Ombe v. Cook

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 24, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
HITOSHI OMBE,

Plaintiff - Appellant,

v. No. 20-2166
(D.C. No. 2:20-CV-00786-RB-GBW)
GEORGE COOK; JESSICA MARTINEZ; (D. N.M.)
JEFFREY ANDERSON; VICTORIA
CURLEY; LAWRENCE VILLANUEVA;
DOMINIC VILLANEUVA; CLINE
CORNERS; CLINES CORNER TRAVEL
CENTER; CLINES CORNERS
OPERATING COMPANY; CLINES
CORNERS RETAIL CENTER, LLC;
CLINES CORNERS REAL ESTATE,
LLC; CLINES CORNERS PROPERTY,
LLC; T-BIRD, INC; EL MERCADO DEL
SOL, INC,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before TYMKOVICH, Chief Judge, BRISCOE 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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
 Plaintiff Hitoshi Ombe appeals the district court’s sua sponte dismissal, under

28 U.S.C. § 1915(e)(2), of his claims for employment discrimination. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

Mr. Ombe worked as a cashier at Clines Corners Travel Center. A former

university professor and mathematician, he was diagnosed with autism later in life

and reports he has also suffered from depression and anxiety.

Mr. Ombe sued his former employers alleging violations of the Americans

with Disabilities Act (ADA), 42 U.S.C. § 12112(a); Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(a)(1); and the Civil Rights Act of 1866, 42 U.S.C.

§ 1981(a). He also pled state tort claims. Mr. Ombe had previously raised similar

claims in three lawsuits he filed in 2016, and he described the instant case as a

continuation of the first.1 See R. at 38 (“The plaintiff filed this case with the US

District Court for the District of New Mexico on 10/07/16”). The district court

consolidated and dismissed Mr. Ombe’s earlier claims, and we affirmed. See Ombe

v. New Mexico, 755 F. App’x 754, 756–57, 760 (10th Cir. 2018) (“Ombe I”).

1
While the claims in Ombe I also related to Mr. Ombe’s employment, the
defendants there included the State of New Mexico and Disability Rights of New
Mexico, Inc., a nonprofit agency, as well as employees and individuals connected
with those entities. Mr. Ombe alleged those defendants did not provide adequate
assistance to him in his efforts to secure employment better suited to his interests and
abilities and failed to accommodate his disabilities when they worked with him. See
755 F. App’x at 756–57. Here, he sought relief from the convenience store where he
worked as a cashier, alleging discriminatory treatment and discharge.
2
 In this action, Mr. Ombe’s complaint specified “[t]his claim has to do with the

plaintiff[’s] employment with the defendants. It lasted from April 2011 to October

2016.” R. at 38. The complaint stated the Equal Employment Opportunity

Commission (EEOC) issued a “right to sue” letter on July 11, 2016. See id. After

issuing a show-cause order and reviewing Mr. Ombe’s response thereto, the district

court dismissed the federal claims due to the expiration of the statute of limitations

and declined to exercise supplemental jurisdiction over the remaining state-law

claims. Mr. Ombe now appeals.

DISCUSSION

Because Mr. Ombe proceeds pro se, we construe his arguments liberally, but

we “cannot take on the responsibility of serving as [his] attorney in constructing

arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005). Mr. Ombe argues throughout his briefs that, due

to his disability, he is entitled to an even more favorable construction than we

normally afford to pro se litigants. See Opening Br. at 17 (“The trouble is that

[Garrett] is a pre-standards case determined in 2005 (the standards are in effect since

01/01/09) and the disability factor is totally absent in it. It is a[] totally incorrect

precedent.”); id. at 24 (“[L]iberal interpretation of pleadings is insufficient to protect

my rights.”); Aplt. App. B1 at 4 (“Not only [is Garrett] outdated, but also the

disability factor is completely missing from the cited case.”). We previously rejected

similar arguments in Ombe I, and we do so again here. See 755 F. App’x at 758

(“Mr. Ombe is mistaken in believing that the district court was required to disregard

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the legal rules that govern civil lawsuits in response to his cognitive and mental

health issues or his pro se status.”). 2

We review de novo the district court’s dismissal under 28 U.S.C. § 1915(e)(2)

for failure to state a claim upon which relief can be granted. See Perkins v. Kan.

Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). We likewise review de novo

“[w]hether a court properly applied a statute of limitations,” Nelson v. State Farm

Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005), but “[w]e review the

district court’s refusal to apply equitable tolling for an abuse of discretion.”

Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (internal quotation

marks omitted).3

2
As in Ombe I, see 755 F. App’x at 758 & n.3, Mr. Ombe’s briefs and
submissions are laced with unnecessary and unfounded invective directed at the
district court. See, e.g., Opening Br. at 9 (“[The district court judge] failed to
observe[] disability principle and judicial principle. He mindlessly or negligently
observed bureaucratic principle.); id. at 30 (“Judges and lawyers are too complacent
and smug. This is their attitudinal problem.”); id. at 45 (“[The district court judge]
has miserably and totally failed on this essential requirement. And he has been
penalizing me all the time for the consequence of his total failure. He has been
deliberately refusing to have even one hearing when he does not know the nature of
autism disability at all. This is because he has false pride based on his position.”);
Aplt. App. B1 at 2 (“Here, [the district court judge] processed the matter as the
mindless or thoughtless bureaucratic routine.”); id. at 9 (“Clearly, I am a victim of
these ignorant bureaucrats with titles of judicial officials.”); id. at 11 (“Thoughtless,
mindless, and ignorant bureaucrats – defendants and judges – and lawyers forced me
to swallow the above totally insulting and senseless nonsense.”).
3
Mr. Ombe does not challenge the district court’s decision not to exercise
supplemental jurisdiction over his state-law claims, so we do not consider that issue
further. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not
raised in the opening brief are deemed abandoned or waived.” (internal quotation
marks omitted)).
4
 The statute of limitations for Mr. Ombe’s Title VII and ADA claims ran ninety

days after the EEOC’s issuance of its “right to sue” letter. See 42 U.S.C. § 2000e–

5(f)(1); E.E.O.C. v. W.H. Braum, Inc., 347 F.3d 1192, 1198 (10th Cir. 2003) (“[O]nce

the EEOC determines not to pursue the charge, the employee has ninety days from

receipt of the right to sue letter in which to file suit.”); id. at 1197 (“Title I [of the

ADA] expressly adopts the statutory scheme of Title VII.”). The EEOC issued its

right to sue letter in July 2016; therefore, the statute of limitations expired in October

2016. The statute of limitations for Mr. Ombe’s § 1981 claim is three years, see

Garcia v. Univ. of Kan., 702 F.2d 849, 850 (10th Cir. 1983) (“[S]ince there is no

applicable federal statute of limitations relating to civil rights actions brought under

section[] 1981 . . ., federal courts must apply the most appropriate one provided by

state law.”) (internal quotation marks omitted), overruled in part on other grounds by

Garcia v. Wilson, 731 F.2d 640, 643 (10th Cir. 1984); N.M. Stat. Ann. § 37-1-8

(“Actions must be brought . . . for an injury to the person . . . within three years.”). It

therefore ran no later than October 2019, three years after the end of his employment.

Mr. Ombe did not file his claims until August 2020, so all three of his federal claims

were time-barred.

In his first issue on appeal, Mr. Ombe does not dispute the statutes of

limitations had expired, but he argues the district court should have equitably tolled

them. “Generally, equitable tolling requires a litigant to establish two elements:

(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

5
circumstance stood in his way.” Yang v. Archuleta, 525 F.3d 925, 928

(10th Cir. 2008) (internal quotation marks omitted.).

The district court declined to equitably toll the statutes of limitations in part

because, notwithstanding the severity of Mr. Ombe’s mental impairment, it “was not

so extraordinary as to prevent him from actively prosecuting his other civil rights

cases from August 2014 through February 2018, appealing the final judgment, and

filing a petition for writ of certiorari in May 2019.” R. at 202. We discern no abuse

of discretion in this conclusion. It was reasonable for the district court to conclude

that having conducted multiple federal lawsuits against other defendants from

inception to appeal within the statute of limitations, Mr. Ombe could not credibly

assert that he faced an extraordinary circumstance that prevented him from timely

filing a claim against these defendants.

In his second issue on appeal (“How the court must respond to the poor, i.e.,

pro se litigants in order to avoid to generate undue issues like the First Issue,”

Opening Br. at 34), Mr. Ombe offers suggestions for practices the court could adopt

to better accommodate similarly situated litigants, including updates to the District of

New Mexico’s Guide for Pro Se Litigants. To the extent Mr. Ombe is asserting the

district court should have applied a different set of rules to him than to other litigants,

we reject this contention for the same reasons we set forth in Ombe I.

See 755 F. App’x at 759 (“[W]hile Mr. Ombe insists that the district court was

required to modify or ignore otherwise applicable procedural and substantive rules as

an accommodation to his cognitive and mental health issues, he cites no legal

6
authority that supports this proposition and we are aware of none.”).4 And, the

arguments Mr. Ombe presents in connection with his second issue on appeal fail to

demonstrate the district court’s dismissal of his untimely claims was erroneous, so

we do not consider them further.

CONCLUSION

We affirm the judgment of the district court. We grant Mr. Ombe’s “Motion

to Request the Court[’s] Understanding of the Issues Related to the Court[’s] General

Rule About Review vs. New Trial,” “Motion to Request to Understand the Ultim[a]te

Issue,” and “Motion for Leave [to] ‘Supplement’ which is Significantly Deviated

from Rule 28(j)” to the extent Mr. Ombe asks us to consider additionally submitted

arguments, and we have considered those arguments to the extent they are relevant.

We deny those motions to the extent Mr. Ombe asks us to apply a different standard

of law to him than we would to other litigants. We grant Mr. Ombe’s motion to

withdraw his “Motion to Request to Continue to Abate the Case for the Entire Period

of Case Build-Up.” We deny Mr. Ombe’s motion to proceed in forma pauperis

because he did not present “a reasoned, nonfrivolous argument on the law and facts

4
In connection with his argument that the district court did not sufficiently
accommodate his autism, Mr. Ombe references a portion of the ADA that sets forth
the Congressional purposes in enacting it. See 42 U.S.C. § 12101(b)(3). But this
provision in no way indicates the district court ought to have altered or deviated from
the rules applicable to everyone for the benefit of Mr. Ombe, or that it erred in
concluding his claims were time-barred.

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in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502,

505 (10th Cir. 1991).

Entered for the Court

Timothy M. Tymkovich
Chief Judge

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