Lopez v. Compa Industries

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 24, 2024
• Docket: 24-2041
• Status: Unpublished

Opinion

Appellate Case: 24-2041 Document: 010111084172 Date Filed: 07/24/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 24, 2024 _________________________________ Christopher M. Wolpert Clerk of Court SAMUEL RENE LOPEZ,

Plaintiff - Appellant,

v. No. 24-2041 (D.C. No. 1:23-CV-00303-JB-LF) COMPA INDUSTRIES, INC.; (D.N.M.) STRATIFY, LLC; EDNA L. LOPEZ; DANIEL JESENLOPEZ; BRYANT BINGHAM; ASHLEY CHENOT; ARMANDO R. LOPEZ; ALLEGRA HANSON; KAREN MONTY,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Samuel Lopez, proceeding pro se,1 appeals the district court’s order dismissing

his various claims against Compa Industries, Inc., several of Compa’s officers and

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We construe Lopez’s pro se filings liberally, “but we do not act as his advocate.” United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Appellate Case: 24-2041 Document: 010111084172 Date Filed: 07/24/2024 Page: 2

directors, and Stratify, LLC. Because we agree with the district court that Lopez fails

to state any claims, we affirm.

Background

Proceeding in forma pauperis (IFP), Lopez filed an operative amended

complaint asserting, as relevant here, claims under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e to 2000e-17; the Americans with Disabilities Act (ADA)

of 1990, 42 U.S.C. § 12111–12213; the Genetic Information Nondiscrimination Act

(GINA) of 2008, 42 U.S.C. § 2000ff to 2000ff-11; and the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–1968.2 Highly summarized,

the complaint describes a sprawling family drama revolving around Compa, a

business founded by Lopez’s father. Lopez’s mother and two of his brothers serve in

various leadership roles at Compa, and one brother operates Stratify, a separate

company. Lopez states that he worked at Compa intermittently during the last 20

years until he was wrongfully terminated.

Lopez alleges, in general terms, a history of family conflict involving

favoritism, physical abuse, and questions of paternity. For instance, Lopez asserts

that between 2012 and 2013, he relocated to work for one of his brothers as a

2 This operative amended complaint was the ninth that Lopez filed in this litigation. After his initial complaint resulted in a show-cause order, Lopez filed a series of seven amended complaints, which in turn prompted the magistrate judge to further direct him to file a clearly labeled amended complaint not to exceed 35 pages. In response, Lopez filed two substantially similar amended complaints on the same day. The district court treated the first one as operative. Lopez does not challenge that characterization, so we do the same.

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software developer but that his brother instead “extorted [him] for physical labor.”

R. 478. According to Lopez, his mother and brother ridiculed him for working “like a

[M]exican” and “a slave,” and when Lopez asked for a raise, his brother “would call

[him] a ‘Jew.’” Id. Lopez’s complaint states that when he refused to perform

additional physical labor, he was fired “under fraudulent terms.” Id. Lopez also

recounts a 2010 incident in which he was involuntarily committed to a psychiatric

hospital in New Mexico, asserting that his mother used that incident against him in

2020 or 2021 when, during “one of [their] negotiations[,] she told [Lopez] she didn’t

have to honor the contract because [he] was ‘crazy.’” Id. at 479.

Lopez devotes the remainder of his complaint to describing what he asserts is a

criminal RICO conspiracy, alluding in vague and conclusory terms to myriad

“frauds” committed by various family members and Compa employees. For example,

he accuses his mother of stealing from his storage units, as well as extortion and

“multiple frauds and breaches of contracts.” Id. at 481. Lopez also makes repeated

reference to his work acquiring a particular government certification for Compa and

seems to allege that his brother sought to steal or sabotage that certification.

After reviewing the amended complaint, the district court dismissed it sua

sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure

12(b)(6), concluding that Lopez failed to state any claims, including claims under

Title VII, the ADA, GINA, or RICO, and that further opportunity for amendment to

the complaint would be futile.

Lopez appeals.

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Analysis

“We review de novo the district court’s decision to dismiss an IFP complaint

under . . . § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 F.3d

1214, 1217 (10th Cir. 2007). To that end, “[w]e apply the same standard of review

for dismissals under § 1915(e)(2)(B)(ii) that we employ for [Rule 12(b)(6)] motions

to dismiss for failure to state a claim.” Id. at 1217–18. “In determining whether a

dismissal is proper, we must accept the allegations of the complaint as true and

construe those allegations, and any reasonable inferences that might be drawn from

them, in the light most favorable to the plaintiff.” Gaines v. Stenseng, 292 F.3d 1222,

1224 (10th Cir. 2002). “Dismissal of a pro se complaint for failure to state a claim is

proper only where it is obvious that the plaintiff cannot prevail on the facts he has

alleged and it would be futile to give [the plaintiff] an opportunity to amend.” Curley

v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001) (quoting Perkins v. Kan. Dep’t of

Corrs., 165 F.3d 803, 806 (10th Cir. 1999)).

Under Rule 12(b)(6)’s failure-to-state-a-claim standard, a plaintiff must “plead

sufficient factual allegations ‘to state a claim to relief that is plausible on its face.’”

Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104 (10th Cir.

2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is

facially plausible ‘when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In assessing

plausibility, we need not accept conclusory allegations unsupported by facts. See

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Clinton Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th Cir. 2023). And

although “the [Rule] 12(b)(6) standard does not require that [Lopez] establish a prima

facie case in [his] complaint, the elements of each alleged cause of action help to

determine whether [he] has set forth a plausible claim.” Khalik v. United Air Lines,

671 F.3d 1188, 1192 (10th Cir. 2012).

Lopez challenges the dismissal of his federal claims under the ADA, Title VII,

and RICO. We consider each in turn.3

I. ADA

Lopez first challenges the district court’s dismissal of his ADA claim. To state

a prima facie case of discrimination under the ADA, Lopez must allege that he “is

disabled within the meaning of the ADA, . . . is qualified to perform the essential

functions of the job with or without accommodation, and . . . suffered an adverse

employment action because of [his] disability.” Edmonds-Radford v. Sw. Airlines

Co., 17 F.4th 975, 989–90 (10th Cir. 2021). “A disability, as defined by the ADA, is

‘(A) a physical or mental impairment that substantially limits one or more of the

major life activities of such individual; (B) a record of such impairment; or (C) being

regarded as having such an impairment.’” McWilliams v. Jefferson Cnty., 463 F.3d

1113, 1116 (10th Cir. 2006) (quoting Croy v. Cobe Laboratories, Inc., 345 F.3d

3 Lopez’s appellate brief purports to challenge the dismissal of his GINA claim as well, but in so doing, he collapses the GINA claim into his Title VII claim and does not advance any argument specific to GINA. We therefore decline to address this argument as inadequately presented. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). 5 Appellate Case: 24-2041 Document: 010111084172 Date Filed: 07/24/2024 Page: 6

1199, 1204 (10th Cir. 2003)). The district court ruled that Lopez “does not state a

claim pursuant to the ADA[] because there are no factual allegations showing that

Lopez is disabled within the ADA’s meaning or that he suffered an adverse

employment action because of his disability.” R. 668.

On appeal, Lopez disputes the district court’s ruling by pointing out that his

mother’s stated reason for refusing to honor “his written employment contract was

because ‘he was crazy,’” adding that his “mental[-health] medical history was used as

a weapon to . . . discriminate against him in the protected activity of employment.”

Aplt. Br. 3. But we agree with the district court’s conclusion that Lopez’s complaint

is devoid of allegations establishing that he is disabled within the meaning of the

ADA. While Lopez alleges that he was hospitalized for mental-health reasons over a

decade ago, his complaint does not state that he suffers from any ongoing mental-

health impairment that has interfered with his major life activities. See Johnson v.

Weld Cnty., 594 F.3d 1202, 1218 n.10 (10th Cir. 2010) (single instance of temporary

blindness inadequate to establish ADA disability). Moreover, his allegation that his

mother called him “crazy” while discussing an employment contract is inadequate to

support a plausible inference that his mother terminated his employment because of

this decade-old incident, particularly in light of Lopez’s failure to plead any factual

details surrounding the alleged termination of his employment. See Clinton, 63 F.4th

at 1275 (explaining that we “need not accept ‘[t]hreadbare recitals of the elements of

a cause of action [that are] supported by mere conclusory statements’” (alterations in

original) (quoting Iqbal, 556 U.S. at 678)).

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II. Title VII

Lopez next challenges the district court’s dismissal of his Title VII claim.

“Title VII makes it unlawful ‘to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.’” Khalik, 671 F.3d at 1192 (quoting 42 U.S.C.

§ 2000e-2(a)(1)). When, as here, a plaintiff “seeks to use circumstantial evidence to

show [their] employer’s discriminatory intent,” Bennett v. Windstream Commc’ns,

Inc., 792 F.3d 1261, 1266 (10th Cir. 2015), courts typically apply the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under that framework, a plaintiff can establish a prima facie case of discrimination

by establishing “that (1) [he] is a member of a protected class, (2) [he] suffered an

adverse employment action, (3) [he] qualified for the position at issue, and (4) [he]

was treated less favorably than others not in the protected class.” Khalik, 671 F.3d at

1192. Here, the district court concluded, in a very brief assessment, that Lopez failed

to state a claim “because there are no factual allegations that Lopez suffered an

adverse employment action under circumstances giving rise to an inference of racial,

religious, or national[-]origin discrimination.” R. 668.

Construing Lopez’s appellate brief liberally, he argues that he has adequately

pleaded a Title VII discrimination claim by alleging that his brother and mother

regarded him as having more Mexican and Native American heritage than his

siblings and referred to him using derogatory racial terms. We disagree. Leaving

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aside whether Lopez adequately pleaded an adverse employment action or

membership in a protected class, he entirely failed to plead any facts showing that

others outside of his protected class were treated more favorably than he was. For

that reason, he fails to state a Title VII claim. See Khalik, 671 F.3d at 1194

(dismissing Title VII claim in part because “[t]here are no allegations of similarly

situated employees who were treated differently”).

Moreover, we discern no facts supporting any inference of discrimination here.

See Bennett, 792 F.3d at 1266 (stating Title VII prima facie case to include more

general element of “circumstances giving rise to an inference of discrimination”).

Reviewing Lopez’s complaint as a whole, “there is nothing other than sheer

speculation to link [his mother and brother’s alleged derogatory attitudes and

comments] to a discriminatory . . . motive” for the termination of his employment.

Khalik, 671 F.3d at 1194. And Lopez’s “general assertions of discrimination . . .

without any details whatsoever of events leading up to [his] termination, are

insufficient to survive [dismissal].” Id. at 1193; see also Clinton, 63 F.4th at 1275

(noting that we need not accept conclusory allegations unsupported by facts).

III. RICO

Last, Lopez asserts that he adequately pleaded a civil RICO claim under 18

U.S.C. § 1964(c). “To plead a valid RICO claim, a plaintiff must plausibly allege that

a defendant ‘(1) conducted the affairs (2) of an enterprise (3) through a pattern (4) of

racketeering activity.’” Johnson v. Heath, 56 F.4th 851, 858 (10th Cir. 2022)

(quoting George v. Urb. Settlement Servs., 833 F.3d 1242, 1248 (10th Cir. 2016)).

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“‘Racketeering activity’ consists of the criminal offenses listed in 18 U.S.C.

§ 1961(1), and a ‘pattern’ requires at least two racketeering acts committed within ten

years of each other.” Id. (quoting § 1961(5)). The district court concluded that Lopez

failed to state a RICO claim because he failed to “allege facts showing that each

[d]efendant’s conduct satisfied each element of a RICO claim.” R. 669.

On appeal, Lopez argues that he adequately “alleged a pattern of racketeering

going back decades, involving his mother, brothers, other Compa . . . employees,

[and] Stratify employees.” Aplt. Br. 4. We again disagree. While Lopez makes

repeated references to various crimes throughout his complaint, he fails to provide

any details or explanations about the nature of these crimes, and “conclusory

allegations without supporting factual averments are insufficient to state a claim on

which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991);

see also Clinton, 63 F.4th at 1275. For example, Lopez’s complaint alleges that his

brother committed wire fraud by sabotaging an application that Lopez submitted

seeking a particular government certification for Compa, but he never describes the

actual false representation his brother made at this time or how his brother intended

to obtain money or property as a result. See § 1961(1) (listing wire fraud under 18

U.S.C. § 1343 as RICO predicate); § 1343 (specifying that wire fraud necessarily

involves a scheme to “obtain[] money or property by means of false or fraudulent

pretenses”).

Similarly, the remainder of the complaint contains multiple generic references

to “fraud” but entirely fails to specify the type of frauds listed in § 1961 that each

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defendant allegedly committed. See Twombly, 550 U.S. at 555 (explaining that

complaint must “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests” (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957))). Lopez’s repeated references to extortion are likewise unavailing, since he never

describes any of the actual threats the defendants used to coerce him. See § 1961(1)

(listing extortion “chargeable under [s]tate law” as RICO predicate); N.M. Stat. Ann.

§ 30-16-9 (defining extortion as “the communication or transmission of any threat to

another by any means whatsoever with intent thereby to wrongfully obtain anything of

value or to wrongfully compel the person threatened to do or refrain from doing any act

against his will”). And the remaining allegations relate to activities or crimes that are not

predicate RICO offenses under § 1961, such as harassment, assault, breach of contract,

breach of fiduciary duty, wrongful termination, defamation, and negligence. See § 1961

(listing exclusively criminal acts as RICO predicates). Thus, because he does not allege

facts supporting any plausible predicate acts, Lopez fails to state a RICO claim.4

Conclusion

Because Lopez’s amended complaint fails to state any claims despite his

4 Lopez also argues on appeal that the district court improperly dismissed some defendants for lack of personal jurisdiction. In so doing, he misreads the district court’s order. After the district court dismissed all the federal claims, it declined to exercise supplemental jurisdiction over the remaining state-law claims. See 28 U.S.C. § 1367(c)(3). Thus, Lopez’s arguments with respect to personal jurisdiction are inapposite. And because his appellate brief does not challenge the district court’s treatment of his state-law claims, we need not consider that issue. 10 Appellate Case: 24-2041 Document: 010111084172 Date Filed: 07/24/2024 Page: 11

repeated attempts at amendment, we affirm the district court’s dismissal order.

Entered for the Court

Nancy L. Moritz Circuit Judge