FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 9, 2013
Elisabeth A. Shumaker
Clerk of Court
TIFFANY DORF, mother and next friend
and guardian of DWD,
Plaintiff-Appellant,
and
JULIE TRIPLETT, conservator and
Guardian ad litem of DWD,
Plaintiff,
v. No. 12-8074
(D.C. No. 1:11-CV-00351-SWS)
JOSH BJORKLUND; EVANSVILLE, (D. Wyo.)
WY; ZACH GENTILE,
Defendants-Appellees,
and
RAMIRO PENA,
Defendant.
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Plaintiff Tiffany Dorf appeals the district court’s dismissal of her case.
Specifically, she challenges the district court’s denial as futile her request for leave to
file a second amended complaint. We exercise jurisdiction under 28 U.S.C. § 1291
and affirm.1
I. BACKGROUND
The parties are familiar with the facts and we need not restate them in detail
here. Briefly, Ms. Dorf alleged that she was sexually assaulted by defendant Pena
while he was a police officer employed by the City of Evansville, Wyoming (City).
He resigned as a result of Ms. Dorf’s allegations. Ms. Dorf filed the underlying
lawsuit against Officer Pena; Zach Gentile, the Chief of Police; Joshua Bjorklund, a
police supervisor; and the City. She brought claims against defendants Gentile,
Bjorklund, and the City under 42 U.S.C. § 1983 for violating her rights under the
1
Although claims remained pending against defendant Pena, the district court
certified the judgment as to defendants Bjorklund, Gentile, and the City of
Evansville, pursuant to Fed. R. Civ. P. 54(b). Consequently, this court has
jurisdiction. See Zurich Am. Ins. Co. v. O’Hara Reg’l Ctr. for Rehab., 529 F.3d 916,
918 n.1 (10th Cir. 2008) (“Because the district court properly certified [the]
judgment, we have jurisdiction.”).
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Fourth and Fourteenth Amendments, asserting that they failed to properly hire,
supervise, train, discipline, and control Officer Pena.2
The district court first granted the motion for judgment on the pleadings filed
by Chief Gentile and Officer Bjorklund pursuant to Fed. R. Civ. P. 12(c). The court
held that the amended complaint failed to state a plausible claim for relief for
supervisory liability. The City then filed its motion to dismiss under Fed. R. Civ.
P. 12(b)(6) for failure to state a claim. Ms. Dorf filed a motion to reconsider the
dismissal of defendants Gentile and Bjorklund, together with an opposition to the
City’s dismissal motion, a motion to amend the complaint, and a proposed second
amended complaint. The district court reviewed the proposed second amended
complaint and concluded that it, too, failed to state a plausible claim for relief for
supervisory or municipal liability. Accordingly, on September 7, 2012, the court
entered an order holding that amendment would be futile, denying leave to amend,
granting the City’s motion to dismiss, and denying reconsideration of the judgment
on the pleadings in favor of defendants Gentile and Bjorklund. Ms. Dorf appeals.
II. DISCUSSION
Although Ms. Dorf has appealed the district court’s orders dismissing her case,
the operative ruling is the denial of leave to amend. She claims that both the first
amended complaint and the proposed second amended complaint stated plausible
2
Ms. Dorf also brought various state law claims, which she conceded in the
district court were dependent on the viability of her § 1983 claims. See Aplt. App.
Vol. II at 201 n.3.
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claims for relief, but her brief relies on the second amended complaint as sufficient to
withstand dismissal.
“We generally review for abuse of discretion a district court’s denial of leave
to amend a complaint, but we review de novo the legal basis for the finding of
futility.” Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 (10th Cir. 2013)
(internal quotation marks and brackets omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[M]ere labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
suffice; a plaintiff must offer specific factual allegations to support each claim.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (internal
quotation marks omitted). When evaluating whether a complaint plausibly states a
claim, we “disregard all conclusory statements of law and consider whether the
remaining specific factual allegations, if assumed to be true, plausibly suggest the
defendant is liable.” Id.
The district court thoroughly reviewed the proposed second amended
complaint and explained why it would be subject to dismissal for failure to state a
claim. We have reviewed the record, the parties’ briefs, and the applicable law, and
we conclude that Ms. Dorf’s proposed second amended complaint did not contain
“enough specific factual allegations to ‘nudge [her] claims across the line from
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conceivable to plausible,’” id. at 1219 (brackets omitted) (quoting Twombly, 550 U.S.
at 570). Accordingly, the district court did not err by dismissing Ms. Dorf’s claims
without leave to amend. We affirm the dismissal and the denial of leave to amend
the complaint for substantially the reasons stated by the district court in its
dispositive order dated September 7, 2012.
III. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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