FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 31, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
BENJAMIN W. FAWLEY,
Plaintiff - Appellant,
No. 20-2032
v. (D.C. No. 2:18-CV-01139-WJ-SCY)
(D.N.M.)
DAVID JABLONSKI; R.C. SMITH,
Warden; HAROLD CLARKE,
Director, Va. D.O.C.; SUSANA
MARTINEZ, Governor, State of
New Mexico,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
The district court ordered dismissal without prejudice of Mr.
Benjamin W. Fawley’s civil rights action, concluding that he disobeyed a
court order. Mr. Fawley appeals. But he doesn’t challenge the district
court’s reasoning, so we affirm.
*
Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate brief and the record on
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
I. The district court dismissed the action without prejudice because
Mr. Fawley failed to comply with a court order.
Mr. Fawley, a prisoner, sued for constitutional violations under 42
U.S.C. § 1983. The district court excused Mr. Fawley from filing
obligations pending the court’s screening of his claims. See 28 U.S.C.
§ 1915A. But Mr. Fawley and other prisoners then filed over 50 motions,
supplements, and notices. Because of the numerous filings, the district
court ordered Mr. Fawley to file a single, legible amended complaint on a
court form that contained the relevant allegations.
Mr. Fawley filed an amended complaint, but he raised claims under
every clause of the U.S. Constitution and submitted numerous addenda that
alleged various other violations. Mr. Fawley and other prisoners then filed
over 230 pages of addenda and other motions.
The district court dismissed the action without prejudice for failure
to comply with the court’s order to file a single amended complaint. See
Fed. R. Civ. P. 41(b).
II. Mr. Fawley alleges district court bias, but he does not challenge
the district court’s reasoning for dismissing the action without
prejudice.
As a pro se litigant, Mr. Fawley’s arguments are entitled to liberal
construction. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009). Though we liberally construe these allegations, we can’t construct
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arguments for Mr. Fawley. See id. (“[T]his rule of liberal construction
stops, however, at the point at which we begin to serve as his advocate.”)
“The first task of an appellant is to explain to us why the district
court's decision was wrong.” Nixon v. City & Cty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015). But Mr. Fawley has not said what’s wrong
with the district court’s reasoning. Instead of addressing the district
court’s reasoning, Mr. Fawley argues the merits of his claims, alleges that
a medical condition prevented him from complying with the order, and
accuses the district judge of bias.
But he doesn’t explain how the medical condition prevented
compliance. He states that a handicap prevented him from legibly writing
his documents. But his appeal brief is legibly handwritten.
He also accuses the district judge of bias. To illustrate the bias, Mr.
Fawley criticizes the district judge’s enforcement of the Federal Rules of
Civil Procedure. But our precedent requires all litigants, even those who
are pro se, to comply with the Federal Rules of Civil Procedure. Ogden v.
San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Though Mr. Fawley
states that these rules are not in his prison’s law library, the district judge
cannot be faulted for complying with our precedent.
Mr. Fawley further urges bias based on the district court’s failure to
appoint counsel. But Mr. Fawley has no right to appointed counsel. See
Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). And we discern
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no bias in the district court’s decision to require Mr. Fawley himself to file
a single, legible amended complaint.
Mr. Fawley also states that the Prison Litigation Reform Act requires
judges to abandon neutrality. He is presumably referring to the requirement
that judges screen complaints for failure to state a valid claim and
frivolousness. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). But the Prison
Litigation Reform Act is a federal law, and the district judge cannot be
faulted for complying with federal law.
We thus find no error in the decision to order dismissal for failure to
comply with an order.
III. We deny Mr. Fawley’s petition for a writ of mandamus and two
motions.
Mr. Fawley also seeks a writ of mandamus for the district court to
provide a copy of its order excusing Mr. Fawley from additional filings.
Mr. Fawley says that he never received the order.
A writ of mandamus is a “drastic remedy, and is to be invoked only
in extraordinary circumstances.” In re Cooper Tire & Rubber Co., 568 F.3d
1180, 1186 (10th Cir. 2009) (internal quotations and citation omitted).
Three requirements exist for a writ of mandamus:
1. There must be no other adequate means to attain relief.
2. The petitioner must show that his right to a writ of mandamus
is “clear and indisputable.”
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3. The issuing court “must be satisfied that the writ is appropriate
under the circumstances.”
Id. at 1187. A writ of mandamus isn’t appropriate because Mr. Fawley has
failed to show the unavailability of other means for him to obtain the
order. (Though mandamus is unwarranted, we request the court clerk to
mail Mr. Fawley a copy of the order.)
Mr. Fawley has also submitted two motions:
1. “Motion to Bar Respondent Brief and or Oral Argument” and
2. “Motion to Assert Grounds for Naming
Appellee(s)/Defendant(s) to Whom U.S. District Court, Dist. of
N.M. Has Issue.”
In his first motion, Mr. Fawley alleges that he didn’t receive the
respondent’s amended brief. The respondent’s amended brief, however,
includes a certificate of service. We have no way of knowing whether
(1) the respondent failed to mail the brief, (2) the postal service
misdelivered the mail, or (3) prison authorities failed to give Mr. Fawley
his mail. So we deny the motion to bar the respondent’s brief. (But we ask
the court clerk’s office to send a copy of the brief to Mr. Fawley.)
Mr. Fawley’s second motion largely argues the merits of his claims,
and we are unable to determine what Mr. Fawley seeks from this court. We
thus deny the motion.
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IV. Conclusion
Because Mr. Fawley doesn’t say what’s wrong with the district
court’s reasoning, we affirm the dismissal of the complaint without
prejudice. We also decline to issue a writ of mandamus and deny Mr.
Fawley’s two motions. But we ask the clerk to mail Mr. Fawley
the district court order to file a single amended complaint and
the respondent’s amended brief.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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