. Mr. Shagoury has also filed a motion to proceed in
forma pauperis (“IFP”) on appeal and a document styled as a “motion to restrain
the Appellee and/or persons working with the Appellee, from harming the
Appellant and/or his family, physically, psychologically, financially, judicially,
accidentally or mysteriously and/or any other form of harm” (henceforth, “motion
to restrain”). For the reasons that follow, the district court’s judgment is
affirmed and the two pending motions are denied.
I
On January 9, 2014, Mr. Shagoury filed a one-page complaint in the
District of New Mexico. The complaint was captioned “Robert Michael Shagoury
v. The United States of America (Drug Enforcement Administration) (Michele M.
Leonhart).” R. at 3 (Compl., filed Jan. 9, 2014). Mr. Shagoury alleged in the
complaint that the United States was trying to kill and injure him. With his
complaint, Mr. Shagoury filed an application to proceed IFP.
The district court screened the complaint pursuant to 28 U.S.C. § 1915. In
so doing, the district court dismissed the complaint without prejudice for lack of
subject-matter jurisdiction. The district court reasoned that the complaint was
“completely devoid of factual allegations” and contained no averments “showing
waiver of the United States’ sovereign immunity.” Id. at 18 (Mem. Op. & Order,
filed Feb. 4, 2014). In the signature block of the district court order, a magistrate
judge signed her name in pen, indicating that she was signing “for” a district
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court judge, whose name was type-written below. Id. at 19. The “final order”
that later issued included the same notations. According to the district court
docket, the order was “by” the district judge and was “entered at his direction by”
the magistrate. Mr. Shagoury filed a timely notice of appeal.
II
The discussion will proceed in three parts. First, we will explain why we
have jurisdiction over the appeal. Second, we will discuss why the district court’s
judgment should be affirmed. Third, we will address the two pending motions
and conclude that both must be denied.
A
Although no party challenges our jurisdiction, we must sua sponte assure
ourselves that we have the power to decide the appeal, if a “potential
jurisdictional problem” is present in the case. Smith v. Rail Link, Inc., 697 F.3d
1304, 1312–13 (10th Cir. 2012). As noted above, the order and final order in the
district court dismissing the complaint were signed by a magistrate at the
direction of a district court judge who did not himself sign the orders. Unless the
parties consent, a magistrate judge may not issue a final, appealable order on
behalf of the district court. See Phillips v. Beierwaltes, 466 F.3d 1217, 1221–22
(10th Cir. 2006); Andrews v. Town of Skiatook, 123 F.3d 1327, 1328 n.2 (10th
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Cir. 1997). There is no indication that the parties 2 consented to a magistrate
judge’s jurisdiction in this case. Therefore, we only have jurisdiction over the
appeal if we can properly conclude that the district court judge rendered the
decision to dismiss, even though the magistrate judge signed the orders on his
behalf. We can do so.
Unlike the Federal Rules of Criminal Procedure, the Federal Rules of Civil
Procedure contain no requirement that district court judges sign judgments.
Compare Fed. R. Crim. P. 32(k)(1) (“The judge must sign the judgment, and the
clerk must enter it.”), with Fed. R. Civ. P. 58(b)(1)(C) (“[U]nless the court orders
otherwise, the clerk must, without awaiting the court’s direction, promptly
prepare, sign, and enter the judgment when . . . the court denies all relief.”), and
Fed. R. Civ. P. 54 (setting forth the requirements for judgments in civil matters
and not mentioning a signature by the district court judge). We held in 1939 that
in civil cases “it is not necessary for the court to sign a formal written judgment.”
W. Union Tel. Co. v. Dismang, 106 F.2d 362, 363 (10th Cir. 1939). While
Dismang obviously interpreted a much older version of the Rules, they have not
changed in this regard and we have never overruled the opinion. Accordingly,
even though the better practice is surely for a district court judge to sign his or
2
A summons was issued to the United States but the complaint was
dismissed before it was returned. The United States therefore did not appear in
the district court, nor has it appeared here.
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her own orders, we do have jurisdiction over the appeal.
B
Mr. Shagoury presents only two intelligible arguments that are responsive
to the district court’s sovereign-immunity analysis. Neither is availing.
First, Mr. Shagoury suggests that the district court’s sovereign-immunity
analysis was erroneous because the named defendants “used persons working with
them and/or contracted persons to poison the Appellant.” Aplt. Opening Br. at 1.
He offers no authority for this proposition, and no explanation beyond this bare
sentence. As a result, the argument is inadequately presented to warrant reversal.
See United States v. Williamson, 746 F.3d 987, 993 (10th Cir. 2014) (“[W]e
routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” (alteration in original)
(internal quotation marks omitted)); see also James v. Wadas, 724 F.3d 1312,
1315 (10th Cir. 2013) (“Because [the plaintiff] is pro se, we liberally construe his
filings, but we will not act as his advocate.”).
Second, Mr. Shagoury contends that under Supreme Court precedent
“Congress may organize ‘sue and be sued’ agencies” and “such [an] agenc[y] may
be sued in any Court of otherwise competent jurisdiction as if it were a private
litigant as long as the agency is to pay out the judgment from its own budget, not
from the U.S. Treasury.” Aplt. Opening Br. at 2. Mr. Shagoury did not articulate
this theory to the district court and does not argue plain error on appeal. The
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theory is therefore forfeited. See United States v. MacKay, 715 F.3d 807, 831
(10th Cir. 2013) (“In this Circuit, the failure to argue for plain error and its
application on appeal . . . surely marks the end of the road for an argument for
reversal not first presented to the district court.” (omission in original) (internal
quotation marks omitted)), cert. denied, --- U.S. ----, 134 S. Ct. 1275 (2014); cf.
Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1 v. City of Guthrie, 654 F.3d
1058, 1068 (10th Cir. 2011) (noting that sovereign immunity is jurisdictional);
McDonald-Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096, 1102 (10th
Cir. 2011) (requiring plaintiffs to plead sufficient facts to establish jurisdiction).
Apart from the forfeiture, the authority Mr. Shagoury relies on for this
point—Federal Housing Administration v. Burr, 309 U.S. 242 (1940)—is
unavailing. As it applies here, that case only stands for the proposition that the
federal government can waive its sovereign immunity by subjecting its agencies
to suit. See Boehme v. U.S. Postal Serv., 343 F.3d 1260, 1263 (10th Cir. 2003)
(discussing Burr); accord FDIC v. Hulsey, 22 F.3d 1472, 1480 (10th Cir. 1994).
The only agency named by Mr. Shagoury was the Drug Enforcement
Administration and Mr. Shagoury offers no reason to suppose that the federal
government has waived the sovereign immunity that would otherwise attach to
this agency. Cf. Sarit v. DEA, 987 F.2d 10, 16 (1st Cir. 1993) (finding no
jurisdiction over a suit against the Drug Enforcement Administration because
sovereign immunity had not been waived). As a consequence, he is not entitled to
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reversal.
C
Mr. Shagoury has filed a motion to proceed IFP on appeal. As
demonstrated above, he has no “reasoned, nonfrivolous argument on the law and
facts,” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005), and his
motion to proceed IFP is therefore denied.
D
Mr. Shagoury’s “motion to restrain,” filed April 11, 2014, reiterates various
allegations regarding the harm that the defendants are supposedly inflicting on
him. In view of our affirmance of the district court’s judgment, the “motion to
restrain” is denied as moot. Cf. Holt v. McBride, 539 F. App’x 863, 866 (10th
Cir. 2013) (“The judgment of the district court is affirmed. [The plaintiff’s]
motion for injunction pending appeal is denied as moot.”); Doyle v. Archuleta,
370 F. App’x 934, 937 (10th Cir. 2010) (dismissing an appeal and denying a
motion for an injunction as moot).
III
For the reasons set forth above, we AFFIRM the district court’s judgment,
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DENY Mr. Shagoury’s request to proceed IFP, and DENY Mr. Shagoury’s
“motion to restrain.”
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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