FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSDecember 16, 2020
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
SPENCER THOMAS CATO,
Plaintiff - Appellant,
v. No. 20-5061
(D.C. No. 4:19-CV-00087-GKF-FHM)
SKYLER HARGROVE; J.T. (N.D. Okla.)
SNODDY; HEATH BROWNELL,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
After examining the appellate briefs and the appellate record, this court has
concluded 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This order and judgment is not binding precedent except under the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.
Proceeding pro se, Spencer Thomas Cato appeals the dismissal of the civil
rights action he brought pursuant to 42 U.S.C. § 1983. In his complaint, Cato
sought compensatory and punitive damages for injuries he claims to have suffered
during a 2017 arrest by officers from the Tulsa Police Department. The arrest led
to Cato’s Oklahoma convictions for drug and firearm offenses, resisting an
officer, driving under suspension, and failure to carry insurance/security
verification forms.
On May 31, 2019, the district court ordered the preparation of a Martinez
report. 1 Shortly after submitting the Martinez report, Defendants moved to
dismiss Cato’s § 1983 suit. In a comprehensive Opinion and Order, the district
court detailed a myriad of defects with Cato’s complaint. As to Cato’s First
Amendment claims, the district court concluded the facts alleged in Cato’s
amended complaint failed to state a plausible claim that Defendants used
excessive force because Cato engaged in speech protected by the First
Amendment. Likewise, the complaint also contained insufficient facts to support
a plausible claim that Defendants placed a substantial burden on, or interfered
with, Cato’s right to exercise his religion. As to Cato’s Eighth Amendment
claims, the district court concluded any excessive force claims Cato has against
Defendants arise under the Fourth Amendment, not the Eighth Amendment. See
1
Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978).
-2-
Porro v. Barnes, 624 F.3d 1322, 1325 (10th Cir. 2010) (stating that excessive
force claims related “to the events leading up to and including an arrest of a
citizen previously at liberty” are governed by the Fourth Amendment).
The district court next addressed Cato’s Fourteenth Amendment claims.
The court concluded any due process claim must be brought under the Fourth
Amendment because the alleged use of excessive force occurred during Cato’s
arrest. See id. at 1325-26. The court further concluded Cato’s complaint failed to
state a plausible equal protection claim because it contained no facts from which a
reasonable jury could conclude Defendant Brownell treated him differently than
similarly situated arrestees. 2 Finally, after concluding all of Cato’s Fourth
Amendment false-arrest and excessive-force claims implicitly challenge the
validity of his state convictions for traffic offenses and resisting an officer, the
district court dismissed those claims as barred by Heck v. Humphrey, 512 U.S.
477, 486-87 (1994) (“In order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
2
Cato alleged Defendant Brownell failed to intervene in the other
defendants’ use of excessive force.
-3-
make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.”).
After Defendants’ motion to dismiss was granted, Cato filed a motion to
alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure. The district court denied relief under Rule 59(e), concluding Cato’s
“motion only mentions the underlying judgment in passing and does not allege
any errors or mistakes” in the judgment. In an abundance of caution, the district
court also analyzed Cato’s motion under Rule 60(b)(1), interpreting the motion as
raising an assertion that Cato’s failure to timely respond to Defendants’ motion to
dismiss was excusable neglect. The court concluded Cato was not entitled to
relief under Rule 60(b)(1) because he failed to establish excusable neglect and
failed to demonstrate extraordinary circumstances for relief. The court’s
determination rested, in part, on (1) the fact all three prison transfers that
allegedly impeded Cato’s ability to file a response occurred after the time expired
for him to file a timely response and (2) Cato never sought permission to file an
out-of-time response to Defendants’ motion to dismiss.
In his appellate brief, Cato asserts the district court erred by not analyzing
his motion to alter or amend the judgment under Fed. R. Civ. P. 6(b), a rule
referenced for the first time in Cato’s reply brief. Under Rule 6(b)(1)(B), a
district court may allow a party to file an out-of-time pleading if the party can
-4-
show excusable neglect. This court has reviewed Cato’s motion to alter or amend
the judgment and it fails to request permission to file an out-of-time pleading.
Further, the district court concluded Cato could not show excusable neglect under
Fed. R. Civ. P. 60(b) for his failure to file a response to Defendants’ motion to
dismiss, 3 thereby resolving any Rule 6(b)(1)(B) request against Cato.
Having reviewed the record and the arguments of the parties, we conclude
the dismissal of Cato’s § 1983 complaint without prejudice was proper and the
district court did not abuse its discretion in denying Cato’s motion to alter or
amend the judgment. Accordingly, we affirm the district court’s dismissal of
Cato’s complaint for substantially the reasons stated in the district court’s order
dated May 27, 2020. Cato’s motion to proceed in forma pauperis on appeal is
3
To the extent Cato argues the district court erred by striking the second
amended complaint he filed on June 10, 2020, the record shows that Cato filed an
amended complaint on August 23, 2019. See Fed. R. Civ. P. 15(a) (providing a
party may amend a pleading one time without seeking leave of court if the
amendment occurs before a responsive pleading is served). Cato summarily
requested permission to file a second amended complaint in a pleading filed on
June 3, 2020, and styled, Motion for Enlargement of Time. However, he never
filed a formal motion requesting permission to file the second amended
complaint. See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180,
1186 (10th Cir. 1999) “([N]ormally a court need not grant leave to amend when a
party fails to file a formal motion.”). Further, the second amended complaint was
received by the district court nearly two weeks after judgment was entered in
favor of Defendants. See id. at 1186–87 (“If a party seeks to amend a pleading
following the court’s grant of a motion to dismiss, the party must first move to
reopen the case under Fed. R. Civ. P. 59(e) or 60(b) and then file a motion under
Fed. R. Civ. P. 15 for leave to amend pursuant to the standards set out in Fed. R.
Civ. P. 7.).
-5-
granted. We construe his Request to Take Judicial Notice, filed with this court
on December 9, 2020, as a motion to file an out-of-time reply brief. Defendants
mailed their brief to Cato on October 22, 2020. Because Cato does not explain
why he was unable to file a reply brief by the November 16 deadline, his motion
is denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-6-