Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2023 _________________________________ Christopher M. Wolpert Clerk of Court BENJAMIN W. FAWLEY,
Plaintiff - Appellant,
v. No. 22-2091 (D.C. No. 2:20-CV-01342-MLS-KRS) ALISHA TAFOYA LUCERO, Secretary, (D. N.M.) NMCD; DWAYNE SANTISTEVAN, Warden, LCCF; HOWARD CLARKE, Director; MICHELLE LUJAN GRISHAM, Governor, State of New Mexico,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, EID, and ROSSMAN, Circuit Judges. _________________________________
Benjamin Fawley, a state prisoner appearing pro se,1 appeals the dismissal of
his 42 U.S.C. § 1983 action against the state of New Mexico and officials with the
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Mr. Fawley 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). Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 2
New Mexico Corrections Department (NMCD), where he is currently in custody.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Although Mr. Fawley’s conviction stems from crimes he committed in
Virginia, he is in the custody of NMCD pursuant to a transfer authorized through the
Interstate Corrections Compact, see 4 U.S.C. § 112. Mr. Fawley sued the defendants
in state court in New Mexico. In his complaint, he alleged they violated various
statutory and constitutional provisions by assessing restitution toward a fund
benefitting New Mexico crime victims even though he committed his crimes in
Virginia. The defendants removed the case to federal court and moved to dismiss,
raising, inter alia, immunity under the New Mexico Tort Claims Act and the Eleventh
Amendment.
Mr. Fawley responded by filing a motion to amend his complaint along with
sixteen other filings, motions, letters, and notices. The district court liberally
construed Mr. Fawley’s filings as an attempt to amend his complaint, and ordered
Mr. Fawley to file, within thirty days, a single complaint that complied with
Fed. R. Civ. P. 8. The court denied as moot all pending motions, and further advised
Mr. Fawley to avoid “shotgun pleading”—that is, the recitation of an extended
factual narrative followed by pleading numerous claims without adequately
specifying which facts apply to which claims and which parties.
After that order, Mr. Fawley filed an amended complaint, a brief in support of
his amended complaint, and at least twelve other motions, responses, and replies that
2 Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 3
nominally addressed procedural issues “but also [sought] relief under statutes and
theories that were not raised in the [a]mended [c]omplaint.” R. vol. 3 at 271.
Because the district court “still [could not] discern the exact claims [Mr. Fawley
sought] to assert,” and because “striking extraneous submissions would not cure the
defect because his new legal theories [were] intermingled with arguments resisting
dismissal and/or seeking a remand to state court,” id., the court dismissed the case
without prejudice under Fed. R. Civ. P. 41(b).
Mr. Fawley noticed this appeal and filed various objections in the district court
that the district court construed as a motion to reconsider its dismissal under
Fed. R. Civ. P. 59. We abated this appeal until the district court could rule on
Mr. Fawley’s post-judgment objections. After the district court denied them, we
lifted the abatement.
DISCUSSION
“We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v.
Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Just. Ctr., 492 F.3d 1158, 1161
(10th Cir. 2007). Where, as here, the district court dismisses a case under Rule 41(b)
without prejudice for failing to comply with Rule 8, it “may, without abusing its
discretion, enter such an order without attention to any particular procedures.”
Id. at 1162. Construing Mr. Fawley’s appeal briefs liberally,2 he raises four principal
arguments:
2 In addition to his opening brief and reply brief, Mr. Fawley filed “supplements” thereto. Although the rules of appellate procedure normally do not
3 Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 4
(1) it is improper for New Mexico to assess restitution for his Virginia crimes;
(2) his underlying conviction in Virginia is invalid, but because he can no
longer seek habeas relief for this conviction, he must pursue damages under
§ 1983;
(3) the district court improperly imposed a limit on the number of
constitutional violations he could assert and/or the number of defendants he
could assert them against; and
(4) the district court did not extend sufficient latitude to him in light of his
status as a pro se litigant.3
These arguments lack merit.
The first and second do not address the deficiencies the district court identified
in Mr. Fawley’s pleadings. The district court could not discern, either from the
amended complaint or from the numerous filings that accompanied it, what statutes
Mr. Fawley was relying on for relief, what role the named defendants played, or even
what relief he sought. Nor do they demonstrate the district court abused its discretion
in dismissing his claims without prejudice for failure to comply with its prior order
permit these submissions, see Fed. R. App. P. 28(c) (providing that “[u]nless the court permits, no further briefs may be filed” other than the appellant’s and the appellee’s brief and the appellant’s reply brief), in keeping with our obligation to construe Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2023 _________________________________ Christopher M. Wolpert Clerk of Court BENJAMIN W. FAWLEY,
Plaintiff - Appellant,
v. No. 22-2091 (D.C. No. 2:20-CV-01342-MLS-KRS) ALISHA TAFOYA LUCERO, Secretary, (D. N.M.) NMCD; DWAYNE SANTISTEVAN, Warden, LCCF; HOWARD CLARKE, Director; MICHELLE LUJAN GRISHAM, Governor, State of New Mexico,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, EID, and ROSSMAN, Circuit Judges. _________________________________
Benjamin Fawley, a state prisoner appearing pro se,1 appeals the dismissal of
his 42 U.S.C. § 1983 action against the state of New Mexico and officials with the
* 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. 1 Because Mr. Fawley 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). Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 2
New Mexico Corrections Department (NMCD), where he is currently in custody.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Although Mr. Fawley’s conviction stems from crimes he committed in
Virginia, he is in the custody of NMCD pursuant to a transfer authorized through the
Interstate Corrections Compact, see 4 U.S.C. § 112. Mr. Fawley sued the defendants
in state court in New Mexico. In his complaint, he alleged they violated various
statutory and constitutional provisions by assessing restitution toward a fund
benefitting New Mexico crime victims even though he committed his crimes in
Virginia. The defendants removed the case to federal court and moved to dismiss,
raising, inter alia, immunity under the New Mexico Tort Claims Act and the Eleventh
Amendment.
Mr. Fawley responded by filing a motion to amend his complaint along with
sixteen other filings, motions, letters, and notices. The district court liberally
construed Mr. Fawley’s filings as an attempt to amend his complaint, and ordered
Mr. Fawley to file, within thirty days, a single complaint that complied with
Fed. R. Civ. P. 8. The court denied as moot all pending motions, and further advised
Mr. Fawley to avoid “shotgun pleading”—that is, the recitation of an extended
factual narrative followed by pleading numerous claims without adequately
specifying which facts apply to which claims and which parties.
After that order, Mr. Fawley filed an amended complaint, a brief in support of
his amended complaint, and at least twelve other motions, responses, and replies that
2 Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 3
nominally addressed procedural issues “but also [sought] relief under statutes and
theories that were not raised in the [a]mended [c]omplaint.” R. vol. 3 at 271.
Because the district court “still [could not] discern the exact claims [Mr. Fawley
sought] to assert,” and because “striking extraneous submissions would not cure the
defect because his new legal theories [were] intermingled with arguments resisting
dismissal and/or seeking a remand to state court,” id., the court dismissed the case
without prejudice under Fed. R. Civ. P. 41(b).
Mr. Fawley noticed this appeal and filed various objections in the district court
that the district court construed as a motion to reconsider its dismissal under
Fed. R. Civ. P. 59. We abated this appeal until the district court could rule on
Mr. Fawley’s post-judgment objections. After the district court denied them, we
lifted the abatement.
DISCUSSION
“We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v.
Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Just. Ctr., 492 F.3d 1158, 1161
(10th Cir. 2007). Where, as here, the district court dismisses a case under Rule 41(b)
without prejudice for failing to comply with Rule 8, it “may, without abusing its
discretion, enter such an order without attention to any particular procedures.”
Id. at 1162. Construing Mr. Fawley’s appeal briefs liberally,2 he raises four principal
arguments:
2 In addition to his opening brief and reply brief, Mr. Fawley filed “supplements” thereto. Although the rules of appellate procedure normally do not
3 Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 4
(1) it is improper for New Mexico to assess restitution for his Virginia crimes;
(2) his underlying conviction in Virginia is invalid, but because he can no
longer seek habeas relief for this conviction, he must pursue damages under
§ 1983;
(3) the district court improperly imposed a limit on the number of
constitutional violations he could assert and/or the number of defendants he
could assert them against; and
(4) the district court did not extend sufficient latitude to him in light of his
status as a pro se litigant.3
These arguments lack merit.
The first and second do not address the deficiencies the district court identified
in Mr. Fawley’s pleadings. The district court could not discern, either from the
amended complaint or from the numerous filings that accompanied it, what statutes
Mr. Fawley was relying on for relief, what role the named defendants played, or even
what relief he sought. Nor do they demonstrate the district court abused its discretion
in dismissing his claims without prejudice for failure to comply with its prior order
permit these submissions, see Fed. R. App. P. 28(c) (providing that “[u]nless the court permits, no further briefs may be filed” other than the appellant’s and the appellee’s brief and the appellant’s reply brief), in keeping with our obligation to construe Mr. Fawley’s briefs liberally, we have considered the arguments in each “supplement” alongside the briefs to which they pertain. 3 Mr. Fawley also raises arguments that appear directed at rulings made in New Mexico state court in this and other cases. We do not consider these arguments because our jurisdiction is limited to reviewing the final decision of the federal district court. See 28 U.S.C. § 1291.
4 Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 5
and Fed. R. Civ. P. 8. And to the extent Mr. Fawley now clarifies that a judgment in
his favor “would necessarily imply the invalidity of his conviction or sentence,”
which has not “already been invalidated,” he cannot proceed under § 1983 in any
event. Heck v. Humphrey, 512 U.S. 477, 487 (1994).
The record does not support the third argument. The district court did not
impose a limit on the number of claims or defendants in Mr. Fawley’s suit; it
“helpfully advise[d]” him that “to state a claim in federal court, a complaint must
explain what each defendant did to him or her; when the defendant did it; how the
defendant’s action harmed him or her; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious, 492 F.3d at 1163.
As to the fourth argument, Mr. Fawley’s “pro se status does not excuse [his]
obligation . . . to comply with the fundamental requirements of the Federal Rules of
Civil. . . Procedure.” Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994)
(italics omitted). The district court did not merely dismiss Mr. Fawley’s claims due
to his “failure to cite proper legal authority, his confusion of various legal theories,
his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements,” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Rather, after
carefully reviewing both his complaint and proposed amended complaint (along with
the litany of supplemental filings he included with each), the district court concluded
Mr. Fawley’s complaint lacked the very basic “elements that enable the legal system
to get weaving—permitting the defendant sufficient notice to begin preparing its
defense and the court sufficient clarity to adjudicate the merits.” Nasious, 492 F.3d
5 Appellate Case: 22-2091 Document: 010110825905 Date Filed: 03/14/2023 Page: 6
at 1163. Faced with Mr. Fawley’s noncompliance with its prior order, the district
court did not abuse its discretion in dismissing the action without prejudice.
CONCLUSION
We affirm the judgment of the district court. We deny Mr. Fawley’s “Motion
for Rule 19 Certified Question to U.S. Supreme Court.”
Entered for the Court
Allison H. Eid Circuit Judge