Kessler v. Brown & Williamson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 26 1999 TENTH CIRCUIT PATRICK FISHER Clerk

RAYMOND E. KESSLER,

Plaintiff-Appellant, No. 98-7159 v. (D.C. 98-CV-380-S) BROWN & WILLIAMSON, (Eastern District of Oklahoma) LORILLARD, R.J. REYNOLDS, and PHILLIP MORRIS,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Mr. Kessler brought claims against the Brown & Williamson, Lorrillard,

R.J. Reynolds, and Phillip Morris, seeking damages for his inhalation of second-

hand smoke. Mr. Kessler had filed nearly identical claims in state court against

all the defendants except Lorrillard, and lost on the merits. The district court

dismissed the claims against Brown & Williamson, Lorrillard, and Phillip Morris

for failure to state a claim. See Rec. doc. 24, at 7. It also noted res judicata

would preclude even a validly-stated claim against Brown & Williamson and

Phillip Morris. See id. In a separate order, the district court granted R.J.

Reynolds’ motion for summary judgment for failing to state a claim on which

relief could be granted. See Rec. doc. 26, at 4. The court expressly declined to

reach the res judicata and statute of limitations issues raised by the defendant as

they would be moot in light of the failure to state a claim. See id. at 2, n.1.

By way of appeal, Mr. Kessler had identified no facts and no issues for our

review. See Appnt’s Brief at 2-3 (A-12 Form). Mr. Kessler noted that the district

court did not apply the wrong law, did not incorrectly decide the facts, and did

not fail to consider important grounds for relief. See id. at 4. He further

identified no other reasons the district court’s judgment might be wrong. See id.

In the sole substantive comment in his brief, Mr. Kessler responds to the query,

“What action do you want the court to take in your case?”: “get me money.” See

id.

2 We review both a dismissal for failure to state a claim, and a grant of

summary judgment, de novo. See Chemical Weapons Working Group, Inc. v.

United States Dep’t of the Amry , 111 F.3d 1485, 1490 (10th Cir. 1997); Kaul v.

Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Mr. Kessler filed and appeals as a

pro-se plaintiff: We therefore construe his pleadings and appellate filing

liberally. See Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996); United

States v. Hardwell , 88 F.3d 897, 897 (10th Cir. 1996). That said, “an appellant’s

pro se status does not excuse the obligation of any litigant to comply with the

fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”

Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994).

Mr. Kessler has failed to identify a single issue for our review, and has

failed to allege any facts from which we might discern an issue for review. An

appellant’s brief must include a statement of the “issues presented for review,”

and “[a]n argument.” Fed. R. App. P. 28 (a)(5) and (9); see also American

Airline v. Christiansen , 967 F.2d 410, 415 n.8 (10th Cir. 1992). A single

statement of “get me money,” as an argument or an issue fails to rise to the level

required by the Rules of Appellate Procedure, even liberally construed for a pro-

se plaintiff.

3 We AFFIRM the decision of the district court for substantially the same

reasons articulated by the court.

Entered for the Court,

Robert H. Henry Circuit Judge