Patten v. Foley's

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 6 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

FRED PATTEN; TERRY PATTEN,

Plaintiffs-Appellants,

v. No. 02-1371
(D.C. No. 02-K-88 (MJW))
FOLEY’S, also known as The May (D. Colo.)
Department Stores Company;
CAROLE BULLARD, Asst. Dept.
Mgr., personally and in her official
capacity; OMNI INSURANCE
GROUP, also known as The Hartford;
LAURA TORRES, Claims Adjuster,
Omni Insurance Group, personally
and in her official capacity;
CITIBANK USA; FIRST USA
BANK, N.A.; EXPERIAN; TRANS
UNION; EQUIFAX; SECURITY
SERVICES FCU (FEDERAL
CREDIT UNION); DON BATES;
DON BATES INSURANCE;
VOICESTREAM WIRELESS; BANK
OF AMERICA,

Defendants-Appellees,

and

JOHN ASHCROFT, United States
Attorney General; DONALD
RUMSFELD, Secretary of Defense,

Interested parties.
 ORDER AND JUDGMENT *

Before BRISCOE , PORFILIO , and ANDERSON , 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.

Plaintiffs Fred and Terry Patten, appearing pro se, appeal the district

court’s orders dismissing their complaint with prejudice and awarding defendants

attorney’s fees. We affirm.

I.

Plaintiffs filed their pro se complaint on January 15, 2002, alleging the

following:

This dispute arises out of a stolen automobile that was stolen and
destroyed. This vehicle was written-off by Omni Insurance Group
A.K.A. The Hartford Group who took possession of the Vehicle.
Omni Insurance Group A.K.A. The Hartford Group refused to pay
the claim to the lien holder. This resulted in a fraudulent and

*
This order and judgment is not binding precedent, except under the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.

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 perjured claim against the Plaintiffs. Subsequently Folleys [sic]
A.K.A. The May Stores Company created a false and perjured claim
that the Plaintiffs were bankrupt. Don Bates Insurance, Laura Torres
(claims adjuster for Omni Insurance Group), Agents for the insurance
company committed misprision of felony on this matter and acted
with deliberate indifference against the Plaintiffs.

R., doc. 1 at 4. The remainder of plaintiffs’ complaint alleges a variety of federal

and state claims, with no specific facts to support any single theory, and with

little relevant authority. The parties then filed thirty-eight separate motions that

the district court addressed in its order dated April 12, 2002. In that order, the

court denied plaintiffs’ motion for recusal, denied a number of plaintiffs’ other

motions as groundless, and denied all other outstanding motions as moot. The

court granted defendants’ various motions to dismiss the complaint, finding that

plaintiffs failed to state a federal claim. The court dismissed the federal claims

with prejudice and declined to exercise supplemental jurisdiction over the

remainder of plaintiffs’ claims. The district court entered its final judgment on

April 15, 2002, and plaintiffs filed their first notice of appeal with the district

court on May 23, 2002.

Finding that plaintiffs’ claims were “patently and egregiously groundless,”

the district court retained jurisdiction to consider motions by defendants for costs

and fees associated with contesting the complaint. Plaintiffs did not object to any

of defendants’ submitted motions for fees, and on July 16, 2002, the district court

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entered its judgment awarding attorney’s fees to six defendants. Plaintiffs filed a

second notice of appeal on August 14, 2002.

II.

As a preliminary matter, we consider the contentions of defendants First

USA Bank and Security Services Federal Credit Union that this court lacks

jurisdiction over plaintiffs’ appeal of the district court’s April 15, 2002, final

judgment dismissing plaintiffs’ complaint. 1
While plaintiffs designated John

Ashcroft and Donald Rumsfeld only as “interested parties” in the caption of their

complaint, the body of that pleading indicates that plaintiffs sought a writ of

1
Contrary to Security Services Federal Credit Union’s further contention, the
district court did not lack federal subject matter jurisdiction over the merits of
plaintiffs’ claims. For this determination a federal court “must look to the way
the complaint is drawn to see if it is drawn so as to claim a right to recover under
the Constitution and laws of the United States.” Bell v. Hood, 327 U.S. 678, 681
(1946). Where a complaint is so drawn, the court must entertain the suit unless
“the alleged claim under the Constitution or federal statutes clearly appears to be
immaterial and made solely for the purpose of obtaining jurisdiction or where
such a claim is wholly insubstantial and frivolous.” Id. at 682-83. Although this
case presents a borderline situation, given plaintiffs’ pro se status and the
considerable benefit of the doubt we allow for their pleadings, we conclude that
their complaint has been drawn to seek recovery under the Constitution and laws
of the United States and falls under neither of Bell’s two exceptions. Among
other things, plaintiffs’ complaint was drawn as seeking recovery for alleged
violations of one or more of their constitutional rights and brought into question
aspects of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681v, which
conferred jurisdiction on the district court notwithstanding the failure of
plaintiffs’ allegations to ultimately sustain their cause of action. See Bell,
327 U.S. at 682.

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mandamus compelling the Attorney General to investigate defendants’ actions in

this case and also asserted a claim that the Fair Credit Reporting Act is

unconstitutional. The district court subsequently certified this latter claim of

unconstitutionality to the Attorney General pursuant to 28 U.S.C. § 2403, which

allows the United States to intervene in cases questioning the constitutionality of

any Act of Congress affecting the public interest in order to present evidence and

to argue on the question of constitutionality. The United States then entered the

case by filing a motion to dismiss, which it argued at the motions hearing on

April 12, 2002. Pursuant to Fed. R. App. P. 4(a)(1)(B), the addition of the United

States as a party to the action afforded plaintiffs sixty days to file an appeal of the

district court’s final judgment dated April 15, 2002. See United Steelworkers of

Am. v. Jones & Lamson Mach. Co., 854 F.2d 629, 630 (2d Cir. 1988) (holding

that when the United States intervenes pursuant to 28 U.S.C. § 2403, it becomes

a party to the action for purposes of determining the time to appeal). While

a timely notice of appeal is mandatory and jurisdictional, the technical

requirements of the notice itself are liberally construed to avoid injustice.

See Smith v. Barry, 502 U.S. 244, 248-49 (1992). Plaintiffs’ pro se notice of

appeal filed in the proper district court on May 23, 2002, though far from perfect,

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conveyed their intent to appeal the judgment in District Court No. 02-K-88, and is

sufficient for this court to reach the merits of this case. 2

III.

The district court concluded that plaintiffs failed to state a federal claim

and granted defendants’ various motions to dismiss “under the standards set forth

in Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) for evaluating the

complaints of pro se plaintiffs.” R., doc. 127 at 2. Hall permits a district court to

dismiss a complaint for, among other things, failure to state a claim upon which

relief can be granted under Fed. R. Civ. P. 12(b)(6) if it “appears beyond doubt

that the plaintiff[s] can prove no set of facts in support of [their] claim which

would entitle [them] to relief.” Hall, 935 F.2d at 1109 (quotation omitted).

“[W]e review de novo the district court’s grant of a motion to dismiss pursuant to

12(b)(6).” GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381,

1384 (10th Cir. 1997).

While Fed. R. Civ. P. 8(a) requires only “a short and plain statement of the

claim showing that the pleader is entitled to relief,” the court in Hall clarified that

“conclusory allegations without supporting factual averments are insufficient to

2
To the extent that plaintiffs’ notice of appeal also requests a transfer of the
appeal to the United States Court of Appeals for the District of Columbia Circuit,
that request is denied.

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state a claim on which relief can be based.” Hall, 935 F.2d at 1110. In the

present case, plaintiffs’ complaint is wholly conclusory. Moreover, the numerous

and often unnecessary pleadings filed by plaintiffs subsequent to their complaint

have added no facts from which the district court could reasonably conclude that

plaintiffs have stated a viable federal cause of action. Accordingly, we conclude

that Rule 12(b)(6) provides a sufficient basis for dismissal of plaintiffs’ federal

claims.

The district court stated that, to the extent plaintiffs asserted any state law

claims, the court declined to exercise supplemental jurisdiction over them. We

review a district court’s decision to decline supplemental jurisdiction for abuse of

discretion. See Gold v. Local 7 United Food & Commercial Workers Union,

159 F.3d 1307, 1310 (10th Cir. 1998). After reviewing each of plaintiffs’ claims

in the present case, we conclude that the district court did not abuse its discretion

in declining supplemental jurisdiction after it dismissed all of the claims over

which it had original jurisdiction. See 28 U.S.C. § 1367(c)(3) (permitting a

district court to decline to exercise supplemental jurisdiction if the court has

dismissed all claims over which it had original jurisdiction).

Plaintiffs spend much of their brief on appeal making unsubstantiated

arguments that the trial judge was personally biased toward them in this case, that

he improperly refused to disqualify himself, and that he wrongfully imposed

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sanctions on them after dismissing their complaint. We review a district court’s

denial of a motion to recuse, as well as its determination awarding attorney’s fees,

for abuse of discretion. See United States v. Burger, 964 F.2d 1065, 1070

(10th Cir. 1992) (denial of motion to recuse); Smith v. Diffee Ford-Lincoln-

Mercury, Inc., 298 F.3d 955, 968 (10th Cir. 2002) (award of attorney’s fees).

The district court denied plaintiffs’ motion to recuse for failure to meet the

objective standard set forth in 28 U.S.C. § 455. Plaintiffs have not provided,

nor have we found, anything from the record to convince us that the district court

abused its discretion in making this determination or that the trial judge was in

any way biased in this matter. Likewise, plaintiffs have directed us to nothing in

the record to demonstrate the district court acted beyond its settled authority “to

sanction conduct that abuses the judicial process.” Towerridge, Inc., v. T.A.O.,

Inc., 111 F.3d 758, 765 (10th Cir. 1997). As noted previously, the district court

found plaintiffs’ claims to be “patently and egregiously groundless,” a finding

undisputed by plaintiffs in either the district court or in this court on appeal.

Moreover, our review of the record confirms that plaintiffs have acted in bad faith

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in pursuing this litigation. 3
Under the circumstances, the district court did not

abuse its discretion in awarding attorney’s fees to defendants.

This court has often said that “[a] pro se litigant’s pleadings are to be

construed liberally and held to a less stringent standard than formal pleadings

drafted by lawyers.” Hall, 935 F.2d at 1110 (citing Haines v. Kerner, 404 U.S.

519, 520-21 (1972)). Accordingly, due to plaintiffs’ pro se status, we have read

their brief on appeal with tolerance, affording them a great deal of leniency in

articulating their arguments of error. Nevertheless, plaintiffs’ obvious

dissatisfaction with the outcome of their case does not persuade us that the

district court erred in its disposition of this matter. We have carefully reviewed

plaintiffs’ brief under the standard of liberality announced in Haines , and we

conclude that plaintiffs’ remaining allegations of error are without merit. Any

remaining requests for relief by plaintiffs are also denied.

3
We note that, due primarily to plaintiffs’ actions in this case and their
“[g]roundless and vexatious litigation” in related case No. 02-RB-433, the district
court imposed significant filing restrictions on plaintiffs to curb their abusive
litigation tactics. Sri David Conrad Roberts, Fred Patten, and Terry Patten v.
U.S. Marshals Serv., No. 02-RB-433, doc. 34 at 2 (D. Colo. June 4, 2002).

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 IV.

The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

Entered for the Court

Stephen H. Anderson
Circuit Judge

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