Frazier v. Alvarado

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 27, 2026
• Docket: 25-1056
• Status: Unpublished

Opinion

Appellate Case: 25-1056 Document: 36-1 Date Filed: 03/27/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 27, 2026 _________________________________ Christopher M. Wolpert Clerk of Court TERRY FRAZIER,

Plaintiff - Appellant,

v. No. 25-1056 (D.C. No. 1:21-CV-00970-GPG-NRN) JOSUE ALVARADO; STEVENS (D. Colo.) TRANSPORT,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BALDOCK, and MORITZ, Circuit Judges. _________________________________

Terry Frazier, proceeding pro se, 1 appeals the district court’s entry of

judgment after a jury verdict in favor of Josue Alvarado and Stevens Transport in a

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

Because Mr. Frazer proceeds pro se, we construe his arguments liberally, but 1

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: 25-1056 Document: 36-1 Date Filed: 03/27/2026 Page: 2

negligence suit arising from a trucking accident. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

Mr. Frazier, represented by counsel throughout the district court proceedings,

sued the defendants in state court in 2021. In his lawsuit, Mr. Frazier alleged

Mr. Alvarado struck his parked tractor-trailer while backing a commercial tractor-

trailer into a parking spot at a travel center. He further alleged that he was asleep in

the cab of his tractor-trailer at the time of the collision, so he fell off his bunk and

suffered neck and back injuries.

The defendants removed the lawsuit to federal court, which exercised diversity

jurisdiction under 28 U.S.C. § 1332. They admitted Mr. Alvarado was acting in the

course and scope of his employment during the accident and admitted he caused the

accident. But they disputed whether Mr. Frazier suffered damages and whether their

negligence caused any damages he suffered.

The parties tried the case before a jury. The jury found that Mr. Frazier did, in

fact, suffer damages, but it did not find that the defendants’ negligence caused any

claimed damages. So, the district court entered judgment in favor of the defendants

and against Mr. Frazier. This appeal followed.

Mr. Frazier raises five issues on appeal: (1) “[w]hether the district court erred

in failing to find [the defendants’] negligent operation of a commercial vehicle

directly caused [his] . . . injuries, despite clear evidence of the collision and resulting

medical damages,” (2) whether his own attorneys denied him effective assistance of

counsel, (3) whether the district court erroneously admitted “false and misleading

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photographic evidence,” (4) whether this court should reverse the district court’s

judgment because Mr. Frazier submitted “unrebutted medical evidence” showing

substantial injuries from the collision, and (5) whether his “constitutional rights were

violated when he was subjected to discriminatory treatment by both his own counsel

and opposing counsel.” Aplt. Opening Br. at 3. None of the issues he raises compel

reversal.

Neither the first nor the fourth issue warrants reversal because Mr. Frazier did

not challenge the sufficiency of the evidence with a motion under

Fed. R. Civ. P. 50(b). “This failure precludes our review.” Kellogg v. Energy Safety

Servs. Inc., 544 F.3d 1121, 1128 (10th Cir. 2008). The Supreme Court “has

concluded that, in the absence of such a motion[,] an appellate court is without power

to direct the [d]istrict [c]ourt to enter judgment contrary to the one it had permitted to

stand.” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400–01 (2006)

(internal quotation marks and brackets omitted).

The second issue does not warrant reversal because there is no constitutional

right to effective assistance of counsel in a civil case. See MacCuish v. United

States, 844 F.2d 733, 735 (10th Cir. 1988). Rather, Mr. Frazier’s “appropriate

remedy for allegedly incompetent representation is a malpractice suit against [his]

trial attorney. Any such incompetence provides no basis for granting [him] a new

trial.” Id. at 735–36.

The third issue does not warrant reversal because Mr. Frazier has not provided

an adequate record to facilitate our review. See 10th Cir. R. 10.4(B) (“When the

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party asserting an issue fails to provide a record or appendix sufficient for

considering that issue, the court may decline to consider it.”). Normally, we review

evidentiary rulings for abuse of discretion. See U.S. ex rel. Bahrani v. ConAgra, Inc.,

624 F.3d 1275, 1288 (10th Cir. 2010). But here, such review is impossible because

the record does not include the trial transcripts, nor—even if it did—does Mr. Frazier

adequately specify what evidence he believes the trial court erroneously admitted or

whether and to what extent he objected to the admission of that evidence. The lack

of a transcript “involves more than noncompliance with some useful but nonessential

procedural admonition of primarily administrative focus. It raises an effective barrier

to informed, substantive appellate review.” McGinnis v. Gustafson, 978 F.2d 1199,

1201 (10th Cir. 1992). Therefore, “the lack of a required transcript leaves us with no

alternative but to affirm the affected ruling.” Id.

Finally, the fifth issue does not warrant reversal because, other than some

threadbare assertions that opposing counsel (and his own attorney) discriminated

against him, Mr. Fraizer does not identify what allegedly improper actions opposing

counsel took or how those actions improperly influenced the jury verdict. Nor does

he point to any portion of the record evidencing that discrimination. “[E]ven pro se

litigants must do more than make mere conclusory statements regarding

constitutional claims.” Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995).

Mr. Frazier has not sufficiently argued this point to warrant further review.

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We affirm the judgment of the district court. We grant Mr. Frazier’s motion to

proceed without prepayment of costs (Dkt. No. 9).

Entered for the Court

Timothy M. Tymkovich Circuit Judge