Ortiz v. Norton

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 19 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MELVIN R. ORTIZ,
Plaintiff-Appellant,
v. No. 04-2230
(D.C. No. CIV-97-738-JC/LFG)
GALE A. NORTON, Secretary of the (D. N.M.)
Interior; UNITED STATES
FISH AND WILDLIFE SERVICE;
UNITED STATES OF AMERICA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff appeals from an adverse judgment entered after a two-day bench
trial on his Title VII claims alleging national origin discrimination and retaliation
by his former employer, the United States Fish and Wildlife Service, Department
of Interior. The district court concluded that plaintiff, who was unable to obtain
extended emergency leave when facing an imminent term of incarceration and
was ultimately terminated, failed to prove by a preponderance that the actions
complained of were the result of discriminatory or retaliatory motive. Ordinarily,
we would review the district court’s factual findings on the trial record for clear
error and review de novo the legal conclusions reached based on those findings.
See Keys Youth Servs., Inc. v. City of Olathe , 248 F.3d 1267, 1274 (10 th Cir.
2001). But here plaintiff has failed to provide the trial transcript on which this
review would be premised. As explained below, this omission requires us to
affirm what is, in effect, an unreviewable determination.
It is the appellant’s duty to ensure that we are provided with all transcripts
required for “a complete and accurate record of the proceedings related to the
issues on appeal.” 10 th Cir. R. 10.1(A)(1); see Fed. R. App. P. 10(b); King v.
Unocal Corp. , 58 F.3d 586, 587-88 (10 th Cir. 1995). While some aspects of
record preparation, such as designating and forwarding documents in the case file,
are handled for pro se litigants by the district clerk, 10 th Cir. R. 10.2(C), nothing
in the rules relieves a pro se appellant of the duty to order and pay for transcripts
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required in support of the issues raised on appeal. And, as this court has
emphasized numerous times, a party’s pro se status does not as a general matter
excuse noncompliance with basic rules of procedure binding on all litigants.
Murray v. City of Tahlequah , 312 F.3d 1196, 1199 & n.3 (10 th Cir. 2002);
Nielsen v. Price , 17 F.3d 1276, 1277 (10 th Cir. 1994); Green v. Dorrell , 969 F.2d
915, 917 (10 th Cir. 1992).
When, as here, the issues raised by the appellant turn on or relate to the
evidence presented at trial, the trial transcript is indispensable to our informed
appellate review. 1
See, e.g. , Scheufler v. Gen. Host Corp. , 126 F.3d 1261,
1268-69 (10 th Cir. 1997); United States v. Vasquez, 985 F.2d 491, 495 (10 th Cir.
1993); Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10 th Cir. 1992). Thus,
once again, as “[t]his court has held ‘on a number of occasions and in a variety of
settings[,] . . . the lack of a required transcript leaves us with no alternative but to
affirm.’” Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co. , 175 F.3d 1221,
1
There is one facially fact-independent issue raised that may not entail any
resort to the evidentiary record. Plaintiff objects that the district court “fail[ed] to
address the ‘retaliation issue.’” Aplt. Op. Br., Attachment to attached Pro Se
Docketing Statement, at 5. If this were substantiated solely by reference to the
district court’s decision, we could order a remand for further proceedings on the
neglected issue without the need to consult the trial transcript. But the objection
is refuted by the second and fourth conclusions of law on page six of the district
court’s decision, in which the court acknowledges the retaliation claim, sets out
the governing standard, and concludes that plaintiff failed to meet his burden (an
evidentiary conclusion that we must accept for the reasons stated above).
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1238 (10 th Cir. 1999) (quoting McGinnis v. Gustafson , 978 F.2d 1199, 1201 (10 th
Cir. 1992)).
The judgment of the district court is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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