Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court BARRY LYNN COX,
Plaintiff - Appellant,
v. No. 24-4070 (D.C. No. 4:24-CV-00022-AMA) KENNETH ARMSTRONG, Judge, (D. Utah) Municipal Justice Court Traffic Division and Utah State Court Fifth District; ERIC GENTRY, Judge, Municipal Justice Court Traffic Division and Utah State Court Fifth District; K. JAKE GRAFF, Judge, Municipal Justice Court Traffic Division and Utah State Court Fifth District; CHRISTOPHER CARAS, Director, Utah State Driver License Division; SPENCER J. COX, Governor, State of Utah,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, McHUGH, and MORITZ, 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 2
Barry Lynn Cox, appearing pro se, appeals the district court’s dismissal of his
complaint and action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Cox was pulled over in Utah for speeding and charged with an infraction in the
Santa Clara Justice Court. After multiple unsuccessful attempts to have the case
dismissed, Cox failed to appear for a bench trial. He was found guilty, sentenced
in absentia, and fined. When he failed to comply with the terms of his citation, his
driver’s license was suspended. At a hearing (where Cox also failed to appear), the
Justice Court denied his post-judgment motions and found him to be a vexatious
litigant.
Meanwhile, after the judgment but before the denial of his post-judgment
motions, Cox filed the action underlying this appeal. He asserted civil rights claims
under 42 U.S.C. § 1983 against the prosecutor (defendant Eric Gentry, who later
became a judge), the judges who presided over his case, the director of the Utah
Driver License Division, and the Governor of Utah. Cox alleged he was not
speeding, no evidence he was speeding had ever been produced, and the citation was
unsigned. He therefore asserted defendants’ actions were a conspiracy to make
money, a violation of Utah and federal law, constitutionally improper, and criminal.
He sought only monetary damages.
A federal magistrate judge tolled the time for service of the complaint,
temporarily granted Cox’s motion for leave to proceed in forma pauperis (“IFP”)
subject to screening under 28 U.S.C. § 1915(e), and directed Cox not to file any
2 Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 3
motions or other documents during screening or until the court ordered otherwise.
Nonetheless, Cox filed a motion for default judgment.
Soon thereafter, the magistrate judge issued a Report and Recommendation
(“R&R”) that the district court dismiss all claims based on the Younger abstention
doctrine. See Younger v. Harris, 401 U.S. 37 (1971).
In the alternative, the magistrate judge recommended dismissal of the claims
(1) against the judges based on judicial immunity, see Mireles v. Waco, 502 U.S. 9,
9–13 (1991) (discussing contours of judicial immunity); (2) against the prosecutor
based on prosecutorial immunity, see Buckley v. Fitzsimmons, 509 U.S. 259, 269–73
(1993) (discussing contours of prosecutorial immunity); (3) against the director of the
Driver License Division based on Heck v. Humphrey, 512 U.S. 477, 486–87 (1994),
because success on the claim that Cox’s driver’s license should not have been
suspended would imply the invalidity of his conviction in the Justice Court; and
(4) against the Governor based on failure to demonstrate his personal involvement in
the alleged constitutional offenses, see Pahls v. Thomas, 718 F.3d 1210, 1225–26
(10th Cir. 2013) (explaining personal-involvement pleading requirements in § 1983
cases).
The magistrate judge also addressed Cox’s citation to a number of criminal
statutes, explaining that, with one exception, there was no indication any of them
provided a private right of action, and Cox failed to sufficiently allege the elements
of the lone exception, theft by extortion under Utah law.
3 Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 4
Cox filed objections along with other documents seeking a default judgment.
The district court overruled the objections, adopted the R&R, dismissed the
complaint and action, and entered judgment. Cox appeals.
II. Analysis
Under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a case filed by
a litigant seeking to proceed IFP whenever “the court determines that . . . the action
or appeal . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” Here, the district court dismissed the case sua sponte under
§ 1915(e)(2)(B)(ii) and (iii). Thus, our review is de novo. See Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). Although we afford a liberal
construction to Cox’s pro se filings, we may not act as his advocate. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Cox insists he advanced sufficient facts to demonstrate a plausible claim for
relief, such as for malicious prosecution, and therefore it was error for the district
court to dismiss his action for failure to state a claim on which relief could be
granted. To be sure, a plaintiff fails to state a claim on which relief can be granted
when he does not allege “sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court BARRY LYNN COX,
Plaintiff - Appellant,
v. No. 24-4070 (D.C. No. 4:24-CV-00022-AMA) KENNETH ARMSTRONG, Judge, (D. Utah) Municipal Justice Court Traffic Division and Utah State Court Fifth District; ERIC GENTRY, Judge, Municipal Justice Court Traffic Division and Utah State Court Fifth District; K. JAKE GRAFF, Judge, Municipal Justice Court Traffic Division and Utah State Court Fifth District; CHRISTOPHER CARAS, Director, Utah State Driver License Division; SPENCER J. COX, Governor, State of Utah,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, McHUGH, and MORITZ, 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. Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 2
Barry Lynn Cox, appearing pro se, appeals the district court’s dismissal of his
complaint and action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Cox was pulled over in Utah for speeding and charged with an infraction in the
Santa Clara Justice Court. After multiple unsuccessful attempts to have the case
dismissed, Cox failed to appear for a bench trial. He was found guilty, sentenced
in absentia, and fined. When he failed to comply with the terms of his citation, his
driver’s license was suspended. At a hearing (where Cox also failed to appear), the
Justice Court denied his post-judgment motions and found him to be a vexatious
litigant.
Meanwhile, after the judgment but before the denial of his post-judgment
motions, Cox filed the action underlying this appeal. He asserted civil rights claims
under 42 U.S.C. § 1983 against the prosecutor (defendant Eric Gentry, who later
became a judge), the judges who presided over his case, the director of the Utah
Driver License Division, and the Governor of Utah. Cox alleged he was not
speeding, no evidence he was speeding had ever been produced, and the citation was
unsigned. He therefore asserted defendants’ actions were a conspiracy to make
money, a violation of Utah and federal law, constitutionally improper, and criminal.
He sought only monetary damages.
A federal magistrate judge tolled the time for service of the complaint,
temporarily granted Cox’s motion for leave to proceed in forma pauperis (“IFP”)
subject to screening under 28 U.S.C. § 1915(e), and directed Cox not to file any
2 Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 3
motions or other documents during screening or until the court ordered otherwise.
Nonetheless, Cox filed a motion for default judgment.
Soon thereafter, the magistrate judge issued a Report and Recommendation
(“R&R”) that the district court dismiss all claims based on the Younger abstention
doctrine. See Younger v. Harris, 401 U.S. 37 (1971).
In the alternative, the magistrate judge recommended dismissal of the claims
(1) against the judges based on judicial immunity, see Mireles v. Waco, 502 U.S. 9,
9–13 (1991) (discussing contours of judicial immunity); (2) against the prosecutor
based on prosecutorial immunity, see Buckley v. Fitzsimmons, 509 U.S. 259, 269–73
(1993) (discussing contours of prosecutorial immunity); (3) against the director of the
Driver License Division based on Heck v. Humphrey, 512 U.S. 477, 486–87 (1994),
because success on the claim that Cox’s driver’s license should not have been
suspended would imply the invalidity of his conviction in the Justice Court; and
(4) against the Governor based on failure to demonstrate his personal involvement in
the alleged constitutional offenses, see Pahls v. Thomas, 718 F.3d 1210, 1225–26
(10th Cir. 2013) (explaining personal-involvement pleading requirements in § 1983
cases).
The magistrate judge also addressed Cox’s citation to a number of criminal
statutes, explaining that, with one exception, there was no indication any of them
provided a private right of action, and Cox failed to sufficiently allege the elements
of the lone exception, theft by extortion under Utah law.
3 Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 4
Cox filed objections along with other documents seeking a default judgment.
The district court overruled the objections, adopted the R&R, dismissed the
complaint and action, and entered judgment. Cox appeals.
II. Analysis
Under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a case filed by
a litigant seeking to proceed IFP whenever “the court determines that . . . the action
or appeal . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” Here, the district court dismissed the case sua sponte under
§ 1915(e)(2)(B)(ii) and (iii). Thus, our review is de novo. See Vasquez Arroyo v.
Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). Although we afford a liberal
construction to Cox’s pro se filings, we may not act as his advocate. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Cox insists he advanced sufficient facts to demonstrate a plausible claim for
relief, such as for malicious prosecution, and therefore it was error for the district
court to dismiss his action for failure to state a claim on which relief could be
granted. To be sure, a plaintiff fails to state a claim on which relief can be granted
when he does not allege “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)
(internal quotation marks omitted). But the failure to allege sufficient factual matter
is only one type of failure to state a claim on which relief can be granted. See, e.g.,
Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011) (“[T]he dismissal of
4 Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 5
a civil rights suit for damages based on prematurity under Heck is for failure to state
a claim.”). And the only claims the district court dismissed under this standard were
those Cox asserted against the Governor due to Cox’s failure to plausibly
demonstrate an affirmative link between the Governor and the challenged conduct.
See Tufaro v. Okla. ex rel. Bd. of Regents, 107 F.4th 1121, 1136 (10th Cir. 2024)
(explaining that “vicarious liability does not apply to § 1983” and therefore “a § 1983
plaintiff must show an affirmative link between each defendant and the constitutional
violation” (internal quotation marks omitted)). Cox does not meaningfully challenge
that rationale, so he has waived appellate review of it. See Sawyers v. Norton,
962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are
deemed abandoned or waived . . . [as are] arguments that are inadequately presented
. . . .” (internal quotation marks omitted)). Nor has Cox developed any challenge to
the district court’s dismissal of his claims for damages based on Younger, Heck,
judicial immunity, or prosecutorial immunity. He has therefore waived appellate
review of those bases for dismissal, too. See id.
Regarding the complaint’s citation to various criminal statutes, Cox says only
that “Defendants are guilty of violating [them],” Aplt. Br. at 4, that no person is
immune from criminal prosecution, and that he wants those statutes “applied,”
id. at 23. He fails to address the district court’s reasons that his reliance on criminal
statutes did not entitle his claims to move forward, so he has waived appellate review
of those reasons. See Sawyers, 962 F.3d at 1286.
5 Appellate Case: 24-4070 Document: 18-1 Date Filed: 12/06/2024 Page: 6
Cox argues the district court should have entered a default judgment against
defendants for failure to answer his complaint. We disagree. Absent waiver of
service, a defendant has no duty to answer until properly served. See Fed. R. Civ.
P. 12(a)(1)(A) (defendant must serve answer “within 21 days after being served with
the summons and complaint” unless defendant has timely waived service). There is
no indication of waiver of service, and the record reflects that Cox mailed copies of
the complaint to the defendants but not summonses. Thus, defendants were not
properly served. As defendants had no duty to answer until properly served, entry of
default prior to service would have been improper. See Fed. R. Civ. P. 55(a) (clerk
shall enter default when party against whom judgment is sought “has failed to plead
or otherwise defend”).
Finally, Cox questions the magistrate judge’s authority to recommend
dismissal. That authority, however, is conferred by 28 U.S.C. § 636(b)(1)(B), which
authorizes a district court judge to designate a magistrate judge to submit “proposed
findings of fact and recommendations for the disposition” of dispositive matters. In
this case, the district court did just that. See R. vol. I at 3 (ECF No. 12).
III. Conclusion
The district court’s judgment is affirmed.
Entered for the Court
Nancy L. Moritz Circuit Judge