FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 22, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ROY L. JACKSON,
Plaintiff - Appellant,
v. No. 17-5041 (D.C. No. 4:16-CV-00217-CVE-PJC) RICHARD COONS; DRYER & (N.D. Okla.) ASSOCIATES P.C.; DAVID M. DRYER,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________
The district court dismissed claims Roy L. Jackson made under 42 U.S.C.
§ 1985(3) and declined to exercise supplemental jurisdiction over his state-law
claims. It later denied a post-judgment motion to alter or amend the judgment.
Representing himself, Mr. Jackson appeals. Given the plain designation in the notice
of appeal of only the order denying the post-judgment motion, our jurisdiction
extends only so far as to review that decision. We affirm.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND
When Richard and Barbara Coons bought real property from Patricia Howie,
they agreed to pay her mortgage loan. They made the payments online. Ms. Howie
later tried to cancel the transaction and to bar the Coonses’ online access to the
mortgage account. The Coonses, represented by David M. Dryer of
Dryer & Associates, P.C. (the Dryer Firm), prevailed in state court, which ordered
Ms. Howie not to interfere with their access to the account. But shortly thereafter the
Coonses again lost online access to the account, and disputes over their access
continued for months. Those later events involved Mr. Jackson, allegedly acting as
Ms. Howie’s attorney-in-fact. Ultimately the state court found Ms. Howie in
contempt of court based on her and Mr. Jackson’s actions.
As relevant to this action, § 1985(3) prohibits conspiracies “for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws.” In an
original complaint and then a first amended complaint, Mr. Jackson claimed that by
impairing his privilege to manage the mortgage account, Mr. Coons, Mr. Dryer, and
the Dryer Firm deprived him of his First Amendment rights to free expression and
free association, thereby violating § 1985(3). He also made claims under state law.
The district court dismissed the § 1985(3) claims because Mr. Jackson did not allege
any state action or involvement in the alleged conspiracy, a required element of a
§ 1985(3) claim alleging deprivation of First Amendment rights. See United Bhd. of
Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 830, 832
2 (1983); Tilton v. Richardson, 6 F.3d 683, 686-87 (10th Cir. 1993). “Plaintiff alleges
that defendants conspired to interfere with his access to Patricia Howie’s mortgage
account, but this is a purely private matter and there is no possible state involvement
or interest in the alleged conspiracy.” R. at 31-32. The district court declined to
exercise supplemental jurisdiction over the state-law claims.
Mr. Jackson moved to set aside the judgment, asserting that he “believed he
would have an opportunity through discovery” to make the required allegation of
state action and that he “has alleged with particularity ‘State action’ in His 2nd
amended complaint presented simultaneously with this motion.” R. at 35. Treating
the motion as one under Fed. R. Civ. P. 59(e), the district court denied relief.
“Plaintiff’s filings in this case show[] that he is reasonably familiar with the legal
system, and his pro se status does not excuse his failure to allege an essential element
of his § 1985 claims.” R. at 68-69. The district court further concluded that the
second amended complaint also failed to state a claim under § 1985(3).
ANALYSIS
I. Order(s) Under Review
We first must determine what order or orders we can review. The notice of
appeal states that Mr. Jackson appeals “from the Order filed April 7, 2017,” R. at 71,
which was the order denying the Rule 59(e) motion. The appellees therefore argue
that under Fed. R. App. P. 3(c)(1)(B), this court may review only the Rule 59(e)
order, not the original order dismissing the § 1985(3) claims and declining to exercise
jurisdiction over the state-law claims.
3 Rule 3(c)(1)(B) requires that a notice of appeal “designate the judgment, order,
or part thereof being appealed.” “Rule 3’s dictates are jurisdictional in nature, and
their satisfaction is a prerequisite to appellate review. Although courts should
construe Rule 3 liberally when determining whether it has been complied with,
noncompliance is fatal to an appeal.” Smith v. Barry, 502 U.S. 244, 248 (1992)
(citation omitted). And even though Mr. Jackson represents himself, he still must
“follow the same rules of procedure that govern other litigants.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation
marks omitted).
Because the notice of appeal named only the April 7, 2017, order, it did not
preserve an appeal of the earlier merits order. See Scrivner v. Sonat Expl. Co.,
242 F.3d 1288, 1290 n.1 (10th Cir. 2001) (holding that notice of appeal that “clearly
states that it is appealing the attorney fee order . . . is insufficient to appeal the
merits”); cf. Brown v. Eppler, 725 F.3d 1221, 1228 n.4 (10th Cir. 2013) (determining
that both a final judgment and an order denying a Rule 59 motion were properly
designated when the notice of appeal referred to both orders). Of course, “our
jurisdiction will not be defeated if other papers filed within the time period for filing
the notice of appeal provide the functional equivalent of what Rule 3 requires.”
Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119 F.3d 847, 849
(10th Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 22, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ROY L. JACKSON,
Plaintiff - Appellant,
v. No. 17-5041 (D.C. No. 4:16-CV-00217-CVE-PJC) RICHARD COONS; DRYER & (N.D. Okla.) ASSOCIATES P.C.; DAVID M. DRYER,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________
The district court dismissed claims Roy L. Jackson made under 42 U.S.C.
§ 1985(3) and declined to exercise supplemental jurisdiction over his state-law
claims. It later denied a post-judgment motion to alter or amend the judgment.
Representing himself, Mr. Jackson appeals. Given the plain designation in the notice
of appeal of only the order denying the post-judgment motion, our jurisdiction
extends only so far as to review that decision. We affirm.
* 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. BACKGROUND
When Richard and Barbara Coons bought real property from Patricia Howie,
they agreed to pay her mortgage loan. They made the payments online. Ms. Howie
later tried to cancel the transaction and to bar the Coonses’ online access to the
mortgage account. The Coonses, represented by David M. Dryer of
Dryer & Associates, P.C. (the Dryer Firm), prevailed in state court, which ordered
Ms. Howie not to interfere with their access to the account. But shortly thereafter the
Coonses again lost online access to the account, and disputes over their access
continued for months. Those later events involved Mr. Jackson, allegedly acting as
Ms. Howie’s attorney-in-fact. Ultimately the state court found Ms. Howie in
contempt of court based on her and Mr. Jackson’s actions.
As relevant to this action, § 1985(3) prohibits conspiracies “for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws.” In an
original complaint and then a first amended complaint, Mr. Jackson claimed that by
impairing his privilege to manage the mortgage account, Mr. Coons, Mr. Dryer, and
the Dryer Firm deprived him of his First Amendment rights to free expression and
free association, thereby violating § 1985(3). He also made claims under state law.
The district court dismissed the § 1985(3) claims because Mr. Jackson did not allege
any state action or involvement in the alleged conspiracy, a required element of a
§ 1985(3) claim alleging deprivation of First Amendment rights. See United Bhd. of
Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 830, 832
2 (1983); Tilton v. Richardson, 6 F.3d 683, 686-87 (10th Cir. 1993). “Plaintiff alleges
that defendants conspired to interfere with his access to Patricia Howie’s mortgage
account, but this is a purely private matter and there is no possible state involvement
or interest in the alleged conspiracy.” R. at 31-32. The district court declined to
exercise supplemental jurisdiction over the state-law claims.
Mr. Jackson moved to set aside the judgment, asserting that he “believed he
would have an opportunity through discovery” to make the required allegation of
state action and that he “has alleged with particularity ‘State action’ in His 2nd
amended complaint presented simultaneously with this motion.” R. at 35. Treating
the motion as one under Fed. R. Civ. P. 59(e), the district court denied relief.
“Plaintiff’s filings in this case show[] that he is reasonably familiar with the legal
system, and his pro se status does not excuse his failure to allege an essential element
of his § 1985 claims.” R. at 68-69. The district court further concluded that the
second amended complaint also failed to state a claim under § 1985(3).
ANALYSIS
I. Order(s) Under Review
We first must determine what order or orders we can review. The notice of
appeal states that Mr. Jackson appeals “from the Order filed April 7, 2017,” R. at 71,
which was the order denying the Rule 59(e) motion. The appellees therefore argue
that under Fed. R. App. P. 3(c)(1)(B), this court may review only the Rule 59(e)
order, not the original order dismissing the § 1985(3) claims and declining to exercise
jurisdiction over the state-law claims.
3 Rule 3(c)(1)(B) requires that a notice of appeal “designate the judgment, order,
or part thereof being appealed.” “Rule 3’s dictates are jurisdictional in nature, and
their satisfaction is a prerequisite to appellate review. Although courts should
construe Rule 3 liberally when determining whether it has been complied with,
noncompliance is fatal to an appeal.” Smith v. Barry, 502 U.S. 244, 248 (1992)
(citation omitted). And even though Mr. Jackson represents himself, he still must
“follow the same rules of procedure that govern other litigants.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation
marks omitted).
Because the notice of appeal named only the April 7, 2017, order, it did not
preserve an appeal of the earlier merits order. See Scrivner v. Sonat Expl. Co.,
242 F.3d 1288, 1290 n.1 (10th Cir. 2001) (holding that notice of appeal that “clearly
states that it is appealing the attorney fee order . . . is insufficient to appeal the
merits”); cf. Brown v. Eppler, 725 F.3d 1221, 1228 n.4 (10th Cir. 2013) (determining
that both a final judgment and an order denying a Rule 59 motion were properly
designated when the notice of appeal referred to both orders). Of course, “our
jurisdiction will not be defeated if other papers filed within the time period for filing
the notice of appeal provide the functional equivalent of what Rule 3 requires.”
Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119 F.3d 847, 849
(10th Cir. 1997) (internal quotation marks omitted). No other document filed in the
appeal period, however, indicated an intent to appeal the earlier dismissal order. We
4 therefore may review only the April 7, 2017, decision denying Mr. Jackson’s post-
judgment motion.
II. Denial of Post-Judgment Motion
We review the denial of a Rule 59(e) motion for abuse of discretion. Etherton
v. Owners Ins. Co., 829 F.3d 1209, 1228 (10th Cir. 2016). “To reverse, we must
have a definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.” Id.
(internal quotation marks omitted). “The abuse of discretion standard includes
review to determine that the discretion was not guided by erroneous legal
conclusions.” Id. (internal quotation marks omitted).
The district court’s principal reason for denying the Rule 59 motion was that
Mr. Jackson had been on notice that his § 1985(3) claim required the “state action”
element, yet his first amended complaint had failed to allege facts to support state
action and he had failed to argue state action in the briefing. The district court did
not abuse its discretion in denying post-judgment relief on the ground that
Mr. Jackson should have made his assertions of state action earlier. A post-judgment
motion should not advance “supporting facts which were available at the time of the
original motion,” and “a motion for reconsideration . . . is not appropriate to . . .
advance arguments that could have been raised in prior briefing.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
The district court further concluded that the proposed second amended
complaint failed to state a claim under § 1985(3). We agree that the second amended
5 complaint does not state a § 1985(3) claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“[A] complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” (internal quotation marks
omitted)). Mr. Dryer’s and the Dryer Firm’s representation of Mr. Coons in the
state-court lawsuit was purely private activity that fails to support a § 1985(3) claim.
See Redwood v. Dobson, 476 F.3d 462, 467 (7th Cir. 2007). Contrary to
Mr. Jackson’s argument, these defendants’ membership in the state bar and
organization under state law do not plausibly establish the state action element.
Finally, Mr. Jackson argues in his reply brief that his proposed second
amended complaint also presented a claim under 42 U.S.C. § 1983. This argument is
waived for failure to present it in the opening brief. See Reedy v. Werholtz, 660 F.3d
1270, 1274 (10th Cir. 2011). But in any event, Mr. Jackson cannot proceed against
these defendants under § 1983 because an attorney’s representation of a client in a
lawsuit does not constitute action under color of state law as required by § 1983.
See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005); Barnard v. Young,
720 F.2d 1188, 1189 (10th Cir. 1983).
CONCLUSION
The district court’s denial of the post-judgment motion is affirmed.
Entered for the Court
Monroe G. McKay Circuit Judge