Bivens v. Albuq. Public School

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 2, 1997
• Docket: 95-2203
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 2 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

RICHARD BIVENS, a minor, by and through his next friend and mother, Susan Green,

Plaintiff-Appellant, No. 95-2203 (D.C. No. CIV-94-38-SC) v. (D. N.M.)

ALBUQUERQUE PUBLIC SCHOOLS; JACK BOBROFF, Superintendent, Albuquerque Public Schools; MARTHA BASS, Principal, Del Norte High School; LINDA LEFTON, Assistant Principal, Del Norte High School; PATRICIA LUNA, Albuquerque Public Schools North Region Coordinator,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Richard Bivens appeals from the district court’s grant of summary

judgment to appellees, and from the court’s denial of his motion for leave to

amend his original complaint. Our jurisdiction over this appeal arises from

28 U.S.C. § 1291; we affirm.

Appellant was suspended from a New Mexico high school for repeated

violations of its dress code. He filed suit against appellees, originally asserting

two issues: 1) violation of his first amendment rights of expression via his

clothing, and 2) violation of due process. He also filed for injunctive relief,

which was denied after a preliminary hearing. Appellees filed a motion to

dismiss, and appellant responded. Over a year later, appellant sought to amend

his complaint to add numerous claims based on state and federal law, and a

request for money damages. Construing appellees’ motion as one for summary

judgment, the district court granted summary judgment to appellees on appellant’s

first amendment and due process claims, and denied appellant’s request for leave

to amend.

-2- On appeal, appellant argues not only the issues decided by the district

court, but all of the issues he seeks to present in his proposed amended complaint.

We agree with appellees that these issues are not properly before us, and decline

to address them. See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re R. Eric

Peterson Constr. Co.), 951 F.2d 1175, 1182 (10th Cir. 1991) (stating appellate

court will not consider issues not passed upon below).

Appellant argues that the district court erred in denying his motion for

leave to amend. This court reviews the district court’s decision to deny

amendment only for abuse of discretion. See Hom v. Squire, 81 F.3d 969, 973

(10th Cir. 1996). Appellant states that he believes the new claims in his proposed

amended complaint are viable causes of action, and argues that “time lapses

should not be dispositive” of the court’s decision to deny his leave to amend.

Appellant’s Br. at 9-10. “It is well settled in this circuit that untimeliness alone is

a sufficient reason to deny leave to amend . . . .” Frank v. U.S. West, Inc., 3 F.3d

1357, 1365 (10th Cir. 1993) (citing cases). We agree with the district court that

counsel’s proffered explanations for his delay in filing for leave to amend do not

justify that delay. Untimeliness supports a district court’s denial of leave to

amend “especially when the party filing the motion has no adequate explanation

for the delay.” Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.

1994) (further quotation omitted). Further, because the new claims appellant

-3- seeks to add are all based on conduct and evidence available to counsel upon his

entry into this case, untimeliness is a proper basis for denial here. See Frank,

3 F.3d at 1366 (untimeliness will support a court’s denial of leave to amend

“where the party seeking amendment knows or should have known of the facts

upon which the proposed amendment is based but fails to include them in the

original complaint”) (further quotation omitted). Accordingly, we conclude that

the district court did not abuse its discretion in denying appellant’s motion for

leave to amend his complaint.

In his reply brief, appellant contends that the district court’s denial of his

motion to amend abrogated his right to discovery. As a rule, issues raised for the

first time in a reply brief will not be considered. See Lyons v. Jefferson Bank &

Trust, 994 F.2d 716, 724 (10th Cir. 1993). Appellant’s arguments on this point

do not compel us to abandon that rule here.

The remaining issues preserved for appellate review are appellant’s

arguments challenging the district court’s grant of summary judgment to appellees

on appellant’s first amendment and due process claims. After careful

consideration of those arguments, appellees’ response, and the record on appeal,

we conclude that the district court correctly decided these issues. Therefore, for

substantially the same reasons as contained in the district court’s thorough and

-4- well-reasoned Memorandum Opinion and Order, dated August 25, 1995, the

judgment of the United States District Court for the District of New Mexico is

AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge

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