Chon v. Obama

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 8, 2017
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

TAE H. CHON,

Plaintiff-Appellant,

v. No. 17-4122
(D.C. No. 2:16-CV-00187-DB-BCW)
BARRACK OBAMA; GEORGE W. (D. Utah)
BUSH; JOHN D. ASHCROFT; ERIC
H. HOLDER, JR.; LORETTA
LYNCH; KEITH OLSON; LYNETTE
WINGERT; JOHN MOSEMAN;
ELIAH WISDEN; VERNON G.
STEJSKAL; BRENDA BEATON;
COLLEEN COEBERGH; BRETT
TOLMAN; STEWART WALZ; JEFF
BRIDGE; TRACY CRENO; SAMUEL
ALBA; BRENT BARNES; LINDA
SANDERS; RICHARD IVES; JACK
FOX; GARY BOWERS; FNU
WILLIAMS, Captain; S. WEBSTER;
FNU BREWERS, Unit Manager; FNU
FLORES, Unit Manager; C.
CASTILLO, Unit Manager; J. BESSE,
Unit Manager; V. LIMON, Case
Manager; L. SILVEIRA, Case
Manager; J. HARRIS, Unit Counselor;
B. MAGANA, Unit Counselor; D.
ESCALANTE, Unit Counselor; J.
WEBSTER, Unit Counselor; FNU
HEURING, Education Staff; FNU
DEGREGORIO, Education Staff; FNU
MARSHALL, Education Staff; FNU
LEEDHAM, Education Staff;
MATHEWS HOSKINS, Education
Staff; MATTHEW BROWN,
Education Staff; FNU FOSTER,
Security Team; FNU MURPHY,
Security Team; FNU SUA, Security
 Team; M. CARRIEDO, Security
Team; FNU MILLER, Security Team;
FNU HARA, Security Team; FNU
BROWN, Security Team, a/k/a FNU
Ruelas; FNU BENDA, Security Team;
RICHARD GROSS, Medical Clinic;
FNU SALANDANAN, D.O.
Administrator; FNU RADA; FNU
BLITZ; FNU CASINO; FNU TAN; N.
MCCALL; MARK SHURTLEFF,
Attorney General Office of State of
Utah; JOHN SWALLOW; TYLER
BOELTER; LOMPOC VALLEY
MEDICAL CENTER, a/k/a Lompoc
Healthcare Dist.; STEVEN D.
REICHEL, M.D.; PHILLIP A. WYNN,
M.D.; VISHAL VERMA, M.D.;
UNITED STATES OF AMERICA,

Defendant-Appellees.

ORDER AND JUDGMENT *

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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Judgment is not binding precedent, except under the doctrines of law of the case,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 F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 and T ENTH
C IRCUIT R ULE 32.1.

2
 Pro se 1 Plaintiff-Appellant Tae Chon, a federal inmate in California, seeks

permission to proceed in forma pauperis in order to appeal from the district

court’s dismissal of his complaint, which alleged violations of federal law

pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, and of state law. The district

court dismissed Mr. Chon’s complaint for failure to state a claim, and Mr. Chon

mounts two challenges against that determination on appeal. 2 First, Mr. Chon

contends that the district court erroneously dismissed several civil claims

pertaining to his conviction without first conducting the necessary analysis under

the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). Second, Mr. Chon

asserts that he properly objected to, and therefore preserved his right to challenge,

the dismissal of his First Amendment retaliation claim, which he alleges neither

the magistrate judge nor the district court properly addressed.

We conclude that Mr. Chon’s arguments as to the district court’s dismissal

of the majority of Mr. Chon’s claims are waived. We agree with Mr. Chon,

1
We construe the filings of a pro se litigant liberally, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam), but our role is not to serve as his
advocate, see Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
2
Although Mr. Chon presented four issues for review in his Opening
Brief, two issues—as to the district court’s qualified-immunity determinations,
and its decision to dismiss several Drug Enforcement Administration
defendants—are insufficiently briefed and do not warrant our review. Aplt.’s
Opening Br. at 6B7. “[W]e routinely have declined to consider arguments that are
. . . inadequately presented, in an appellant’s opening brief.” Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). And “[t]his court has not
hesitated to apply this waiver rule to prisoner litigants.” Toevs v. Reid, 685 F.3d
903, 911 (10th Cir. 2012).

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however, that both the magistrate judge and the district court failed to expressly

analyze and resolve his First Amendment retaliation claim. Exercising

jurisdiction under 28 U.S.C. § 1291, we grant Mr. Chon’s request to proceed in

forma pauperis, affirm in part as to the district court’s dismissal of Mr. Chon’s

claims under the Heck doctrine, and vacate and remand in part for further

proceedings as to Mr. Chon’s First Amendment retaliation claim.

I

In 2007, Mr. Chon was convicted under 21 U.S.C. § 841(c)(2) for

possessing pseudoephedrine with knowledge that it will be used to manufacture

methamphetamine. On November 10, 2016, while imprisoned for that conviction,

Mr. Chon filed the operative complaint with the Utah federal district court, suing

the United States and a bevy of more than forty individuals—including Drug

Enforcement Administration (“DEA”) agents, prison officials, and federal

prosecutors. Mr. Chon presented a number of claims, including a Federal Tort

Claims Act (“FTCA”) claim, claims for abuse of process and fraud, and claims

under 42 U.S.C. §§ 1983, 1985, and 1986. See R., Vol. II, at 12 (Am. Compl.,

dated Nov. 10, 2016). Some of the latter civil-rights claims challenge the

constitutionality of the governmental actions leading to his conviction; some

challenge his post-conviction treatment in custody.

A magistrate judge issued a Report and Recommendation (“R & R”)

dismissing all of Mr. Chon’s claims. See id. at 159 (Report and Recommendation,

4
dated Apr. 24, 2017). Mr. Chon filed three sets of objections to the R & R, on

May 11, May 15, and June 14, 2017. The district court adopted the R & R in toto

over Mr. Chon’s objections. See id. at 195 (Order Adopting Report and

Recommendation, dated June 20, 2017).

The R & R dismissed a large number of Mr. Chon’s claims as barred under

Heck v. Humphrey. See id. at 165–66. The magistrate judge found that Mr. Chon

was plainly seeking to invalidate his conviction by filing civil tort actions that

“would necessarily imply the invalidity of his conviction or sentence,” Heck, 512

U.S. at 487, in contravention of the Supreme Court’s holding that “habeas corpus

is the exclusive remedy for a state prisoner who challenges the fact of his

confinement,” id. at 481. See R., Vol. II, at 166 (“Plaintiff’s present suit, in part,

clearly seeks to undermine the validity of his conviction and current confinement,

as prohibited under Heck.”). Accordingly, the magistrate judge held that Mr.

Chon could not proceed on his §§ 1983, 1985, or 1986 claims, or on his claims

for abuse of process and fraud, without first demonstrating that his conviction had

been reversed or otherwise invalidated, which Mr. Chon could not do.

The R & R also discussed an event at Lompoc Federal Correctional

Institution (“Lompoc FCI”) giving rise to Mr. Chon’s § 1985 action for Eighth

Amendment violations and First Amendment retaliation. Mr. Chon alleged in his

complaint that officers at Lompoc FCI forced him to sleep on a “freeway

5
punishment bunk” 3 as punishment for filing a habeas petition and “using the court

system,” and that he suffered severe injuries as a result of falling from the bunk

and from receiving shoddy after-the-fact care from prison doctors. R., Vol. II,

at 30. The R & R dismissed the Eighth Amendment claim arising out of these

events, but was silent as to the First Amendment retaliation claim. As noted, the

district court adopted the magistrate judge’s R & R in full, over Mr. Chon’s

objections, without elaborating on the magistrate judge’s analysis.

II

The Supreme Court held in Heck v. Humphrey that “civil tort actions are

not appropriate vehicles for challenging the validity of outstanding criminal

judgments.” 512 U.S. at 486. “Thus, when a state prisoner seeks damages in a

§ 1983 suit, the district court must consider whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id.

at 487. If it would, then the Heck bar applies, and “the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction is already

invalidated.” Id. If, however, “doctrines like independent source and inevitable

discovery, and especially harmless error,” id. at 487 n.7 (citation omitted), would

allow the court to recognize a constitutional violation while upholding the

conviction itself as constitutional, the Heck bar does not apply, and the “action

3
Unlike typical bunks, “freeway” bunks are located in the walkway
between a row of cells and a wall. Mr. Chon claims that he was forced to sleep on
a freeway bunk that was approximately five-and-a-half feet off the ground.

6
should be allowed to proceed,” id. at 487.

III

Mr. Chon contends that the district court failed to assess whether his claims

under 42 U.S.C. §§ 1983, 1985, and 1986, as well as his abuse-of-process claim

would fall within the Heck doctrine in the first place. He urges us to hold that the

district court neglected to perform the requisite threshold determination mandated

by the Supreme Court: namely, that “district court[s] must consider whether a

judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction.” Id. at 487 (emphases added). Indeed, we have held that “[e]ach of

[the plaintiff’s] claims must be assessed individually to determine whether [they

would be barred under Heck].” Beck v. City of Muskogee Police Dep’t, 195 F.3d

553, 557 (10th Cir. 1999) (disagreeing with the district court’s “blanket

application of Heck to all of Beck’s claims”). Our independent review of the

record does lend support to Mr. Chon’s view that the district court did not

individually assess whether Mr. Chon’s claims would necessarily imply the

invalidity of his conviction.

However, preservation concerns fatally undercut Mr. Chon’s efforts to

secure relief on these claims. Although Mr. Chon properly preserved his Heck

objections as to his abuse-of-process claim, R., Vol. II, at 169 (Obj. to Report and

Recommendation, dated May 11, 2017), he waived them by inadequately arguing

them on appeal. And, as for Mr. Chon’s allegedly Heck-barred civil-rights

7
claims, the merits of those claims are not properly before us because Mr. Chon

failed to preserve them in the manner that our firm-waiver rule demands. A

discussion of these distinct preservation failures follows.

A

Mr. Chon urges us to reconsider the district court’s Heck determination as

to his abuse-of-process claim. We cannot do so because he has failed to

adequately articulate why the abuse-of-process claim eludes the Heck bar.

Specifically, Mr. Chon fails to tell us how any error by the district court in its

Heck analysis prejudiced him. See F ED . R. C IV . P. 61 (“At every stage of the

proceeding, the court must disregard all errors and defects that do not affect any

party’s substantial rights.”); cf. Attorney Gen. of Okla. v. Tyson Foods, Inc., 565

F.3d 769, 782 (10th Cir. 2009) (“[E]ven if this court did find that the district

court failed to comply with Federal Rule of Civil Procedure 52(a), the error would

be harmless and a remand for clarification would not be necessary because we can

ascertain from the record the basis for the denial.”). And it is well established

that “[a]rguments inadequately briefed in the opening brief are waived.” Adler v.

Wal-Mart Stores Inc., 144 F.3d 664, 679 (10th Cir. 1998). This is true even

where the litigant proceeds pro se. See, e.g., Watkins v. Craft, 455 F. App’x 853,

854 (10th Cir. 2012) (unpublished) (applying Adler to insufficiently-argued pro se

claims).

Mr. Chon’s averments as to the abuse-of-process claim are minimal. He

8
briefly invokes abuse of process as an issue presented for review, but does not

otherwise uphold his “responsibility to tie the salient facts, supported by specific

record citation, to [his] legal contentions.” United States v. Rodriguez-Aguirre,

108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (quoting Schaede v. Boeing Co., 72 F.3d

138, *1 (10th Cir. 1995) (unpublished)); see also Cooper v. Cent. & Sw. Servs.,

271 F.3d 1247, 1248 n.2 (10th Cir. 2001) (finding waiver of issue identified in the

“statement of issues presented for review” but “not further argued”). Although

we construe liberally Mr. Chon’s pro se pleadings, “we will not ‘assume the role

of advocate’” and develop his arguments for him. United States v. Parker, 720

F.3d 781, 784 n.1 (10th Cir. 2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927

n.1 (10th Cir. 2008)).

In the absence of adequate appellate briefing, we decline to opine on

whether the district court committed reversible error in its analysis of whether

Mr. Chon’s abuse-of-process claim was properly subject to the Heck doctrine.

We accordingly uphold the district court’s judgment dismissing Mr. Chon’s

abuse-of-process claim on Heck grounds.

B

Mr. Chon’s remaining Heck-based claims fail on a distinct waiver ground—

namely, the firm-waiver rule. “This court has adopted a firm waiver rule under

which a party who fails to make a timely objection to the magistrate judge’s

findings and recommendations waives appellate review of both factual and legal

9
questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).

Although Mr. Chon filed three sets of timely objections to the R & R, none of

them challenged the magistrate judge’s (and, thus, the district court’s) Heck

determinations with regard to any of his claims other than the abuse-of-process

claim discussed supra. 4

There are two exceptions to the application of the firm-waiver rule:

“(1) when a pro se litigant has not been informed of the time period for objecting

and the consequences of failing to object, or when (2) the ‘interests of justice’

require review.” Id. However, neither exception applies to Mr. Chon’s case.

4
Read generously, a single sentence in Mr. Chon’s third objection to
the magistrate judge’s R & R might be construed as presenting an argument that
the magistrate judge should not have applied the Heck doctrine to each of his
civil-rights claims. R., Vol. II, at 190 (“Because the presented civil conspiracy
abuses the trial process by depriving Chon of rights and privileges guaranteed
under U.S. Constitution V and VI (i.e., due process, confrontation, etc.), Hence,
“Heck” does not bar his §§ 1985(2) & (3) and 1986 actions.”). We observe that
“this court has repeatedly instructed that stray sentences like these are insufficient
to present an argument.” Eizember v. Trammell, 803 F.3d 1129, 1141 (10th Cir.
2015). Even construed liberally, Mr. Chon’s one-sentence averment was not
sufficient to put the district court on notice regarding the nature of his Heck-based
challenge to the magistrate judge’s resolution of his civil-rights claims. See
Lockert v. Faulkner, 843 F.2d 1015, 1019 (10th Cir. 1988) (holding that district
courts “should not have to guess what arguments an objecting party depends on
when reviewing a magistrate’s report”). It is well-settled law that “only an
objection that is sufficiently specific to focus the district court’s attention on the
factual and legal issues that are truly in dispute will advance the policies behind
the Magistrate’s Act that led us to adopt a waiver rule in the first instance.”
United States v. 2121 E. 30th St., 73 F.3d 1058, 1060 (10th Cir. 1996). Guided
by the foregoing authority, we are not inclined to deviate from application of our
firm-waiver rule based on Mr. Chon’s one stray sentence.

10
 The first exception is unavailing, as the magistrate judge clearly counseled

Mr. Chon as to the applicable objection deadlines, and as to the consequences of

failing to object to the conclusions reached in her R & R. R., Vol. II, at 168. The

second exception is similarly foreclosed. Having requested (and received) a time

extension, Mr. Chon was clearly aware of the deadlines to file objections. And,

by raising Heck objections in the abuse-of-process context, Mr. Chon

demonstrated he had the knowledge and ability to object when he desired to do

so. Under these circumstances, we are disinclined to give Mr. Chon the benefit of

the second exception. See Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir.

2008) (declining to apply the second exception where plaintiff was aware of filing

deadline and failed to adequately account for his failure to comply). In light of

these facts, we are unpersuaded that the “interests of justice” exception militates

in favor of declining to apply the firm-waiver rule. 5

***

5
Even absent application of the firm-waiver rule, we would still not
reach the merits of Mr. Chon’s Heck-based arguments with respect to his civil-
rights claims because—through inadequate appellate briefing—Mr. Chon has
waived these arguments. See, e.g., Bronson, 500 F.3d at 1104. Mr. Chon does
not articulate how any of his civil-rights claims might survive Heck. He does not
present argument as to how—for example, by operation of doctrines like
inevitable discovery or harmless error, Heck, 512 U.S. at 487 n.7—his particular
causes of action might not necessarily invalidate the bases of his conviction.
Without the benefit of developed argumentation as to how Mr. Chon’s many
claims might fare under Heck, we “cannot make arguments for him,” United
States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011), and would not reach
the issue.

11
 In sum, Mr. Chon failed to preserve through inadequate appellate briefing

his Heck-based contentions of reversible error with respect to the district court’s

ruling regarding his abuse-of-process claim and he cannot proceed on like

arguments with respect to his civil-rights claims because they are barred by the

firm-waiver rule. We therefore affirm the Heck aspect of the district court’s

judgment.

IV

Mr. Chon also contends that the district court failed to address his First

Amendment retaliation claim. We tend to agree.

In his complaint, Mr. Chon alleged that various prison personnel at Lompoc

FCI conspired to retaliate against him for “using the court system.” R., Vol. II,

at 30. The magistrate judge’s R & R discussed the events at Lompoc FCI but

only ruled on the related Eighth Amendment claim. See id. at 166–168. There

was no explicit disposition of Mr. Chon’s First Amendment retaliation claim. Mr.

Chon twice objected to this oversight. First, on May 15, 2017, Mr. Chon filed an

objection asserting that “[t]he magistrate overlooked” his § 1985 conspiracy

claims, for, inter alia, “Claims I-VII” (Claim VII referred to the First Amendment

retaliation claim). Id. at 176. Then, on June 14, 2017, 6 Mr. Chon renewed this

6
Although Mr. Chon’s third set of objections was filed on June 14,
2017, two days after the district court’s extended deadline of June 12, 2017, Mr.
Chon’s filing was timely pursuant to the prison mailbox rule. F ED . R. A PP . P.
4(c)(1); see also Prince v. Philpot, 420 F.3d 1158, 1164 (10th Cir. 2005) (prison
mailbox rule applies to an inmate’s filing of a civil-rights complaint).

12
contention, specifically asserting that a retaliation claim existed under 42 U.S.C.

§ 1985. See id. at 190.

Mr. Chon’s repeated request—that is, for the district court to address what

the magistrate judge did not—apparently went unanswered. Although the district

court acknowledged receipt of Mr. Chon’s objections to the magistrate judge’s

recommendations, it adopted the R & R without modification—viz., without

apparently rectifying the magistrate judge’s oversight in failing to consider the

First Amendment retaliation claim. See id. at 195–196.

As Mr. Chon correctly observes, F EDERAL R ULE OF C IVIL P ROCEDURE

72(b)(3) requires the district court to “determine de novo any part of the

magistrate judge’s disposition that has been properly objected to.” Aplt.’s

Opening Br. at 8 (citing F ED . R. C IV . P. 72(b)(3)); see also 28 U.S.C.

§ 636(b)(1)(C) (providing that “[a] judge of the court shall make a de novo

determination of those portions of the [magistrate judge’s] report or specified

proposed findings or recommendations to which objection is made”). However,

we can discern no indication in the record that the district court recognized Mr.

Chon’s First Amendment retaliation claim, much less assessed the magistrate

judge’s handling of it de novo.

Where a district court has failed to resolve a claim, we generally prefer to

remand so that the court can address the claim in the first instance. See Tabor v.

13
Hilti, Inc., 703 F.3d 1206, 1227 (10th Cir. 2013) (“Where an issue has not been

ruled on by the court below, we generally favor remand for the district court to

examine the issue.”); cf. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the

general rule, of course, that a federal appellate court does not consider an issue

not passed upon below.”). It is certainly preferable for an appellate court

considering a claim to have the benefit of “a reasoned district court decision

resolving it.” Sylvia v. Wisler, --- F.3d ----, 2017 WL 5622916, *14 (10th Cir.

2017).

Moreover, absent “unusual circumstances,” we “ordinarily remand a case

where there is a serious question whether the [district] court conducted the

requisite de novo review” of the magistrate judge’s report. Duarte v. Hurley, 185

F.3d 874, *1 (10th Cir. 1999) (unpublished). Remand is appropriate here because

there is—at the very least—a serious question about whether the district court

conducted the requisite de novo review of the magistrate judge’s report and Mr.

Chon’s objections thereto with respect to Mr. Chon’s First Amendment retaliation

claim.

Nor are there unusual circumstances—such as the futility of

remand—militating against the application of the general rule. Both Mr. Chon’s

operative complaint, see R., Vol. II, 30–32, and his appellate brief, Aplt.’s

Opening Br. at 8, address the merits of his retaliation claim with citation to

relevant authority. Cf. United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir.

14
1996) (“He has waived this issue by failing to make any argument or cite any

authority to support his assertion.”). And, while it is true that the district court

dismissed a large number of defendants related to the Lompoc FCI incident on

immunity-based grounds, it is unclear if all potential defendants would be

shielded from liability with respect to Mr. Chon’s First Amendment retaliation

claim. In view of the circumstances present here, we cannot conclude that

remand would be futile, and we are disinclined to delve into a merits-based

evaluation of Mr. Chon’s First Amendment retaliation claim without the benefit

of a reasoned decision from the district court.

V

For the foregoing reasons, we REMAND the case to the district court with

instructions to VACATE in part its judgment and address in the first instance the

merits of Mr. Chon’s First Amendment retaliation claim, and AFFIRM in part

the district court’s judgment dismissing Mr. Chon’s remaining claims under Heck.

Because we conclude that Mr. Chon has sufficiently demonstrated “the

existence of a reasoned, nonfrivolous argument on the law and facts in support of

the issues raised on appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th

Cir. 1991), we GRANT his request to proceed in forma pauperis. However, we

15
remind Mr. Chon that he must continue making payments until the entire balance

of his appellate filing fee is paid.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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