FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 10, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
JONATHAN D. STONE,
Plaintiff - Appellant,
v. No. 20-1311
(D.C. No. 1:20-CV-00835-LTB-GPG)
JEFFERSON COUNTY DETENTION (D. Colo.)
FACILITY; JEFFERSON COUNTY
SHERIFF’S DEPARTMENT,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Pro se plaintiff Jonathan Stone appeals the dismissal by the United States District
Court for the District of Colorado of his complaint asserting claims under 42 U.S.C.
§ 1983 against the Jefferson County Detention Facility and Jefferson County Sheriff’s
Department. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
*
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
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 This order and judgment is not binding precedent, except under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.
Mr. Stone was a pretrial detainee at the Jefferson County Detention Facility. His
complaint alleges that in February 2020 he was working in his “module” at the facility
when an inmate from another module attacked him without provocation, causing serious
injuries that required hospitalization for five days. He alleges that Defendants provided
“inadequate supervision and control of subordinates” at the time of the attack, Aplt. App.
at 21, that one deputy “did not try as hard as he should have to separate the scuffle before
serious injury occurred,” id. at 22, and that the deputies should have known not to bring
the other inmate from a different module because “there is an active keep separate order”
in the facility’s information database, to which all deputies have access, id. at 19–20. He
claims that his Eighth Amendment rights were violated by the deliberate indifference of
jail personnel.
The magistrate judge assigned to the case reviewed the complaint under 28 U.S.C.
§ 1915, identified certain deficiencies, and, on June 1, 2020, issued an order giving Mr.
Stone 30 days to file an amended complaint (the June 1 Order). Several days later the
court received a letter from Mr. Stone in which he stated that he was no longer detained
at the Jefferson County Detention Facility and that he did not yet have a permanent
address, although he would have one soon. He provided a phone number. The June 1
Order was later returned to the court as undeliverable. Mr. Stone never filed a new
complaint.
On July 9, 2020, the magistrate judge filed a report and recommendation
recommending that Mr. Stone’s complaint be dismissed as legally frivolous under 28
U.S.C. § 1915(e)(2)(B). It advised Mr. Stone that he had 14 days after service to raise
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any objections and that failure to file written objections could bar de novo review by the
district judge and preclude further appellate review. A copy sent to Mr. Stone was
returned as undeliverable, and Mr. Stone filed no objections to it. On August 6, 2020, the
district court adopted the report and recommendation and dismissed the action. The
district court’s order also was returned as undeliverable. On September 3, Mr. Stone
filed this appeal.
On appeal Mr. Stone asserts that he never responded to the June 1 Order because
he was homeless and had no address where he could receive mail. He asks us to
“reinstate” his case. Aplt. Br. at 2, 4. He also has filed a motion to proceed in forma
pauperis.
“This court has adopted a firm waiver rule which provides that a litigant’s failure
to file timely objections to a magistrate’s [report and recommendation] waives appellate
review of both factual and legal determinations.” Vega v. Suthers, 195 F.3d 573, 579
(10th Cir. 1999) (internal quotation marks omitted). But because Mr. Stone asserts that
he “had no address to receive mail,” Aplt. Br. at 2, “[f]or purposes of this appeal we will
assume that [Mr. Stone] did not receive the magistrate’s report through no fault of his
own and address this case on the merits,” Bryant v. Scott, 216 F.3d 1086, 2000 WL
827696, at *1 (10th Cir. 2000) (unpublished table opinion).
“We generally review a district court’s dismissal for frivolousness under § 1915
for abuse of discretion,” unless the dismissal turns on an issue of law, in which case we
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review de novo. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).1 Under either
standard, we agree with the district court that Mr. Stone’s claims were inadequately
pleaded. As the magistrate judge said, the defendants named in Mr. Stone’s complaint—
the Jefferson County Detention Facility and the Jefferson County Sheriff’s Department—
are not suable entities under § 1983. See Martinez v. Winner, 771 F.2d 424, 444 (10th
Cir. 1985) (City of Denver Police Department “is not a separate suable entity”), cert.
granted, judgment vacated on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138
(1986). And even if we construe the complaint to assert claims against Jefferson County
itself, Mr. Stone fails to allege that any county policy or custom caused his injuries and
therefore fails to satisfy the requirements for holding the county liable. See Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). For these reasons,
the district court did not err in dismissing Mr. Stone’s complaint.2
As for Mr. Stone’s alleged homelessness, if he was in fact homeless, and if that
homelessness prevented him from receiving and timely responding to the district court’s
orders, he may have grounds to reopen the deadline by which he must amend his
1
We note, however, that “in two unpublished cases, we have . . . called [the abuse-of-
discretion] standard into doubt, seeing as the Supreme Court case that created it, Denton
v. Hernandez, 504 U.S. 25, 33–34 (1992), was based on an older version of the relevant
statute.” Rollins v. Fisch, 696 F. App’x 856, 858 n.2 (10th Cir. 2017) (citing Lowe v.
Sockey, 36 F. App’x 353, 356 (10th Cir. 2002), and Basham v. Uphoff, No. 98-8013,
1998 WL 847689, at *4 n.2 (10th Cir. Dec. 8, 1998)). Because Mr. Stone’s appeal fails
even under de novo review, we need not address the proper standard of review.
2
Because we affirm on the above grounds, we have no need to consider whether Mr.
Stone’s allegations meet the deliberate-indifference standard necessary to state a failure-
to-protect claim. See Farmer v. Brennan, 511 U.S. 825, 834–35 (1994).
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complaint. See Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) (“[P]ro se
litigants are to be given reasonable opportunity to remedy the defects in their
pleadings.”). But even though we are sensitive to the challenges faced by a homeless pro
se litigant, this is not the proper court to examine the facts and consider relief in the first
instance. See Sabol v. Snyder, 524 F.2d 1009, 1011 (10th Cir. 1975) (“It is obviously not
the function of the appellate court to try the facts or substitute for the trial court in the
determination of factual issues.”). Mr. Stone did not challenge in district court any of
that court’s orders on the grounds of homelessness, and no evidence was submitted on the
matter. Even after entry of judgment, he could have sought relief through a motion under
Federal Rule of Civil Procedure 60(b), but he did not.3
We AFFIRM the district court’s order dismissing the complaint. We also
GRANT Mr. Stone’s motion to proceed in forma pauperis, but we remind him of his
obligation to continue making partial payments until the entire appellate filing fee is paid.
Entered for the Court
Harris L Hartz
Circuit Judge
3
We perceive nothing in the Federal Rules that would prevent Mr. Stone from filing
such a motion in the district court after the resolution of this appeal.
5