F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 1 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES C. WALDO,
Plaintiff-Appellant,
v.
SALT LAKE COUNTY SHERIFF’S
DEPARTMENT; AARON D.
KENNARD, Sheriff; JIM BELL, No. 03-4060
Undersheriff; ROBERT BEEMUS, (District of Utah)
Captain; PAUL CUNNINGHAM, (D.C. No. 01-CV-222-ST)
Corrections Bureau Chief; SUSAN
BIESELE, Human Resources Manager;
LLOYD PRESCOTT, Retired Captain;
LORI HOUSKEEPER, Lieutenant;
TROY DIAL, Captain; JOHN
MERRICK, Retired Lieutenant,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
After examining the appellant’s brief and the 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.
Charles Waldo, proceeding pro se, appeals the district court’s dismissal of
his civil rights complaint. Waldo, a former employee of the Salt Lake County
Sheriff’s Office, sued that office and various individuals under Title VII, the
Americans with Disabilities Act, and § 1983 (alleging a violation of his First
Amendment rights to free speech); he also set out a state-law based claim of
constructive discharge. 1 The matter was referred to a magistrate judge for initial
proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge
recommended that the Title VII claim be dismissed because Waldo had not
alleged any facts in his complaint that could support such a claim other than the
conclusory assertion that he had been subjected to a “hostile work environment.”
The magistrate judge further noted that Waldo could not maintain a Title VII suit
against the individual defendants, even those who were Waldo’s supervisors,
because they were not employers within the meaning of Title VII. See Sauers v.
Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993). Likewise, Waldo could not
1
In fact, these claims were set out in a series of three complaints filed on
April 2nd, April 4th, and April 19th of 2001.
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maintain a suit against the individuals in their personal capacity under the ADA.
See Butler v. City of Prairie View Village, 172 F.3d 736, 744 (10th Cir. 1999). In
any event, the magistrate noted that the allegations in Waldo’s complaint wholly
failed to demonstrate that he was “disabled” within the meaning of the ADA.
With regard to Waldo’s First Amendment claim, the magistrate noted as follows:
The “amended” complaint is not in proper form. The statement
plaintiff alleges was the basis for defendants’ adverse action against
plaintiff is not set out in any manner nor are the particulars of the
alleged actions, by defendants, in response to it. The defendants are
not identified in the caption of the complaint as required by Rule
10(a) F.R.C.P., nor their individual actions identified. The pleading
does not set forth an amended complaint meeting Rule 7 & 8
F.R.C.P. standards. Therefore, the complaint is not in such a form
that the court can determine if it is frivolous or if the claim meets the
substantive standards of Pickering v. Bd. of Educ., 391 U.S. 563
(1968).
Having concluded that it was appropriate to dismiss all of Waldo’s federal claims,
the magistrate judge recommended that the district court decline to exercise
jurisdiction over Waldo’s state-law based constructive discharge claim. Finally,
the magistrate judge recommended that the dismissal of Waldo’s claims be
without prejudice and that he “be allowed, within twenty (20) days of any order of
dismissal, to submit a third amended complaint on his First Amendment, Title
VII, and ADA claims if he has a basis in law and fact.”
Upon de novo review, the district court adopted the report and
recommendation and dismissed Waldo’s claims. The district court reopened the
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case, however, when Waldo filed a third amended complaint as allowed under the
district court’s order of dismissal. The district court nevertheless concluded that
although Waldo had supplemented his ADA claim by setting forth allegations
relating to arm and neck injuries, the injuries alleged still did not qualify as
disabilities under the ADA. As to the remaining matters, the district court noted
that Waldo had simply “restated and repackaged his previous complaint” without
curing the deficiencies identified in the magistrate judge’s report and
recommendation. Accordingly, the district court dismissed Waldo’s third
amended complaint and closed the case.
This court has considered Waldo’s appellate filings and the entire appellate
record. We have also conducted a de novo review of the district court’s order of
dismissal. See Perkins v. Kan. Dept. of Corr., 165 F.3d 803, 806 (10th Cir. 1999)
(“We agree with our sister circuits that a [] de novo standard should govern
review of dismissals under § 1915(e)(2)(B)(ii).”). That review reveals no trace of
reversible error. Accordingly, this court AFFIRMS the district court’s order of
dismissal for substantially those reasons set out in the magistrate judge’s report
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and recommendation dated May 1, 2001, and the district court’s order dated
March 13, 2003.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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