Wilson v. State of Oklahoma

FILED
United States Court of Appeals
Tenth Circuit

April 9, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

DAVID WILSON,

Plaintiff-Appellant,

STATE OF OKLAHOMA; CITY OF
OKLAHOMA CITY; COUNTY OF
OKLAHOMA; OKLAHOMA
COUNTY BOARD OF COUNTY
COMMISSIONERS; OKLAHOMA
COUNTY JAIL; OKLAHOMA CITY
POLICE DEPARTMENT; UNITED No. 13-7061
STATES DEPARTMENT OF (D.C. No. 6:13-CV-00117-RAW)
JUSTICE; VETERANS (E.D. Okla.)
ADMINISTRATION HOSPITAL,
Oklahoma City; VETERANS
ADMINISTRATION OF
MUSKOGEE; VETERANS
ADMINISTRATION OF ST. PAUL;
FEDERAL BUREAU OF
INVESTIGATION, Oklahoma;
OKLAHOMA STATE BUREAU OF
INVESTIGATION,

Defendants-Appellees.

ORDER AND JUDGMENT *

*
After examining the briefs and appellate record, this panel has
decided 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judgment is not binding precedent, except under the doctrines of law of the case,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
(continued...)
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.

David Lee Wilson, proceeding pro se 1 and in forma pauperis (“IFP”),

appeals from the district court’s order dismissing his complaint with prejudice.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We also deny Mr.

Wilson’s motion for appointed counsel as moot, and revoke his IFP status.

Mr. Wilson has filed over forty frivolous or otherwise meritless lawsuits in

the U.S. District Court for the Western District of Oklahoma since 2005. On

November 29, 2012, after affording Mr. Wilson notice and an opportunity to

respond, that district court imposed filing restrictions that (1) enjoined Mr.

Wilson from filing pro se civil actions in the Western District; and (2) established

a procedure under which any future pro se pleadings submitted by Mr. Wilson

would be reviewed by the Chief Judge of the Western District. When Mr. Wilson

attempted to file pro se pleadings on February 6, 2013, the Chief Judge “denied

*
(...continued)
value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit
Rule 32.1.
1
We construe Mr. Wilson’s filings liberally because he appears pro se.
See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010); Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).

2
approval for these cases to be filed,” R. at 12 (Letter from Dist. Ct. Clerk, dated

Feb. 13, 2013), presumably for noncompliance with these filing restrictions.

On March 22, 2013, Mr. Wilson filed a civil-rights complaint in the Eastern

District of Oklahoma, pursuant to 42 U.S.C. § 1983, wherein he vaguely alleged,

inter alia, “adverse possession[ ]” and “abuse of process” by several

governmental defendants. Id. at 9–10 (Compl., filed Mar. 22, 2013). Mr. Wilson

requested money damages, and injunctive relief—namely, for the court to allow

“an investigation” and to “observe any filing” he might lodge. Id. at 9. Various

defendants subsequently filed four separate motions to dismiss for failure to state

an actionable claim.

On September 3, 2013, the district court issued an order dismissing the

complaint with prejudice, concluding that Mr. Wilson (1) was improperly

attempting an end-run around the Western District’s filing restrictions; and (2)

had stated no legally cognizable claim as to any defendant. This appeal followed.

“Generally speaking, we review de novo a district court’s ruling on a

motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim.” 2 ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d

2
While there appear to be multiple bases to uphold the district court’s
judgment, we deem it sufficient to hold that the district court correctly determined
(continued...)

3
1163, 1171 (10th Cir. 2011). In so doing, we “accept as true all well-pleaded

facts, as distinguished from conclusory allegations, and view those facts in the

light most favorable to the nonmoving party.” Moya v. Schollenbarger, 465 F.3d

444, 455 (10th Cir. 2006) (internal quotation marks omitted). Our task is to

determine whether the plaintiff has alleged facts sufficient to make his claims

facially plausible, which is the standard to avoid dismissal. See Kerber v. Qwest

Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”).

“The court’s function on a Rule 12(b)(6) motion is . . . to assess whether

the plaintiff’s complaint alone is legally sufficient to state a claim for which relief

may be granted.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)

(internal quotation marks omitted). In a § 1983 action, the complaint must

specify “the violation of a right secured by the Constitution and laws of the

United States, and . . . that the alleged deprivation was committed by a person

acting under color of state law.” Bruner v. Baker, 506 F.3d 1021, 1025–26 (10th

Cir. 2007) (internal quotation marks omitted). When governmental entities are

named as defendants, the plaintiff is obliged to “demonstrate a direct causal link

2
(...continued)
that Mr. Wilson’s action fails to state a claim.

4
between the [entity’s] action and the deprivation of federal rights.” Schneider v.

City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir. 2013) (internal

quotation marks omitted).

Our practice of liberally construing pro se filings “stops . . . at the point at

which we begin to serve as [the plaintiff’s] advocate.” United States v. Pinson,

584 F.3d 972, 975 (10th Cir. 2009). It is not our office to “supply additional

factual allegations to round out a plaintiff’s complaint or construct a legal theory

on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th

Cir. 1997). Moreover, we consider it beyond cavil that a district court “[does] not

err in refusing to attempt to create order out of chaos[, i.e., when] [t]he complaint

failed to state a claim under any conceivable matching of allegations.” Glenn v.

First Nat’l Bank in Grand Junction, 868 F.2d 368, 372 (10th Cir. 1989).

Mr. Wilson’s complaint can be fairly called chaotic for several reasons.

Critically, the allegations contained therein do not “make clear exactly who is

alleged to have done what to whom, to provide each [defendant] with fair notice

as to the basis of the claims.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,

1215 (10th Cir. 2011) (internal quotation marks omitted); see also Pahls v.

Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (stressing “the need for careful

attention to particulars, especially in lawsuits involving multiple defendants”).

Although Mr. Wilson makes known his desire to have appointed counsel so he

5
can investigate and serve various papers, he presents no facts or legal theories

that might justify the relief he seeks. This deficiency is fatal, even in the pro se

context. See McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001) (“Although

pro se complaints . . . are held to less stringent standards than formal pleadings

drafted by lawyers, the [basic] pleading hurdle is not automatically overcome.”

(citation omitted) (internal quotation marks omitted)).

Mr. Wilson’s complaint can also be construed as an attempt to re-litigate

unsuccessful actions in the Western District involving his prior arrests and

incarcerations. See R. at 84 n.1 (Order, filed Nov. 29, 2012) (enumerating several

of his lawsuits which terminated with entries of final judgment). However, Mr.

Wilson is not entitled to mount yet another challenge to the issues decided in

those proceedings, or to any issues that could have been settled therein (if,

indeed, that is what he seeks here). In this circuit, all claims stemming from one

transaction “must . . . be presented in one suit or be barred from subsequent

litigation.” Plotner v. AT & T Corp., 224 F.3d 1161, 1169 (10th Cir. 2000)

(quoting Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997))

(internal quotation marks omitted); cf. Jarrett v. Gramling, 841 F.2d 354, 357

(10th Cir. 1988) (noting our acceptance of the Oklahoma Supreme Court’s view

that “relief must be sought in one suit or stand barred by the prior adjudication”).

We regularly uphold the dismissal of “vexatious, abusive, or stubbornly litigious”

filings, see Lorillard Tobacco Co. v. Engida, 611 F.3d 1209, 1219 (10th Cir.

6
2010) (internal quotation marks omitted), and we are constrained to do the same

in Mr. Wilson’s case.

In sum, we conclude that the district court did not err in finding that Mr.

Wilson failed to state a claim under Rule 12(b)(6) and that dismissal with

prejudice was appropriate. We therefore affirm the district court’s dismissal of

Mr. Wilson’s complaint on that basis. 3

Under the IFP statute, a federal district court “may authorize the

commencement . . . of any suit [or] action . . . without prepayment of fees.” 28

U.S.C. § 1915(a)(1). IFP status ensures “equal treatment for every litigant before

the bar.” Coppedge v. United States, 369 U.S. 438, 447 (1962). Nonetheless,

“[l]eave to proceed without prepayment of fees and costs is a privilege,” Treff v.

Galetka, 74 F.3d 191, 197 (10th Cir. 1996), and we have “discretion to revoke

that privilege when it no longer serves its goals,” Strope v. Cummings, 653 F.3d

1271, 1273 (10th Cir. 2011) (internal quotation marks omitted). From our

vantage point, despite fair and patient treatment by the district courts, Mr. Wilson

3
We note that Mr. Wilson requested leave to supplement his opening
brief with various handwritten documents that he attempted to file in our court on
January 9, 2014. The motion does not explain why Mr. Wilson should be allowed
to submit these documents when he has already filed a reply brief. Because the
motion merely offers more frivolous allegations that bear no relation to Mr.
Wilson’s appeal, we deny it.

7
persists in vexatious litigation. We therefore conclude that he is no longer

entitled to IFP status and revoke it.

III

We affirm the district court’s with-prejudice dismissal of Mr. Wilson’s

complaint and, in light of our disposition of the matter, deny as moot Mr.

Wilson’s motion for appointment of counsel. Mr. Wilson’s IFP status is revoked,

and he is ordered to pay any remaining balance of the appellate filing fee.

Entered for the Court

JEROME A. HOLMES
Circuit Judge