F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 18, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
STEVEN M AC AR THU R; M ICH ELLE
LYM AN ; HELEN VA LDEZ,
Plaintiffs - Appellants, No. 05-4317
and
NATHAN IEL PENN; CANDA CE
LA W S; PA U L K EITH ; D O RO THY
K EITH ; LIN D A CA CA PA RD O; SUE
B URTO N ; A M Y TER LA A K ; ALISON
D ICKSO N ; C AN D A CE H O LIDAY;
N ICOLE R OB ER TS; D O N N A
SINGER; FRED RIGGS,
Plaintiffs,
v.
SA N JU A N CO U N TY ; SA N JUAN
HEALTH SERVICES DISTRICT; J.
TYRON LEW IS, Commissioner; BILL
REDD, Commissioner; CRAIG
H A LLS; R EID M . WO O D ; C LEAL
B RA D FO RD ; R OG ER ATC ITTY;
JO H N LEWIS; JO H N
HOUSEK EEPER; KAREN ADAM S;
PA TSY SH U MW A Y ; JA M ES D.
REDD; L. VA L JON ES; M AN FRED
R . N ELSO N ; R IC HA RD BA ILEY;
M AR ILEE BAILEY; OR A LEE
BLACK; GARY H OLLADA Y; LORI
W ALLACE, also known as Laurie
W alker; CARLA GRIM SHAW ;
GLORIA YANITO; JULIE
BRONSON; LAURIE SCHAFER;
LYN STEVENS, San Juan County
Commissioner,
Defendants - A ppellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D.C. No. 2:00-CV-584-BSJ)
Susan Rose, Sandy, Utah, for Plaintiffs - Appellants.
Carolyn Cox (and Blaine J. Benard, on the brief), Holme, Roberts & Owen,
L.L.P., Salt Lake City, Utah, for Defendant - Appellee San Juan Health Services
District.
Robert R. Harrison, Snow , Christensen & M artineau, Salt Lake City, Utah, for
Defendants - Appellees.
Jesse Trentadue, (M ichael W . Homer and Thomas B. Price), Salt Lake City, Utah,
for D efendant - Appellee San Juan County.
Before KELLY, EBEL, and M cCO NNELL, Circuit Judges.
KELLY, Circuit Judge.
Plaintiffs-Appellants M ichelle Lyman and Helen Valdez (“Plaintiffs”)
appeal the dismissal of eighteen claims brought against Defendants-Appellees San
Juan County, San Juan Health Services District (“SJHSD ”), and numerous
employees of those entities. The district court held a pretrial conference,
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pursuant to Fed. R. Civ. P. 16, and dismissed the majority of these claims w ith
prejudice; it declined to exercise jurisdiction over the remaining state-law claims,
dismissing them without prejudice. Our jurisdiction arises under 28 U.S.C. §
1291, and we dismiss the appeal as frivolous.
Background
M rs. Lyman is a licensed physician’s assistant who worked under the
supervision of various SJHSD physicians beginning in 1995. 1 After leaving Dr.
James Redd’s supervision in October 1998, M rs. Lyman claims she began to
experience difficulty exercising her staff privileges at SJH SD facilities. 2 In
December 1999, she requested a renewal of her privileges, but her request was
delayed, ostensibly due to missing CPR certification cards in her file. She
provided copies of the cards, but she asserts that the dates on the cards had been
altered. M rs. Lyman alleges a multitude of claims relating to her request to renew
her privileges as well as the harassment and discrimination she allegedly suffered
at the hands of Dr. Redd and SJHSD staff.
M rs. Valdez asserts claims of discriminatory treatment arising from her
visit to the San Juan Hospital emergency room on April 14, 1999. Shortly after
1
Pursuant to Utah law, a physician’s assistant may only practice medicine
under the supervision of a licensed physician. See Utah Code Ann. § 58-70a-501.
2
Dr. Redd became SJHSD medical staff director in early 1999.
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her arrival, M rs. Valdez overheard Defendant Lori W allace, an emergency room
nurse, tell the clerk that she would arrange for M rs. Valdez to be seen by a
physician. M rs. Valdez then went to the restroom, and when she returned, her
sister-in-law reported having overheard M s. W allace tell the clerk that M rs.
Valdez should go to her doctor’s office, which would be opening soon. Although
no SJHSD employee said this directly to M rs. Valdez or her sister-in-law, M rs.
Valdez decided to leave the emergency room without having been seen by a
doctor. She brought claims seeking $350,000 to compensate for “the badge of
inferiority she was made to wear as she left the facility she had sought help from,
not being able to see the provider of her choice, [and] not being able to feel as
though she could return to a facility in M onticello for fear of L[ori] W allace.” R.
Doc. 742, at 17 (quoting Am. Compl. at 92-93).
At a pretrial conference held on November 14-15, 2002, the district court
dismissed sixteen of the Plaintiffs’ claims due to pleading deficiencies and an
utter lack of factual support in the record. 3 The Plaintiffs subsequently filed
3
The district court dismissed the following claims for pleading
deficiencies: (1) civil Racketeer Influenced Corrupt Organizations (RICO) Act
claims; (2) Freedom of Access to Clinic Entrances (FACE) A ct claims; (3) H ealth
Care Quality Improvement Act (HCQIA) claims; (4) M edicare Patient Bill of
Rights claims; (5) 42 U.S.C. § 1981 claims; (6) 42 U.S.C. § 1985 claims; (7) Utah
constitutional claims; (8) Utah Unfair Practices A ct claims; (9) U tah Civil Rights
Act claims; (10) Utah contract law claims; (11) Health Insurance Portability and
Accountability Act (HIPA A) claims; (12) claims under Utah law for negligent
infliction of emotional distress; and (13) fraud claims under Utah law. It further
(continued...)
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several motions for reconsideration, which the district court denied. In June
2005, the court filed a 192-page order memorializing its rationale and granting the
Plaintiffs’ motion to file an amended complaint nunc pro tunc.
Discussion
M rs. Lyman and M rs. Valdez argue on appeal that (1) the district court’s
judgment was procured by fraud entitling them to an entry of judgment by this
court, (2) the district court abused its discretion in dismissing their claims relying
on law arising after its oral ruling, and (3) the defendants waived qualified
immunity by failing to raise it early in this litigation. The D efendants,
understandably upset about the quality of the arguments to w hich they must
respond, ask us to dismiss this appeal because the issues have not been adequately
presented. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per
curiam) (“A skeletal ‘argument’, really nothing more than an assertion, does not
preserve a claim.”). W e choose instead to dismiss because the Plaintiffs’
3
(...continued)
held that the Plaintiffs’ federal antitrust claims w ere barred by statutory immunity
and that the facts in the record could not support their 42 U.S.C. § 1983 claims as
a matter of law . Finally, the court recognized that the Plaintiffs had moved to
dism iss the Emergency M edical Treatment and Active Labor Act (EM TALA)
claims; in any case, the court held that these claims could not succeed on the
merits given the facts in the record. Accordingly, the court dismissed these
claims with prejudice. The court also held that several state-law claims had been
sufficiently pled, but it declined to exercise supplemental jurisdiction over these
claims and dismissed them w ithout prejudice.
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contentions are frivolous.
I.
The rules of appellate procedure are designed to facilitate efficient
appellate review by allowing one’s adversary to respond to focused argument
supported by authority. The adversarial process cannot properly function when
one party ignores its obligations under the rules. Here, the Defendants have
expended significant amounts of time and money responding to prolix pleadings
and frivolous contentions. The district court and two panels of this court have
been forced to wade through a swamp of incoherent arguments in hope of
accomplishing a merits review. All of this wasted effort could have been avoided
if Plaintiffs’ counsel had followed the relevant rules of procedure.
Sadly, vague and conclusory court filings are nothing new for these
litigants. The district court criticized Plaintiffs’ counsel for “shuffling each
plaintiff’s factual allegations and legal assertions together as one would a deck of
playing cards, sacrificing narrative sequence in favor of argumentative
characterizations and conclusory assertions.” R. Doc. 742, at 179. It also noted
that some of the allegations raised “serious concerns under Fed. R. Civ. P. 11.”
Id. at 46 n.40. In a prior related appeal before this court, we noted the “profound
lack of clarity” in the brief and catalogued its other deficiencies. See M acArthur
v. San Juan County, 309 F.3d 1216, 1218 (10th Cir. 2002). The clerk has also
“caution[ed] [Plaintiffs’ counsel] to take better care in drafting her pleadings” in
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response to deficient filings in this appeal.
Despite these warnings, counsel has persisted in ignoring the rules of
appellate procedure. For example, Fed. R. App. P. 28(a)(6) requires the brief to
include “a statement of the case briefly indicating the nature of the case, the
course of proceedings, and the disposition below.” The statement here fails in all
respects. See Aplt. Br. at 3-5. It does not mention a single one of the Plaintiffs’
eighteen causes of action, instead reciting a rambling list of factual assertions. It
does not discuss the proceedings below , nor does it describe the district court’s
resolution of the case.
Pursuant to Fed. R. App. P. 28(a)(7), the brief must include “a statement of
facts relevant to the issues submitted for review with appropriate references to the
record . . . .” (emphasis added). Rather than concentrating on the issues noted
above, the Plaintiffs offer a flood of factual allegations relevant only to the merits
of the underlying case. Indeed, they have included no facts w hatsoever relating to
the second and third issues presented. This is simply not adequate.
Similarly, the Plaintiffs have failed to heed Fed. R. App. P. 28(a)(9)(A),
which requires the argument section to contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.” The opening brief cites only three cases. The abuse of
discretion section does not contain a single case citation, and the qualified
immunity section does not cite a single case relevant to the underlying argument.
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“[M ]ere conclusory allegations with no citations to the record or any legal
authority for support” does not constitute adequate briefing. Garrett v. Selby
Connor M addux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).
Finally, Fed. R. App. P. 28(a)(9)(B) requires an appellant’s brief to include
“for each issue, a concise statement of the applicable standard of review . . . .”
The words “standard of review” do not appear anywhere in the Plaintiffs’ briefs.
The omission of such a basic component of an appellate brief is inexcusable.
It is indisputably within our power as a court to dismiss an appeal when the
appellant has failed to abide by the rules of appellate procedure, and any one of
the inadequacies we have catalogued is sufficiently egregious to justify doing so. 4
See, e.g., Fryar v. Curtis, 485 F.3d 179, 182 n.1 (1st Cir. 2007); Amnesty Am. v.
Town of W . Hartford, 361 F.3d 113, 133 (2d Cir. 2004); Anderson v. Hardman,
241 F.3d 544, 545-46 (7th Cir. 2001). However, “[w]here an appellant has
provided defective briefs, the court in its discretion may scrutinize the merits of
the case insofar as the record permits . . . .” Fryar, 485 F.3d at 182 n.1 (internal
4
W e also note that the Plaintiffs’ briefs are replete with errors of spelling
and grammar, and the prose is often incomprehensible. See, e.g., Aplt. Br. at 7
(“The biggest piece of evidence that the Plaintiffs are correct in that State and
Federal government has not legislatively granted authority to the District to limit
license authorities, beyond determining if the person is licensed and in good
standing with a reputable background, is the simple fact that the District could not
just say no, you can’t have them.”); id. at 19 (“The Deposition of M rs. Lyman,
reflecting patients reports to her of being afraid of being in a life threatening way,
and Dr. Redd telling them they can’t use D istrict facilities.”).
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quotation marks and alterations omitted). Here, in spite of numerous violations of
the appellate rules, we understand enough about the Plaintiffs’ arguments to
conclude that they are meritless. Accordingly, we decline to dismiss for failure to
abide by the rules of appellate procedure.
II.
There is a difference, however, between understanding the Plaintiffs’
arguments and judging them w orthy of a full merits review. W e have long
recognized our “inherent authority” to dismiss an appeal presenting “no arguably
meritorious issue for our consideration.” United States v. Hahn, 359 F.3d 1315,
1329 n.15 (10th Cir. 2004) (en banc) (per curiam). Here, all three of the
Plaintiffs’ arguments are frivolous; accordingly, we dismiss their appeal.
The Plaintiffs first argue that the district court’s w ritten order is void due to
fraud on the court. A litigant seeking to establish fraud on the court must prove
that the district court relied on fraudulent statements in rendering its decision.
See Herring v. United States, 424 F.3d 384, 390 (3d Cir. 2005). Here, the district
court dismissed the Plaintiffs’ claims due to pleading deficiencies, and this
decision was w holly independent of any allegedly fraudulent merits arguments
made by defense counsel. Furthermore, a litigant may not raise a fraud on the
court argument for the first time on appeal; rather, the issue must first be
presented to the court in which the alleged fraud was perpetrated. Taft v.
Donellan Jerome, Inc., 407 F.2d 807, 809 (7th Cir. 1969); see also Indian Head
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Nat. Bank of Nashua v. Brunelle, 689 F.2d 245, 249-52 (1st Cir. 1982)
(discussing two narrow exceptions to this general rule). W e find no indication in
the record that the Plaintiffs raised a fraud on the court claim in the district court,
dooming their argument to failure.
The Plaintiffs next argue that the district court abused its discretion in
dismissing their claims. Rule 16(c) clearly permits the district court to dismiss
claims that do not present a genuine issue for trial at the pretrial conference. See
Chavez v. Ill. State Police, 251 F.3d 612, 654 (7th Cir. 2001); see also 6A Charles
Alan W right et al., Federal Practice & Procedure § 1529, at 301 (2d ed. 1990).
M oreover, the two sentences (w ith no legal citations) devoted to this issue are
utterly insufficient to trigger a merits review. See Craven v. Univ. of Colo. Hosp.
Auth., 260 F.3d 1218, 1226 (10th Cir. 2001) (“W e w ill not manufacture
arguments for an appellant, and a bare assertion does not preserve a claim . . . .”).
In other words, this argument is also frivolous.
Finally, the Plaintiffs argue that the Defendants have waived qualified
immunity by failing to plead or otherw ise assert it early in the litigation. W e
have consistently held, however, that “qualified immunity can be raised at any
time and a district court may enter . . . judgment on that ground at any point
before trial at which it is appropriate.” Langley v. Adams County, 987 F.2d 1473,
1481 n.3 (10th Cir. 1993) (internal quotation marks omitted). The Plaintiffs’
argument to the contrary–presented in four sentences without the support of any
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relevant authority and without any reasoned argument for a departure from our
long-standing precedent–is frivolous.
D ISM ISSED .
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