Prisbrey v. State Auto Insurance Companies

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 14, 2024
• Docket: 24-4037
• Status: Unpublished

Opinion

Appellate Case: 24-4037 Document: 38-1 Date Filed: 11/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court KENT TERRY PRISBREY,

Plaintiff - Appellant,

v. No. 24-4037 & No. 24-4068 (D.C. No. 4:21-CV-00124-DN) STATE AUTO INSURANCE (D. Utah) COMPANIES; MILBANK INSURANCE COMPANY,

Defendants - Appellees,

and

DOES A-Z,

Defendant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Pro se Plaintiff Kent Terry Prisbrey appeals from the district court’s orders

dismissing his claims against Defendants State Auto Insurance Companies and

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-4037 Document: 38-1 Date Filed: 11/14/2024 Page: 2

Milbank Insurance Company and awarding attorney fees to Defendants. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the district court.

I. BACKGROUND

In May 2020 Plaintiff filed a claim under his homeowner’s insurance policy

with State Auto Insurance Companies for water damage caused by a broken pipe. The

on-site inspector estimated damages of $9,955.41. Plaintiff emailed photos of the

damage and a bid for mitigation, not repair, to the State Auto adjuster assigned to his

claim. Plaintiff then proceeded with mitigating the damage, removing drywall, and

making other repairs. The next month, he emailed State Auto to alert it that he had

discovered additional water damage since the inspection. He claimed $154,986.86 in

additional damages. State Auto requested receipts for the completed repairs and any

prior authorization from State Auto representatives to make those repairs. A dispute

then arose about the amount of damages and cost of repairs.

In December 2021 Plaintiff filed a complaint against Defendants in the United

States District Court for the District of Utah. But during discovery he refused to

allow Defendants to inspect his home to verify his claims of additional damages. The

court ordered Plaintiff to cooperate with Defendants in scheduling an inspection of

his property. Rather than comply with the order, Plaintiff served numerous pro se

subpoenas and filed “Affidavits of Truth” that the court deemed “irrelevant” and

“vague.” Supp. App’x at 46, 51. Although the court twice more ordered plaintiff to

cooperate with Defendants’ inspection requests, Plaintiff repeatedly refused to

comply. In June 2023 the court ordered Plaintiff to pay $4,779.50 to Defendant in

Page 2 Appellate Case: 24-4037 Document: 38-1 Date Filed: 11/14/2024 Page: 3

attorney fees for noncompliance with the inspection orders. It reminded Plaintiff that

he chose to initiate this case and therefore had a duty to prosecute it.

In November 2023, after multiple warnings to Plaintiff, the court dismissed his

claim with prejudice because he had “failed to prosecute [his] case” and “willfully

refused to comply with court Rules and orders, including [the court’s] orders

regarding the property’s inspection.” R1. at 112.1 In February 2024 the district court

awarded Defendants additional attorney fees of $7,676.00 incurred because of

Plaintiff’s failure to comply with orders to permit inspection. In March Plaintiff filed

a notice of appeal, which was docketed in this court as No. 24-4037. In April Plaintiff

submitted 12,500 Zimbabwean dollars, worth approximately 40 U.S. dollars, to

Defendants. Plaintiff claimed that this payment covered the thousands he owed

Defendants in court-ordered attorney fees. The court found that Plaintiff’s “attempt to

satisfy his obligation through tender of Zimbabwean dollars is another example of his

repeated flouting of court orders and impeding the just and speedy resolution of this

case,” and ordered him to pay an additional $462.50 to Defendants to cover the

attorney fees “necessitated by Plaintiff’s intentional improper tender.” R2. at 228. In

June Plaintiff filed a second notice of appeal, which was docketed in this court as No.

24-4068.

1 Because the records on appeal are not identical, we will refer to the record on appeal in 24-4037 as R1 and the record on appeal in 24-4068 as R2. Page 3 Appellate Case: 24-4037 Document: 38-1 Date Filed: 11/14/2024 Page: 4

II. DISCUSSION

We affirm the judgments below because Plaintiff forfeited his right to review

by submitting woefully inadequate briefs.

Because Plaintiff is a pro se litigant, we construe his filings liberally. See

Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013). But “this court has

repeatedly insisted that pro se parties follow the same rules of procedure that govern

other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th

Cir. 2005) (brackets and internal quotations marks omitted). Although we will often

overlook “the [pro se] plaintiff’s failure to cite proper legal authority, his confusion

of various legal theories, his poor syntax and sentence construction, or his

unfamiliarity with pleading requirements, [we cannot] assume the role of advocate.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)

Fed. R. App. P. 28(a) sets forth basic requirements for the contents of an

appellant’s opening brief, including “a table of contents,” “a table of authorities,” “a

statement of the issues presented for review,” “a concise statement . . . setting out the

facts relevant to the issues submitted for review, describing the relevant procedural

history, and identifying the rulings presented for review,” and an argument

containing “appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies.” None of these

elements appear in Plaintiff’s briefs. The briefs are unfocused, disorganized,

meandering, and in large part unintelligible. They contain not one citation to the

record and the handful of mentions of authoritative sources (in a reply brief styled as

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a “jurisdiction challenge”) are irrelevant. Further, as Defendants’ answering brief

accurately states, “this does not even account for the exhausting mental gymnastics

required to make sense of [Plaintiff]’s theories—which is sometimes impossible

considering the lack of punctuation and analysis.” Aplee. Br. at 20–21.

As a result, Plaintiff has utterly failed to perform “[t]he first task of an

appellant,” which is “to explain to us why the district court’s decision was wrong.”

Nixon v. City & Cnty. Of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). To give just one

example, the principal theme of Plaintiff’s briefs appears to be that he should not have

been compelled to permit an inspection of his home by an agent of Defendants, but he

never explains why the accommodations offered by the district court (not to endanger the

health of his wife, etc.) were inadequate. It is simply unacceptable to place the burden on

opposing counsel and this court to meticulously examine the record and research the law

in a search for reversible error. The district court appears to have made extraordinary

efforts to be fair to Plaintiff, and this court has gone beyond what duty requires to

ascertain whether there is any merit to Plaintiff’s dissatisfaction. Plaintiff is entitled to

nothing more.

III. CONCLUSION

We AFFIRM the district-court orders.

Entered for the Court

Harris L Hartz Circuit Judge

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