Gottorff v. Michelich

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 23, 2025
• Docket: 24-1416
• Status: Unpublished

Opinion

Appellate Case: 24-1416 Document: 13-1 Date Filed: 05/23/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS May 23, 2025 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court DAVID J. GOTTORFF,

Plaintiff - Appellant,

v. No. 24-1416 (D.C. No. 1:23-CV-02384-LTB-RTG) ANDRES MICHELICH; SHANE (D. Colo.) SCHMALZ; TAMMY STROUP; SHELLY KUHLMAN; BERNIE CHISM; SPENCER FULLER; ERIN GRAHAM; DANIEL RICHARDS; SETH RYAN; COLLIN REECE; CHARLES SHACKELFORD; KURT BECKENHAUER; CORY JACKSON,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, MATHESON, and FEDERICO, 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-1416 Document: 13-1 Date Filed: 05/23/2025 Page: 2

Confined in a Colorado prison, David J. Gottorff filed this lawsuit on

his own behalf under 42 U.S.C. §§ 1983 and 1985. He sued several

defendants, some of them private individuals, others municipal officials,

still others state officials. He amended his complaint twice before the

district court dismissed it. The district court dismissed the claims against

two state judges and one prosecutor with prejudice based on absolute

immunity. It dismissed the claim against a state official without prejudice

based on Eleventh Amendment immunity. And it dismissed the remaining

claims without prejudice for failure to comply with Federal Rule of Civil

Procedure 8. Mr. Gottorff appeals. We conclude the claims against the

prosecutor should have been dismissed without prejudice, but we otherwise

affirm.

I

The allegations in the second (operative) complaint are difficult to

decipher. As detailed below, the procedural history of this case

demonstrates the district court’s substantial effort to guide Mr. Gottorff’s

complaint to comply with the law applicable to civil pleadings.

A magistrate judge found Mr. Gottorff’s initial complaint deficient

and, in a 10-page order, outlined the shortcomings and directed him to file

an amended complaint. Mr. Gottorff filed an amended complaint, but the

magistrate judge then found it lacking too. Although the complaint leveled

2 Appellate Case: 24-1416 Document: 13-1 Date Filed: 05/23/2025 Page: 3

“myriad allegations,” the magistrate judge concluded, it failed to make clear

“what, exactly, each defendant actually did, and how his or her actions

amounted to a violation” of Mr. Gottorff’s rights. R. at 112. And so the

magistrate judge ordered Mr. Gottorff to file a second amended complaint.

The second amended complaint listed thirteen defendants. It

attempted to present claims that defendants had tampered with a state

jury, conspired to deprive Mr. Gottorff of his civil rights, abused state

protection-order and criminal-justice processes, improperly used the

criminal-justice system to intimidate Mr. Gottorff, and improperly issued

protection orders against him and presided over criminal proceedings

against him.

The magistrate judge recommended that the claims against two state

judges be dismissed with prejudice because of judicial immunity, that the

claims against a prosecutor be dismissed with prejudice because of

prosecutorial immunity, that the claim against a state official be dismissed

without prejudice because of Eleventh Amendment immunity, and that the

remaining claims be dismissed without prejudice for failure to comply with

Rule 8.1 The complaint violated Rule 8, the magistrate judge concluded,

1 Federal Rule of Civil Procedure 41(b) allows a district court to dismiss a complaint that fails to comply with Rule 8. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). 3 Appellate Case: 24-1416 Document: 13-1 Date Filed: 05/23/2025 Page: 4

because it lacked “a short and plain statement” of the claims showing an

entitlement to relief. R. at 157. The complaint’s factual allegations were, in

the magistrate judge’s view, “vague, conclusory, and difficult to follow.” Id.

The district court adopted the magistrate judge’s recommendations.

It also denied Mr. Gottorff’s motion for leave to file a third amended

complaint, concluding that it would be futile to allow another amendment

because the proposed complaint still violated Rule 8 despite several prior

attempts to amend. Mr. Gottorff timely appeals.

II

Mr. Gottorff represents himself, so we construe his filings liberally.

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

In addition to filing a brief arguing against the district court’s

judgment, Mr. Gottorff also filed a petition for a writ of mandamus, asking

us to direct the district court to enter a temporary restraining order and

hold a hearing on his motion for a preliminary injunction. Mandamus relief

is not available to him because he has another way – this appeal (should he

prevail) – to obtain the relief he seeks. See In re Cooper Tire & Rubber Co.,

568 F.3d 1180, 1187 (10th Cir. 2009). Mindful of our duty to construe his

filings liberally, however, we will also consider the arguments against the

district court’s judgment raised in his mandamus petition in our evaluation

of his appeal.

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A

Rule 8(a)(2) requires a complaint to set out “a short and plain

statement of the claim showing that the pleader is entitled to relief.” The

complaint’s allegations “must be simple, concise, and direct.” Fed. R. Civ. P.

8(d)(1). At bottom, a plaintiff’s “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 v. Two Unknown B.I.C.E. Agents,

492 F.3d 1158, 1163 (10th Cir. 2007). That information gives “the defendant

sufficient notice to begin preparing its defense and the court sufficient

clarity to adjudicate the merits.” Id.

Mr. Gottorff makes only a cursory argument against the district

court’s conclusion that his complaint violated Rule 8. He insists the facts

alleged in his complaint are “undisputable.” Aplt. Br. at 7. And he contends

that, construed liberally, his complaint complied with Rule 8. These

arguments, however, do not address the fundamental problem the district

court identified with the complaint – its “vague” and “conclusory” factual

allegations failed to set out a short and plain statement of the claims. R. at

157.

We review the district court’s dismissal for failure to comply with Rule

8 for an abuse of discretion, see Nasious, 492 F.3d at 1161, and we see no

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such abuse here. We agree with the district court that the allegations in the

second amended complaint, even when construed liberally, fall well short of

what Rule 8 requires. The complaint consistently fails to identify what

specific actions the defendants took to violate Mr. Gottorff’s rights. An

example illustrates the problem: the complaint alleges that an investigator

at a local sheriff’s office “provided significant aid” to others’ efforts to

commit perjury and have Mr. Gottorff arrested and charged with a crime.

R. at 130. Yet the complaint fails to articulate what concrete action the

investigator took to aid those efforts. Faced with inadequate factual

allegations like that example, the district court committed no error when it

dismissed the bulk of the complaint for failure to comply with Rule 8.

B

We review de novo the district court’s dismissals based on absolute

prosecutorial immunity, absolute judicial immunity, and Eleventh

Amendment immunity.2 PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1195

2 Mr. Gottorff arguably waived our review of his immunity arguments

because he failed to include them in his objections to the magistrate judge’s recommendation. See Griffith v. El Paso Cnty., 129 F.4th 790, 805–06 (10th Cir. 2025) (describing our circuit’s firm-waiver rule). But our firm-waiver rule is not jurisdictional, and under the circumstances of this case, we elect to review Mr. Gottorff’s arguments against the district court’s immunity rulings. See Hicks v. Franklin, 546 F.3d 1279, 1283 n.3 (10th Cir. 2008). 6 Appellate Case: 24-1416 Document: 13-1 Date Filed: 05/23/2025 Page: 7

(10th Cir. 2010) (absolute immunity); Free Speech Coal., Inc. v. Anderson,

119 F.4th 732, 735 (10th Cir. 2024) (Eleventh Amendment immunity).

A prosecutor is immune from suit “for those actions that cast him in

the role of an advocate initiating and presenting the government’s case.”

Mink v. Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007). But prosecutorial

immunity generally does not cover “those actions that are investigative or

administrative in nature.” Id. at 1262.

Mr. Gottorff claimed that a state prosecutor had conspired to commit

jury tampering in a prosecution against him. He also claimed that the

prosecutor instructed an agent of the Colorado Bureau of Investigation not

to investigate a crime Mr. Gottorff had reported.

We agree with Mr. Gottorff only that the district court should not have

dismissed the claims against the prosecutor based on absolute immunity.

Determining whether immunity applies to a prosecutor’s conduct “is not

always easy.” Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1209 (10th Cir.

2022) (internal quotation marks omitted). And Mr. Gottorff’s complaint

leaves open what exactly the prosecutor did to merit this allegation and

claim. In other words, the complaint lacked sufficient facts and information

about the prosecutor’s actions to allow an immunity determination one way

or the other. For that reason, the district court erred by dismissing the

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claims against the prosecutor on that ground. The court should have instead

included the claims against the prosecutor in its dismissal without

prejudice for failure to comply with Rule 8.

A judge acting in an official capacity is immune from civil-rights suits

“unless the judge acts clearly without any colorable claim of jurisdiction.”

Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990).

Mr. Gottorff sued the two state judges because they entered protection

orders against him and presided over criminal proceedings against him. The

judges’ immunity against these claims is clear. Arguing otherwise, Mr.

Gottorff highlights that his claims against the judges sought only injunctive

relief. But judicial immunity generally applies not only to claims for

damages but also to claims for injunctive relief. See § 1983; Roth v. King,

449 F.3d 1272, 1286 (D.C. Cir. 2006). The district court did not err by

dismissing the claims against the state judges based on immunity.

The Eleventh Amendment precludes claims for damages against state

officers in their official capacities. Colby v. Herrick, 849 F.3d 1273, 1276

(10th Cir. 2017). For that reason, the district court dismissed Mr. Gottorff’s

claim for damages against a state officer in his official capacity. Mr.

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Gottorff’s cursory claim that the district court’s decision was wrong does

nothing to undermine the ruling.

C

If the second amended complaint was deficient, Mr. Gottorff says,

then the district court should have allowed him to file a third amended

complaint. In fact, Mr. Gottorff argues, the court had no authority to deny

another amendment because no responsive pleading had been filed. But a

party may amend its pleading only once as a matter of course, so Mr.

Gottorff is mistaken to the extent he contends that he needed no leave from

the court to file a third amended complaint. See Fed. R. Civ. P. 15(a). Mr.

Gottorff never develops an argument against the district court’s reasons for

denying leave to file a third amended complaint, so he has waived any

challenge to the court’s analysis. See Garrett v. Selby Connor Maddux &

Janer, 425 F.3d 836, 841 (2005) (recognizing that inadequately briefed

issues will be deemed waived).

D

Mr. Gottorff makes several arguments addressing his motions for a

temporary restraining order and for a preliminary injunction. The district

court denied the motions as moot once it dismissed the complaint.

Mr. Gottorff makes no attempt to explain why the motions were not moot,

so he has waived any challenge to the district court’s rulings. See id.

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E

Mr. Gottorff asserts that the district court should have exercised

supplemental jurisdiction over his state-law claims and that its dismissal

order violates 42 U.S.C. § 1988(a). But he develops no argument supporting

these assertions, so we will not address them. See Garrett, 425 F.3d at 841.

III

We grant Mr. Gottorff’s motion to proceed without prepaying costs or

fees. We deny his petition for a writ of mandamus and his separate motion

requesting mandamus relief. We vacate the district court’s dismissal with

prejudice of the claims against the prosecutor, and we remand with

instructions to dismiss those claims without prejudice for failure to comply

with Rule 8. We otherwise affirm.

Entered for the Court

Richard E.N. Federico Circuit Judge