Smith v. Seymour

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 23, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
D A V ID L. SM ITH ,
Plaintiff-Appellant,
v. No. 05-1032
(D.C. No. 03-M -548)
STEPH ANIE K. SEYM OUR, United (D . Colo.)
States Circuit Judge; BOBBY R.
BALDOCK, United States Circuit
Judge; W ADE BRORBY, United
States Circuit Judge; DA VID EBEL,
United States Circuit Judge; M ARY
BRISCOE, United States Circuit
Judge; D EA N ELL R EEC E TA CHA,
United States Circuit Judge;
CAROLYN DINEEN KING, United
States Circuit Judge; THOM AS M .
REAVLEY, United States Circuit
Judge; JACQUES L. W IENER, JR.
United States Circuit Judge; E.
GRADY JO LLY, United States Circuit
Judge; PATRICK E.
HIGGINBOTHAM , United States
Circuit Judge; PATRICK J. FISHER,
JR., United States Circuit Clerk; ZITA
L. W EINSH IENK, United States
District Judge; EDW ARD W .
NOTTINGHAM , United States
District Judge; DAN IEL B. SPARR,
United States D istrict Judge; LEW IS
T. BABCOCK, United States District
Judge; W ILEY Y. DANIEL, United
States D istrict Judge; SID N EY A.
FITZW ATER, United States District
Judge; SA M R. CUM M INGS, United
States District Judge; TERRY R.
M EANS, United States District Judge;
JERRY BUCHM EYER, United States
D istrict Judge; PH ILLIP S. FIG A,
A ttorney; M A RY M U LLA RK EY,
Colorado Supreme Court Judge, All
individually and in their
official capacities,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.
David L. Smith, an attorney proceeding through counsel, 1 appeals the
district court’s dismissal of his civil rights complaint and its refusal to alter or
amend its judgment. W e have jurisdiction under 28 U.S.C. § 1291. W e AFFIRM .
After this court suspended and then disbarred M r. Smith from the practice
of law before this court, other courts imposed reciprocal discipline. M r. Smith
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
M r. Smith signed his opening and reply briefs as a pro se
attorney-appellant. Because his ability to proceed pro se was restricted, however,
see Howard v. M ail-Well Envelope Co., 150 F.3d 1227, 1232 (10th Cir. 1998),
counsel entered an appearance on his behalf.
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filed a complaint against judges of this court and the other courts who were
involved in the disciplinary decisions. He also named as defendants the clerk of
this court, a justice of the Colorado Supreme Court, and the attorney who
represented him in the Colorado federal district court disciplinary proceedings.
The district court granted defendants’ motions to dismiss the complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
M r. Smith lists ten issues in his opening brief’s “Statement of the Issues.”
Aplt. Br. at 2-3. His “Statement of Facts” essentially repeats his “Statement of
the Issues,” with minimal further discussion. Id. at 4-6. M r. Smith then adopts
his “Statement of Facts” as his argument, adding only a verbatim recitation of
each of the seven exhibits he offered before the district court at a November 10,
2004, hearing, with each recitation followed by the conclusory allegation that
“Judge M atsch clearly abused his discretion (if any) and/or committed reversible
error by ignoring the foregoing Exhibit.” Id. at 7-30. The brief contains no
citation to or discussion of legal authority to support any of the points listed in
the “Statement of Issues.”
W hen a litigant fails to comply with the requirements of Federal Rule of
Appellate Procedure 28, “we cannot fill the void by crafting arguments and
performing the necessary legal research.” Garrett v. Selby Connor M addux &
Janer, 425 F.3d 836, 841 (10th Cir. 2005). Due to his inadequate briefing,
M r. Smith has waived appellate consideration of his issues. “W e do not consider
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merely including an issue within a list to be adequate briefing.” Utahns for Better
Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002). “[I]ssues
will be deemed waived if they are not adequately briefed.” Id.; see also
Hardeman v. City of Albuquerque, 377 F.3d 1106, 1122 (10th Cir. 2004)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.”) (quotation omitted); Wilburn v.
M id-South Health Dev., Inc., 343 F.3d 1274, 1281 (10th Cir. 2003) (“W e . . . will
not consider issues that are raised on appeal but not adequately addressed.”).
Under the principles discussed in Switzer v. Berry, 198 F.3d 1255, 1257-58
(10th Cir. 2000), M r. Smith’s motion and supplemental motion for recusal and/or
disqualification of the U nited States Court of A ppeals for the Tenth Circuit are
GRANTED to the extent that those Tenth Circuit judges named as defendants in
the complaint are recused from this matter, and otherwise it is DENIED. The
judgm ents of the district court are AFFIRMED. 2
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2
The district court expressed concern that M r. Smith could not apply for
readmission to other courts w hile he remained disbarred in this court and this
court apparently would not hear his attempts to seek relief. Recently, however, a
panel of this court granted M r. Smith’s petition for reinstatement and allowed him
to reapply for admission to practice before this court. In re David L. Smith,
No. 93-631 (10th Cir. M ay 4, 2007). Thus, this issue no longer presents a
concern.
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