Landrith v. Schmidt

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 10, 2013
Elisabeth A. Shumaker
Clerk of Court
BRET DAVID LANDRITH,
Plaintiff-Appellant,
v. Nos. 12-3302 & 12-3332
(D.C. No. 2:12-CV-02161-CM-GLR)
DEREK SCHMIDT, Kansas Attorney (D. Kan.)
General, in his personal capacity; DON
JORDAN, former Secretary of SRS, in
his personal capacity; ROB SIEDLECKI,
former Secretary of SRS, in his personal
capacity; BOB CORKINS, SRS General
Counsel, in his official capacity; JOHN
BADGER, former Chief Counsel of SRS,
in his personal capacity; STANTON A.
HAZLETT, Disciplinary Administrator,
in his official capacity; BRIAN FROST;
CRAIG E. COLLINS; YOUNG
WILLIAMS, PC; DAVID WEBER, SRS
case worker; PHYLLIS GILMORE,
acting Secretary of SRS, in her official
capacity; ROBERT D. DENNIS, Clerk of
the Court, United States District Court,
Western District of Oklahoma, in his
official capacity; J. EDWARD BARTH,
Chairman, Committee on Admission and
Grievances, Western District of
Oklahoma, in his official capacity; JOHN
HERMES, Committee on Admissions
and Grievances, Western District of
Oklahoma, in his official capacity; JUDY
HAMILTON MORSE, Esq., Committee
on Admissions and Grievances, Western
District of Oklahoma, in her official
capacity; WILLIAM J. CONGER,
Committee on Admissions and
Grievances, Western District of
Oklahoma, in his official capacity;
EMMANUEL E. EDEM, Committee on
Admissions and Grievances, Western
District of Oklahoma, in his official
capacity; WILLIAM ROSS, Committee
on Admissions and Grievances, Western
District of Oklahoma, in his official
capacity,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.
Pro se plaintiff Bret Landrith appeals the district court’s dismissal of his civil
rights complaint (appeal No. 12-3302) and imposition of filing restrictions on him
(appeal No. 12-3332). The parties are familiar with the facts, so we do not recite
them here.
Appeal No. 12-3302
The district court’s dismissal of the First Amended Complaint is affirmed
under the pleading principles set forth in Bell Atlantic Co. v. Twombly, 550 U.S. 544,
*
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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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555-57 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009). The complaint’s
allegations do not “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). Particularly, Landrith’s “bare assertion[s] of conspiracy
will not suffice.” Twombly, 550 U.S. at 556. “Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior era, but it does
not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 678-79.1
The district court’s denial of Landrith’s motion for leave to file a second
amended complaint also is affirmed because amendment would have been futile.
See Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000).
Appeal No. 12-3332
The injunction imposing filing restrictions is affirmed. It is well-established
that a court has the inherent power “to regulate the activities of abusive litigants by
1
Various claims also are subject to dismissal on other grounds, including
(1) lack of standing to pursue claims for third parties, see Wilderness Society v. Kane
Cnty., Utah, 632 F.3d 1162, 1168, 1170-72 (10th Cir. 2011) (en banc); (2) abstention
under Younger v. Harris, 401 U.S. 37 (1971); (3) qualified immunity, see Stewart v.
Beach, 701 F.3d 1322, 1329-30 (10th Cir. 2012); (4) lack of proper service of
process, see Fed. R. Civ. P. 4; and (5) lack of personal jurisdiction, see Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945). Res judicata (claim preclusion) may also
apply. See Rhoten v. Dickson, 223 P.3d 786, 798 (Kan. 2010) (“Both federal and
Kansas courts have held a pending appeal does not suspend the finality of the lower
court’s judgment for claim preclusion purposes.”); but see State v. Roberts, 259 P.3d
691, 700 (Kan. 2011) (“[C]onsistent with the doctrine of res judicata, the order of
dismissal would not be final until the opportunity for an appeal had expired or was
exhausted; only then would the order have preclusive effect.”).
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imposing carefully tailored restrictions under the appropriate circumstances.” Tripati
v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (per curiam) (quotation omitted).
“[I]njunctions are proper where the litigant’s abusive and lengthy history is properly
set forth.” Id. at 353. “[T]here must be some guidelines as to what plaintiff must do
to obtain the court’s permission to file an action.” Id. at 354. And a litigant “is
entitled to notice and an opportunity to oppose the court’s order before it is
instituted.” Id. The district court’s injunction met each of these requirements.
The judgments of the district court are affirmed in both No. 12-3302 and
No. 12-3332.
Entered for the Court
John C. Porfilio
Circuit Judge
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