F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 25, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
REGINALD D. HODGES,
Plaintiff-Appellant, No. 07-1011
v. (D . of Colo.)
CITY & COUNTY OF DENVER, (D.C. No. 06-cv-1834-ZLW )
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Reginald D. Hodges brought a civil rights action under 42 U.S.C. § 1983
against the City & County of Denver and unnamed employees of the County Jail.
He asserted various violations of the Eighth Amendment’s prohibition on cruel
and unusual punishment including such allegations as (1) a “homing device”
placed in his body during a June 2003 appendectomy, and (2) threats of sexual
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
assault against his family, close friends, and his “manhood” because jailers
“pass[ed] out sex to everybody but me.” Doc. 7 & 8; Aplt. O pening Brief at 2.
These actions allegedly occurred in retaliation for Hodges catching jail staff in
sexual acts.
The magistrate judge recommended Hodges file an amended complaint to
clarify his allegations as he failed to assert personal jurisdiction by properly
naming individual defendants and failed to exhaust his administrative remedies by
either attaching copies of administrative proceedings or describing with
specificity the disposition of the proceedings that pertain to his claims. The
magistrate judge also informed Hodges that municipalities and municipal entities
are not liable under § 1983 solely because their employees inflict injury on a
plaintiff, M onell v. Dep’t of Soc. Servs, 436 U.S. 658, 694 (1978), and that to
state a claim Hodges must demonstrate (1) the existence of a municipal policy or
custom, which (2) directly caused the injury alleged. Hinton v. City of Elwood,
997 F.2d 774, 782 (10th Cir. 1993) (citing City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989)). Hodges filed his amended complaint based on the
magistrate judge’s recommendation. [Order & Judgment at 1-2].
The district court dismissed the amended complaint. Hodges again failed to
identify a policy or custom on the part of the City & County of Denver that led to
any injury. The amended complaint also failed to identify any other defendants
by name or occupation. Hodges merely identified “A Lot of the D efendants were
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Stash from my Site” as additional named defendants to his amended complaint.
Doc. 8. These vague assertions do not satisfy the notice pleading requirements of
the Federal Rules of Civil Procedure.
Finding the City and County of Denver as the only possible defendant, and
since H odges failed to assert arguable claims against the City, the district court
determined Hodges’s claims were legally frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and dismissed his complaint. The district court noted that
Hodges also failed to demonstrate exhaustion of his claims through administrative
remedies, but ultimately chose to dismiss based on legal frivolity without first
requiring exhaustion of remedies under 42 U.S.C. § 1997e(c)(2). 1 Finally, the
district court denied Hodges’s motion to proceed without prepayment of his
appellate filing fee.
Hodges renews his motion to proceed without prepayment of the appellate
filing fee and appeals the district court’s dismissal of his cause of action. W e
review a § 1915(e)(2)(B) dismissal de novo, taking the allegations in the
1
Between the district court decision and our review, a decision of the
United States Supreme Court changed circuit rules regarding exhaustion under the
Prison Litigation Reform Act (PLRA). “[F]ailure to exhaust is an affirmative
defense under the PLRA [so] inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Freeman v. Watkins, 479 F.3d 1257,
1259 (10th Cir. 2007) (quoting Jones v. Bock, 127 S. Ct. 910, 921 (2007).
Therefore, Hodges’s claims could not be dismissed on exhaustion grounds.
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complaint as true. 2 M cBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). For
the same reasons, we agree with the district court finding of frivolity. Hodges has
only named the City & County of Denver as defendant, but has failed to allege a
policy or custom as required to establish § 1983 liability for a municipal entity.
W ithout providing any legally arguable claims against the defendant, his claim is
frivolous. 3
W e A FFIR M the dismissal of Hodges’s § 1983 claims. W e also DENY
Hodges’s motion to proceed in form a pauperis on appeal and order him to pay the
full amount of the filing fee. W e remind him of his obligation to pay the filing
fee even on an appeal that has been dismissed. See Kinnell v. Graves, 265 F.3d
1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not relieve appellant of
the obligation to pay the appellate filing fee in full).
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
2
W e agree with the district court that “the claims that Plaintiff raises [here]
appear to be incredible,” Order & Judgment at 2, but even assuming their
possibility, Hodges has stated no claim for relief.
3
Hodges added the Denver Sheriff Department as a party to his appeal, but
as the Department was not a party to his initial or amended claims before the
magistrate judge and district court, he may not add them on appeal.
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