FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 9, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court RUSSELL G. GREER,
Plaintiff - Appellant,
v. No. 18-4075 (D.C. No. 2:16-CV-01067-DBP) GARY R. HERBERT, in his official (D. Utah) capacity as Governor of the State of Utah; SEAN D. REYES, in his official capacity as Attorney General of the State of Utah; SIM S. GILL, in his official capacity as District Attorney of the City and County of Salt Lake; KATHY BERG, in her official capacity as Director of the Division of Commerce,
Defendants - Appellees,
and
JAMES ALLRED, in his official capacity as Business Licensing Manager for the City of Salt Lake; JACKIE BISKUPSKI, in her official capacity as Mayor of the City of Salt Lake; BEN MCADAMS, in his official capacity as Mayor of the County of Salt Lake; ROLEN YOSHINAGA, in his official capacity as Director of Planning and Development for the County of Salt Lake,
Defendants. _________________________________
ORDER AND JUDGMENT*
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of _________________________________
Before McHUGH, BALDOCK, and KELLY, Circuit Judges. _________________________________
Pro se litigant Russell Greer appeals the dismissal of his declaratory action
challenging Utah’s laws criminalizing prostitution, solicitation, and the operation of
brothels. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Mr. Greer sought to open a brothel in Utah, despite state laws criminalizing
prostitution and solicitation, see Utah Code Ann. §§ 76-10-1302 through 1305,
and declaring brothels a nuisance, see id. § 47-1-1. He claimed that due to a
facial-paralyzing deformity and disability that prevents him from closing his lips, he
is unable to have intimacy and sex unless he pays for it. Therefore, he applied for a
business license for a brothel, but the initial approval for a business license was
revoked because his registration was for an illegal business purpose.
Mr. Greer filed the underlying lawsuit seeking declaratory and injunctive
relief, making various claims that the Utah statutes are unconstitutional. The parties
consented to proceed before a magistrate judge, pursuant to 28 U.S.C. § 636(c). The
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. 2 magistrate judge dismissed the case for lack of standing and for failure to state a
claim.1
II. DISCUSSION
Mr. Greer first argues that the magistrate judge should have recused because
his impartiality might be questioned. Mr. Greer contends that the magistrate judge’s
personal religious beliefs demonstrate that he could not be impartial in this matter.
Ordinarily, “[w]e review the denial of a motion to recuse for an abuse of
discretion.” Bryce v. Episcopal Church in Diocese of Colo., 289 F.3d 648, 659
(10th Cir. 2002). But Mr. Greer did not seek recusal in the district court, and we
generally do not consider matters not first presented to the district court. See
McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent
extraordinary circumstances, we will not consider arguments raised for the first time
on appeal.”). In any event, Mr. Greer’s claim does not adequately establish grounds
for recusal. See Bryce, 289 F.3d at 660 (holding “membership in a church does not
create sufficient appearance of bias to require recusal”); see also United States v.
Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (stating that factors “which will not
ordinarily satisfy the requirements for disqualification” include “speculation, beliefs,
conclusions, innuendo, suspicion, opinion, and similar non-factual matters”). Thus,
Mr. Greer has not demonstrated that the magistrate judge was required to recuse.
1 Appellees Biskupskif, Allred, McAdams, and Yoshinaga were dismissed from this appeal, pursuant to orders issued on August 7, 2018, and September 11, 2018. 3 Cf. Bryce, 289 F.3d at 659 (stating that a judge “has as strong a duty to sit when there
is no legitimate reason to recuse as he does to recuse when the law and facts require”
(internal quotation marks omitted)).
Mr. Greer assigns error to the magistrate judge’s refusal to allow him to amend
his complaint or to supplement it for a second time. He argues that amendment or
supplementation should have been permitted “for any arguments [he] may not have
listed clearly or coherently.” Aplt. Opening Br. at 35. We decline to address this
argument because it is conclusory and unsupported by evidence or legal authority.
Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1370 (10th Cir. 2015) (“A brief must
contain an argument consisting of more than a generalized assertion of error, with
citations to supporting authority . . . .” (brackets and internal quotation marks
omitted)); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir.
2005) (holding issues are inadequately briefed if they are supported only by “mere
conclusory allegations with no citations to the record or any legal authority”).
Mr. Greer’s mere citation to the order granting in part and denying in part his
motion to supplement the complaint is inadequate. See Aplt. Opening Br. at 35
(citing R. Doc. 53).
Mr. Greer advances several challenges to the magistrate judge’s determination
that his complaint, as supplemented, failed to state a claim for relief under
Fed. R. Civ. P. 12(b)(6), and that he lacked standing to sue on behalf of others.
“We review de novo a district court’s dismissal for lack of standing.” Am. Humanist
Ass’n v. Douglas Cty. Sch. Dist. RE-1, 859 F.3d 1243, 1250 (10th Cir. 2017).
4 Similarly, “[w]e review a Rule 12(b)(6) dismissal de novo.” Nixon, 784 F.3d at 1368
(internal quotation marks omitted). In doing so, “[w]e accept all the well-pleaded
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 9, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court RUSSELL G. GREER,
Plaintiff - Appellant,
v. No. 18-4075 (D.C. No. 2:16-CV-01067-DBP) GARY R. HERBERT, in his official (D. Utah) capacity as Governor of the State of Utah; SEAN D. REYES, in his official capacity as Attorney General of the State of Utah; SIM S. GILL, in his official capacity as District Attorney of the City and County of Salt Lake; KATHY BERG, in her official capacity as Director of the Division of Commerce,
Defendants - Appellees,
and
JAMES ALLRED, in his official capacity as Business Licensing Manager for the City of Salt Lake; JACKIE BISKUPSKI, in her official capacity as Mayor of the City of Salt Lake; BEN MCADAMS, in his official capacity as Mayor of the County of Salt Lake; ROLEN YOSHINAGA, in his official capacity as Director of Planning and Development for the County of Salt Lake,
Defendants. _________________________________
ORDER AND JUDGMENT*
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of _________________________________
Before McHUGH, BALDOCK, and KELLY, Circuit Judges. _________________________________
Pro se litigant Russell Greer appeals the dismissal of his declaratory action
challenging Utah’s laws criminalizing prostitution, solicitation, and the operation of
brothels. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Mr. Greer sought to open a brothel in Utah, despite state laws criminalizing
prostitution and solicitation, see Utah Code Ann. §§ 76-10-1302 through 1305,
and declaring brothels a nuisance, see id. § 47-1-1. He claimed that due to a
facial-paralyzing deformity and disability that prevents him from closing his lips, he
is unable to have intimacy and sex unless he pays for it. Therefore, he applied for a
business license for a brothel, but the initial approval for a business license was
revoked because his registration was for an illegal business purpose.
Mr. Greer filed the underlying lawsuit seeking declaratory and injunctive
relief, making various claims that the Utah statutes are unconstitutional. The parties
consented to proceed before a magistrate judge, pursuant to 28 U.S.C. § 636(c). The
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. 2 magistrate judge dismissed the case for lack of standing and for failure to state a
claim.1
II. DISCUSSION
Mr. Greer first argues that the magistrate judge should have recused because
his impartiality might be questioned. Mr. Greer contends that the magistrate judge’s
personal religious beliefs demonstrate that he could not be impartial in this matter.
Ordinarily, “[w]e review the denial of a motion to recuse for an abuse of
discretion.” Bryce v. Episcopal Church in Diocese of Colo., 289 F.3d 648, 659
(10th Cir. 2002). But Mr. Greer did not seek recusal in the district court, and we
generally do not consider matters not first presented to the district court. See
McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent
extraordinary circumstances, we will not consider arguments raised for the first time
on appeal.”). In any event, Mr. Greer’s claim does not adequately establish grounds
for recusal. See Bryce, 289 F.3d at 660 (holding “membership in a church does not
create sufficient appearance of bias to require recusal”); see also United States v.
Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (stating that factors “which will not
ordinarily satisfy the requirements for disqualification” include “speculation, beliefs,
conclusions, innuendo, suspicion, opinion, and similar non-factual matters”). Thus,
Mr. Greer has not demonstrated that the magistrate judge was required to recuse.
1 Appellees Biskupskif, Allred, McAdams, and Yoshinaga were dismissed from this appeal, pursuant to orders issued on August 7, 2018, and September 11, 2018. 3 Cf. Bryce, 289 F.3d at 659 (stating that a judge “has as strong a duty to sit when there
is no legitimate reason to recuse as he does to recuse when the law and facts require”
(internal quotation marks omitted)).
Mr. Greer assigns error to the magistrate judge’s refusal to allow him to amend
his complaint or to supplement it for a second time. He argues that amendment or
supplementation should have been permitted “for any arguments [he] may not have
listed clearly or coherently.” Aplt. Opening Br. at 35. We decline to address this
argument because it is conclusory and unsupported by evidence or legal authority.
Nixon v. City & Cty. of Denver, 784 F.3d 1364, 1370 (10th Cir. 2015) (“A brief must
contain an argument consisting of more than a generalized assertion of error, with
citations to supporting authority . . . .” (brackets and internal quotation marks
omitted)); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir.
2005) (holding issues are inadequately briefed if they are supported only by “mere
conclusory allegations with no citations to the record or any legal authority”).
Mr. Greer’s mere citation to the order granting in part and denying in part his
motion to supplement the complaint is inadequate. See Aplt. Opening Br. at 35
(citing R. Doc. 53).
Mr. Greer advances several challenges to the magistrate judge’s determination
that his complaint, as supplemented, failed to state a claim for relief under
Fed. R. Civ. P. 12(b)(6), and that he lacked standing to sue on behalf of others.
“We review de novo a district court’s dismissal for lack of standing.” Am. Humanist
Ass’n v. Douglas Cty. Sch. Dist. RE-1, 859 F.3d 1243, 1250 (10th Cir. 2017).
4 Similarly, “[w]e review a Rule 12(b)(6) dismissal de novo.” Nixon, 784 F.3d at 1368
(internal quotation marks omitted). In doing so, “[w]e accept all the well-pleaded
allegations of the complaint as true and construe them in the light most favorable to
[Mr. Greer].” Id. (ellipsis and internal quotation marks omitted). To withstand
dismissal, “a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). Moreover,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” are not sufficient to state a claim for relief. Id.
We liberally construe Mr. Greer’s pro se filings, but we do not act as his
advocate. See Garrett, 425 F.3d at 840. Moreover, “pro se parties [must] follow the
same rules of procedure that govern other litigants.” Id. (internal quotation marks
omitted).
Mr. Greer contends the magistrate judge erred in (1) holding that while he had
standing to bring claims on his own behalf, he lacked prudential standing as an
unestablished business owner to bring claims on behalf of others; (2) analyzing his
challenges to the Utah statutes criminalizing prostitution as facial challenges, even
though he argued that the statutes were unconstitutional as applied; (3) refusing to
acknowledge that a reference to prostitution in Lawrence v. Texas, 539 U.S. 558
(2003), is non-binding dicta; (4) applying the wrong standard—rational basis, rather
5 than strict scrutiny or rational basis with bite—to Utah’s statutes criminalizing
prostitution; and (4) dismissing his equal-protection claims. Mr. Greer also argues
that “a robust consensus of persuasive authority” supports his position. Aplt.
Opening Br. at 34.
The magistrate judge provided a thorough explanation that we need not repeat
here. We have reviewed the magistrate judge’s Memorandum Decision and Order,
along with the record, the controlling law, and the parties’ arguments. We agree with
the magistrate judge’s analysis and thus do not adopt Mr. Greer’s asserted authority
to the contrary. We therefore affirm the dismissal of Mr. Greer’s complaint, as
supplemented, for substantially the same reasons stated in the magistrate judge’s
May 8, 2018 Memorandum Decision and Order.
III. CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge