Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court NEAL PATRICK O’FLAHERTY; DYLAN KEITH O’FLAHERTY,
Plaintiffs - Appellants,
v. No. 24-2116 (D.C. No. 1:23-CV-00389-KWR-GJF) UNITED STATES MARSHALS (D.N.M.) SERVICE; NEW MEXICO STATE POLICE; TORRANCE COUNTY SHERIFF'S DEPARTMENT; SEVENTH JUDICIAL DISTRICT ATTORNEY'S OFFICE; TORRANCE COUNTY; STATE OF NEW MEXICO; JOSE MARTIN RIVERA; K.R. BALLARD; CLINT WELLBORN; ADAM GARCIA; PAUL VELEZ; MANUEL WILLIAM SIGARROA,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MATHESON, BALDOCK, and MORITZ, 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 2
Neil and Dylan O’Flaherty, proceeding pro se, appeal the district court’s order
dismissing their complaint. 1 Because the O’Flahertys fail to offer any meaningful
challenge to the district court’s reasoning, we affirm.
Background
The O’Flahertys filed this action against various law-enforcement agencies
and officers based in part on a May 2021 incident in which officers entered the
O’Flahertys’ New Mexico home and arrested Dylan. They asserted state-law tort
claims and federal claims under a terrorism-reporting statute, a racketeering statute,
and 42 U.S.C. § 1983.
A magistrate judge granted the O’Flahertys’ motion to proceed in forma
pauperis and ordered them to show cause why the court should not dismiss their
claims for lack of jurisdiction or failure to state a claim and to file an amended
complaint. In response, the O’Flahertys filed an amended complaint largely asserting
the same claims. After issuing several more show-cause orders alerting the
O’Flahertys to various deficiencies in their claims, the district court ultimately
dismissed the action.
It first determined that the O’Flahertys failed to state a claim under 22 U.S.C.
§ 2656f(d)(2) because that provision merely defines “terrorism” for purposes of the
Secretary of State’s duty to transmit annual terrorism reports and does not create a
private right of action. The district court also dismissed the racketeering claims,
1 We liberally construe the O’Flahertys’ pro se filings, but we do not act as their advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023). 2 Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 3
explaining that the O’Flahertys failed to identify any predicate criminal offenses. See
18 U.S.C. § 1961.
Next, the district court turned to the O’Flahertys’ § 1983 claims. It dismissed
such claims against New Mexico and the New Mexico State Police for lack of
subject-matter jurisdiction, reasoning that these government entities were entitled to
sovereign immunity. 2 See Ruiz v. McDonnell, 299 F.3d 1173, 1180–81 (10th Cir.
2002). It relatedly concluded that the district attorney was entitled to prosecutorial
immunity. See Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1208 (10th Cir. 2022). The
district court next reasoned that the O’Flahertys failed to state a § 1983 claim against
the Torrance County Sheriff’s Department (because it is a governmental sub-unit that
could not be sued on its own) or against Torrance County (because the O’Flahertys
failed to allege a custom or policy that was the moving force behind the alleged
constitutional violations). See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.
1985). Last, the district court dismissed the claims against the defendants sued in
their individual capacities because the O’Flahertys failed to provide addresses where
these individual defendants could be served, despite having several opportunities to
do so. 3 See Fed. R. Civ. P. 4(m).
2 The district court reached the same immunity conclusion as to any claims asserted against the U.S. Marshals Service and against one marshal in his official capacity. 3 This dismissal was without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. But to the extent that the dismissal functioned as a dismissal with prejudice based on the running of the statute of limitations, the district court determined such a result was warranted based on the O’Flahertys’ failure to comply with multiple court orders to provide addresses for service. See Olsen v. 3 Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 4
Having dismissed all federal claims, the district court declined to exercise
supplemental jurisdiction over the remaining state-law claims. See 28 U.S.C.
§ 1367(c)(3). The O’Flahertys appeal, challenging the dismissal of their claims. 4
Analysis
We review the district court’s immunity and failure-to-state-a-claim rulings de
novo. Conforth v. Univ. of Okla. Bd. of Regents, 263 F.3d 1129, 1131 (10th Cir.
2001); Trujillo v. Williams, 465 F.3d 1210, 1215–16 (10th Cir. 2006). To the extent
the district court dismissed some claims under Rule 41(b), our review is for abuse of
discretion. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161–62 (10th
Cir. 2007).
But on appeal, the O’Flahertys fail to challenge the district court’s various
rationales for dismissing their claims. See Nixon v. City & Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why
the district court’s decision was wrong.”); Becker v. Kroll, 494 F.3d 904, 913 n.6
(10th Cir. 2007) (“An issue or argument insufficiently raised in the opening brief is
deemed waived.”). For instance, although the O’Flahertys broadly contend that their
Mapes, 333 F.3d 1199, 1204 (10th Cir.
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Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court NEAL PATRICK O’FLAHERTY; DYLAN KEITH O’FLAHERTY,
Plaintiffs - Appellants,
v. No. 24-2116 (D.C. No. 1:23-CV-00389-KWR-GJF) UNITED STATES MARSHALS (D.N.M.) SERVICE; NEW MEXICO STATE POLICE; TORRANCE COUNTY SHERIFF'S DEPARTMENT; SEVENTH JUDICIAL DISTRICT ATTORNEY'S OFFICE; TORRANCE COUNTY; STATE OF NEW MEXICO; JOSE MARTIN RIVERA; K.R. BALLARD; CLINT WELLBORN; ADAM GARCIA; PAUL VELEZ; MANUEL WILLIAM SIGARROA,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MATHESON, BALDOCK, and MORITZ, 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. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 2
Neil and Dylan O’Flaherty, proceeding pro se, appeal the district court’s order
dismissing their complaint. 1 Because the O’Flahertys fail to offer any meaningful
challenge to the district court’s reasoning, we affirm.
Background
The O’Flahertys filed this action against various law-enforcement agencies
and officers based in part on a May 2021 incident in which officers entered the
O’Flahertys’ New Mexico home and arrested Dylan. They asserted state-law tort
claims and federal claims under a terrorism-reporting statute, a racketeering statute,
and 42 U.S.C. § 1983.
A magistrate judge granted the O’Flahertys’ motion to proceed in forma
pauperis and ordered them to show cause why the court should not dismiss their
claims for lack of jurisdiction or failure to state a claim and to file an amended
complaint. In response, the O’Flahertys filed an amended complaint largely asserting
the same claims. After issuing several more show-cause orders alerting the
O’Flahertys to various deficiencies in their claims, the district court ultimately
dismissed the action.
It first determined that the O’Flahertys failed to state a claim under 22 U.S.C.
§ 2656f(d)(2) because that provision merely defines “terrorism” for purposes of the
Secretary of State’s duty to transmit annual terrorism reports and does not create a
private right of action. The district court also dismissed the racketeering claims,
1 We liberally construe the O’Flahertys’ pro se filings, but we do not act as their advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023). 2 Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 3
explaining that the O’Flahertys failed to identify any predicate criminal offenses. See
18 U.S.C. § 1961.
Next, the district court turned to the O’Flahertys’ § 1983 claims. It dismissed
such claims against New Mexico and the New Mexico State Police for lack of
subject-matter jurisdiction, reasoning that these government entities were entitled to
sovereign immunity. 2 See Ruiz v. McDonnell, 299 F.3d 1173, 1180–81 (10th Cir.
2002). It relatedly concluded that the district attorney was entitled to prosecutorial
immunity. See Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1208 (10th Cir. 2022). The
district court next reasoned that the O’Flahertys failed to state a § 1983 claim against
the Torrance County Sheriff’s Department (because it is a governmental sub-unit that
could not be sued on its own) or against Torrance County (because the O’Flahertys
failed to allege a custom or policy that was the moving force behind the alleged
constitutional violations). See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.
1985). Last, the district court dismissed the claims against the defendants sued in
their individual capacities because the O’Flahertys failed to provide addresses where
these individual defendants could be served, despite having several opportunities to
do so. 3 See Fed. R. Civ. P. 4(m).
2 The district court reached the same immunity conclusion as to any claims asserted against the U.S. Marshals Service and against one marshal in his official capacity. 3 This dismissal was without prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute. But to the extent that the dismissal functioned as a dismissal with prejudice based on the running of the statute of limitations, the district court determined such a result was warranted based on the O’Flahertys’ failure to comply with multiple court orders to provide addresses for service. See Olsen v. 3 Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 4
Having dismissed all federal claims, the district court declined to exercise
supplemental jurisdiction over the remaining state-law claims. See 28 U.S.C.
§ 1367(c)(3). The O’Flahertys appeal, challenging the dismissal of their claims. 4
Analysis
We review the district court’s immunity and failure-to-state-a-claim rulings de
novo. Conforth v. Univ. of Okla. Bd. of Regents, 263 F.3d 1129, 1131 (10th Cir.
2001); Trujillo v. Williams, 465 F.3d 1210, 1215–16 (10th Cir. 2006). To the extent
the district court dismissed some claims under Rule 41(b), our review is for abuse of
discretion. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161–62 (10th
Cir. 2007).
But on appeal, the O’Flahertys fail to challenge the district court’s various
rationales for dismissing their claims. See Nixon v. City & Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why
the district court’s decision was wrong.”); Becker v. Kroll, 494 F.3d 904, 913 n.6
(10th Cir. 2007) (“An issue or argument insufficiently raised in the opening brief is
deemed waived.”). For instance, although the O’Flahertys broadly contend that their
Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003) (identifying criteria courts should consider when dismissing an action with prejudice under Rule 41(b), such as interference with judicial process and efficacy of lesser sanctions). 4 The district court granted the O’Flahertys’ motion to proceed IFP on appeal. Additionally, we abated this appeal while the district court considered the O’Flahertys’ postjudgment motion to file an amended complaint. Construing the motion as one for relief from a final judgment under Federal Rule of Civil Procedure 60(b), the district court denied it, noting that the O’Flahertys had “ample opportunity” to amend their complaint and respond to orders to show cause. R. 148. 4 Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 5
complaint included a “sufficient level of detail to provide notice” of their claims to
the defendants, they provide no argument in support of that statement. Aplt. Br. 1.
And in purporting to challenge the district court’s jurisdictional rulings, they cite
only a statute concerning venue. 5 See Wachovia Bank v. Schmidt, 546 U.S. 303, 316
(2016) (explaining that “[v]enue is largely a matter of litigational convenience,”
while “[s]ubject[-]matter jurisdiction . . . concerns a court’s competence to adjudicate
a particular category of cases”). Under these circumstances, we decline to consider
the O’Flahertys’ inadequately presented arguments and conclude that they waived
any challenge to the district court’s rulings. See Nixon, 784 F.3d at 1368–69; Becker,
494 F.3d at 913 n.6.
The O’Flahertys also argue the district court failed to provide them with the
“standard 21-day period in which to correct and amend deficiencies.” Aplt. Br. 3. But
that is flatly incorrect—the district court allowed the O’Flahertys to file an amended
complaint and issued four show-cause orders directing them to correct various
deficiencies. Granting further opportunity to amend is “within the discretion of the
[d]istrict [c]ourt,” and the district court did not abuse that discretion here. Foman v.
Davis, 371 U.S. 178, 182 (1962).
5 The O’Flahertys’ citation to Barnes v. Zacarri, 669 F.3d 1295 (11th Cir. 2012), in an addendum to their opening brief is equally unpersuasive. That out-of- circuit case broadly held that a university administrator was not entitled to qualified immunity on an expelled student’s due-process challenge and that the university’s board of regents was entitled to sovereign immunity. See id. at 1298. The O’Flahertys fail to explain Barnes’s application here, and we can see no relevance. 5 Appellate Case: 24-2116 Document: 12-1 Date Filed: 12/12/2024 Page: 6
Conclusion
Because the O’Flahertys fail to challenge the district court’s rulings and
because the district court did not abuse its discretion in denying further leave to
amend, we affirm.
Entered for the Court
Nancy L. Moritz Circuit Judge