DeWalt v. City of Overland Park

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 24, 2020
• Docket: 19-3169
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT February 24, 2020 _________________________________ Christopher M. Wolpert Clerk of Court RODNEY DEWALT,

Plaintiff - Appellant, No. 19-3169 v. (D.C. No. 2:18-CV-02690-DDC-TJJ) (D. Kan.) CITY OF OVERLAND PARK, KANSAS,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges. ** _________________________________

Plaintiff Rodney DeWalt, a pro se litigant, appeals the dismissal of his complaint

by the United States District Court for the District of Kansas. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

In December 2018 Mr. DeWalt, an African-American business owner, brought

suit against the City of Overland Park, Kansas, alleging claims of race discrimination

under 42 U.S.C. § 1981 and violations of his constitutional rights (procedural due

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** 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. process, equal protection, and freedom of association) under 42 U.S.C. § 1983. He also

brought state tort claims (intentional interference with economic relations and intentional

infliction of emotional distress). His claims all arose out of his unsuccessful effort to

open and operate Gossip, a live-entertainment venue in Overland Park that catered to

African-American customers. He alleged in his complaint that he was forced to close

Gossip after experiencing multiple electrical issues due to faulty wiring, a fire caused by

this faulty wiring, and racist threats from unidentified members of the public.

After answering Mr. DeWalt’s complaint, the City moved for judgment on the

pleadings under Fed. R. Civ. P. 12(c). Mr. DeWalt filed a response, which included a

request for leave to amend his complaint if the motion to dismiss was granted. The

district court concluded that Mr. DeWalt’s complaint failed to allege facts capable of

supporting his federal claims. It explained that none of Mr. DeWalt’s allegations showed

any racial motive behind the City’s actions, or that any action by the City hurt him in any

way. And it explained that Mr. DeWalt failed to identify any City policy or custom

responsible for the alleged constitutional violations. The court, however, granted Mr.

DeWalt 10 days to file a motion for leave to amend that attached the proposed amended

complaint, as required under D. Kan. Rule 15.1. The court also stated that if it dismissed

the federal claims, it would be inclined to decline to exercise supplemental jurisdiction

over the state-law claims.

Mr. DeWalt moved for a 30-day extension of the deadline. The magistrate judge

denied this motion, but nonetheless extended the deadline by four days. Mr. DeWalt did

not file a timely motion to amend; instead, he filed only an amended complaint, and he

2 did so two days after the extended deadline had expired. The magistrate judge granted

the City’s motion to strike the amended complaint.

On August 5, 2019, the district court entered an order dismissing Mr. DeWalt’s

original complaint, dismissing the federal claims for failure to state a claim and declining

to exercise supplemental jurisdiction over the state-law claims, dismissing them without

prejudice. The court noted that the magistrate judge had determined that the amended

complaint did not cure the defects in the original complaint. The next day, Mr. DeWalt

moved for reconsideration of the order striking his amended complaint, arguing that he

“was so upset he missed [a] flight . . . that he rushed to the US Post Office and

overlooked the motion [for leave to amend] by mistake.” R., Vol. 1 at 304. Mr. DeWalt

then filed a timely notice of appeal from the district court’s order dismissing his case.

The magistrate judge later denied the motion for reconsideration.

Mr. DeWalt lists nine issues in his brief on appeal. Most of these issues, however,

concern rulings of the magistrate judge that he did not object to and seek review by the

district court. His failure to object “strips us of jurisdiction to review the challenged

order[s].” SEC v. Merrill Scott & Assoc., 600 F.3d 1262, 1269 (10th Cir. 2010). This is

because “a magistrate judge may not issue a final order directly appealable to the court of

appeals. Properly filed objections resolved by the district court are a prerequisite to our

review of a magistrate judge’s order under [28 U.S.C.] § 636(b)(1)(A).” Id. at 1269

(internal quotation marks omitted); see Fed. R. Civ. P. 72(a) (“A party may not assign as

error a defect in the [magistrate judge’s] order not timely objected to.”).

3 There remain only Mr. DeWalt’s arguments that his original complaint should not

have been dismissed for failure to state a claim and that in any event he should have been

allowed to file his amended complaint. “We accept the well-pleaded allegations of the

complaint as true and construe them in the light most favorable to the plaintiff.” Ramirez

v. Dep’t of Corr., Colo., 222 F.3d 1238, 1240 (10th Cir. 2000). We reject Mr. DeWalt’s

arguments for essentially the same reasons given by the district court and magistrate

judge. We agree with them that neither complaint alleges facts showing the

discrimination or harm necessary for a claim under § 1981, see Hampton v. Dillard Dep’t

Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001), or the municipal policy or custom

required for a claim against the City under § 1983, see Bryson v. City of Okla. City, 627

F.3d 784, 788 (10th Cir. 2010).

Finally, we see no abuse of discretion by the district court in declining to exercise

supplemental jurisdiction over Mr. DeWalt’s remaining state-law claims. See Toone v.

Wells Fargo Bank, N.A., 716 F.3d 516, 524 (10th Cir. 2013) (“A district court’s decision

whether to exercise supplemental jurisdiction over state-law claims after dismissing every

claim over which it had original jurisdiction is purely discretionary” (brackets and

internal quotation marks omitted)).

We AFFIRM the judgment of the district court.

Entered for the Court

Harris L Hartz Circuit Judge