FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 10, 2014
Elisabeth A. Shumaker
Clerk of Court
VICKI DILLARD CROWE,
Plaintiff-Appellant,
v. No. 13-1221
(D.C. No. 1:12-CV-02266-LTB)
SGT. MATT CLARK; LT. DAVID (D. Colo.)
AFSHAR; SGT. RICHARD SEELEY;
OFFICER ABEITA, in their official and
individual capacities; THE CITY AND
COUNTY OF DENVER, a Municipality;
KATHLEEN BENTON; FRANK H.
INGHAM; GARY GREGORY; ROY
SANCHEZ; SUSAN ROYBAL;
MS. PIERCE, in their official and
individual capacities,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before GORSUCH, ANDERSON, and HOLMES, 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Vicki Dillard Crowe, proceeding pro se,1 appeals the dismissal of her civil
rights complaint alleging constitutional and statutory violations stemming from the
foreclosure of her Denver, Colorado home and her subsequent eviction from it. The
district court dismissed the action for lack of jurisdiction and as legally frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i). Defendants, all of whom were allegedly
involved in the eviction, were never served and neither answered the complaint nor
responded to this appeal. For the reasons that follow, we affirm the district court’s
judgment.
I
Ms. Dillard Crowe is no stranger to this court. We previously rejected her
challenges to the state foreclosure and eviction proceedings, concluding that federal
review of those state court judgments was barred by the Rooker-Feldman doctrine.2
See Dillard v. Bank of New York, 476 F. App’x 690, 691-92 (10th Cir. 2012)
(unpublished). We have also twice considered associated appeals brought by
Ms. Dillard Crowe’s mother, Patricia Evans, who lived as a guest at the property and
was evicted along with Ms. Dillard Crowe. See Evans v. Bank of New York Tr. Co.
(In re Evans), 506 F. App’x 741 (10th Cir. 2012) (unpublished); Evans v. Bank of
New York (In re Evans), 465 F. App’x 763 (10th Cir. 2012) (unpublished). Most
1
We liberally construe Ms. Dillard Crowe’s pro se materials. See Firstenberg
v. City of Santa Fe, 696 F.3d 1018, 1024 (10th Cir. 2012).
2
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fid. Trust Co., 263 U.S. 413, 415-16 (1923).
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recently, we rejected Ms. Dillard Crowe’s criminal appeal from her convictions on
multiple counts of mail and wire fraud resulting from her participation in a mortgage
fraud scheme. See United States v. Dillard Crowe, 735 F.3d 1229 (10th Cir. 2013).
In this case, Ms. Dillard Crowe asserted eighteen claims against the
individuals and entities who she says were responsible for wrongfully evicting her
and her mother. According to the amended complaint, there was no legal authority
for evicting her, and defendants therefore violated her rights under the Fourth
Amendment by unlawfully searching and seizing her home; the Fourteenth
Amendment by depriving her of property; the Sixth Amendment by denying her a
speedy trial and preventing her from confronting witnesses; and the Eighth
Amendment by exacting cruel and unusual punishment in seizing her property.
Ms. Dillard Crowe also brought municipal liability claims under 42 U.S.C. § 1983, a
conspiracy claim under 42 U.S.C. § 1985, several RICO claims, see 18 U.S.C.
§ 1964(c); 18 U.S.C. § 1503; 18 U.S.C. § 1513, and multiple claims under Colorado
law.
The district court, after granting Ms. Dillard Crowe leave to proceed in forma
pauperis (“IFP”), see 28 U.S.C. § 1915, ruled that her claims either were barred by
Rooker-Feldman or were legally frivolous. More specifically, the court ruled that it
lacked jurisdiction under the Rooker-Feldman doctrine to the extent Ms. Dillard
Crowe’s Fourth Amendment claim challenged the state-court order authorizing the
eviction. To the extent she challenged her treatment during the eviction rather than
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the eviction itself, the court found that her Sixth, Eighth, and Fourteenth Amendment
claims were frivolous because the matter was not a criminal proceeding and she held
no interest in the property. Moreover, without any underlying violation, the court
ruled that Ms. Dillard Crowe’s municipal liability claims were moot. As for her
RICO claims, the court ruled they were frivolous because Ms. Dillard Crowe failed to
allege an enterprise or injury and invoked inapplicable provisions of the RICO
statute. Also frivolous was Ms. Dillard Crowe’s § 1985 claim because she failed to
allege the elements of a conspiracy under § 1985(2) or a race-based, discriminatory
animus as required by § 1985(3). Finding no valid federal claim, the court declined
to exercise supplemental jurisdiction over the state-law claims and dismissed the suit
with prejudice.
Ms. Dillard Crowe now appeals these rulings and also contends the district
court improperly refused to consider an attachment to her amended complaint. We
review the district court’s dismissal de novo, Miller v. Deutsche Bank Nat’l Trust Co.
(In re Miller), 666 F.3d 1255, 1260 (10th Cir. 2012); Fogle v. Pierson, 435 F.3d
1252, 1259 (10th Cir. 2006), and agree that this case was properly dismissed.
II
Ms. Dillard Crowe first contends the district court erred in refusing to consider
an attachment to her amended complaint, which she captioned, “An Elucidation of
the Claims.” R., Vol. 1 at 103-112. The document effectively reiterated the amended
complaint, and the district court therefore found it repetitive and inappropriate under
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Federal Rule Civil Procedure 8. Because Rule 8 requires a “short and plain statement
of the claim showing that the pleader is entitled to relief,” and the attachment merely
repeated Ms. Dillard Crowe’s claims, the district court did not err in refusing to
consider the attachment.
Ms. Dillard Crowe next contends the district court erred as a factual matter in
applying the Rooker-Feldman doctrine. She insists defendants lacked authorization
to evict her because the state court stayed its writ of restitution and there was thus no
effective state-court judgment to bar federal review. But as Ms. Dillard Crowe well
knows from her previous appeal, the state court that stayed the writ of restitution
subsequently ruled that its stay order was moot and that its previous order for
possession was effective against all occupants of the property. See Dillard v. Bank of
New York, No. 11-1379, R., Vol. 1 at 419-20. There is thus no merit to Ms. Dillard
Crowe’s contention that the district court improperly invoked Rooker-Feldman.
Nor is there any merit to Ms. Dillard Crowe’s remaining arguments. Although
she contends her Eighth Amendment claim was valid because police cited her mother
with criminal trespassing, the “Eighth Amendment’s proscription against cruel and
unusual punishment is only applicable following a determination of guilt after a trial
or plea,” Weimer v. Schraeder, 952 F.2d 336, 340 n.5 (10th Cir. 1991) (internal
quotation marks omitted). At the time of the eviction, Ms. Dillard Crowe had not
been convicted of any crime and as a consequence her Eighth Amendment
protections were not implicated. And absent an underlying violation, her § 1983
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claims for municipal liability were indeed moot. See Olsen v. Layton Hills Mall,
312 F.3d 1304, 1317-18 (10th Cir. 2002) (“We will not hold a municipality liable for
constitutional violations when there was no underlying constitutional violation by
any of its officers.” (internal quotation marks and brackets omitted)).3
Ms. Dillard Crowe also protests the dismissal of her conspiracy claim under
§ 1985, asserting the district court should have liberally construed it as a claim under
§ 1985(2). But the district court did evaluate § 1985(2) and recognized there were no
allegations to support such a claim. See Timmerman v. U.S. Bank, N.A., 483 F.3d
1106, 1124 (10th Cir. 2007) (explaining that a claim under § 1985(2) arises when
there is a conspiracy to deter a party or witness from attending or testifying in a
federal court proceeding or to obstruct justice).
This leaves Ms. Dillard Crowe’s RICO claims. As we understand her brief,
Ms. Dillard Crowe’s only contention is that the district court erred in finding that she
failed to allege an enterprise. See Bixler v. Foster, 596 F.3d 751, 761 (10th Cir.
2010) (setting forth elements of a RICO claim under § 1962: “(1) conduct (2) of an
enterprise (3) through a pattern (4) of racketeering activity”) (internal quotation
marks omitted). The district court ruled that she failed to allege an enterprise
3
Without explaining why, Ms. Dillard Crowe urges us to reverse the dismissal
of her Sixth and Fourteenth Amendment claims if we affirm the dismissal of her
Eighth Amendment claim. We decline to consider this or any other inadequately
developed argument. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)
(“[W]e routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.”).
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separate and apart from the racketeering activity, but Ms. Dillard Crowe insists an
enterprise is apparent from defendants’ alleged wrongdoing during the eviction.
We agree with the district court’s conclusion that Ms. Dillard Crowe failed to
allege an enterprise, but we clarify that an enterprise need not exist separate and apart
from a pattern of racketeering activity. See United States v. Hutchinson, 573 F.3d
1011, 1020-21 (10th Cir. 2009) (discussing Boyle v. United States, 556 U.S. 938, 946
(2009)). To qualify as an association-in-fact enterprise, “a group must have ‘[1] a
purpose, [2] relationships among those associated with the enterprise, and
[3] longevity sufficient to permit these associates to pursue the enterprise’s
purpose.’” Id. (quoting Boyle, 556 U.S. at 946 (alterations omitted)). The group
must have a common purpose to engage in a course of conduct, but that purpose need
not exist “beyond or independent of the group’s pattern of racketeering activity.” Id.
Here, Ms. Dillard Crowe attempts to define an enterprise by defendants’
alleged wrongdoing during the eviction, but she fails to identify any common purpose
or course of conduct. Although she claimed defendants attempted to detain and
kidnap her, presumably to show a pattern of racketeering, this says nothing about the
existence of any ongoing criminal enterprise. The district court was therefore correct
to dismiss this claim.
III
Finally, Ms. Dillard Crowe has requested leave to proceed on appeal IFP.
“[T]o succeed on a motion to proceed IFP, the movant must show a financial inability
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to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous
argument on the law and facts.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312
(10th Cir. 2005). We deny IFP because Ms. Dillard Crowe has failed to advance any
non-frivolous arguments. Her pending motion to modify the preliminary assessment
of fees is accordingly denied, and she is directed to pay the filing and docketing fees
forthwith.
The judgment of the district court is affirmed.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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