Smith v. Tulsa County District Attorney

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 17, 2020
• Docket: 19-6123
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 17, 2020 _________________________________ Christopher M. Wolpert Clerk of Court PAMELA SMITH,

Plaintiff - Appellant,

v. No. 19-6123 (D.C. No. 5:19-CV-00426-D STATE OF OKLAHOMA ex rel. (W.D. Okla.) TULSA COUNTY DISTRICT ATTORNEY OFFICE; STATE OF OKLAHOMA ex rel. DEPARTMENT OF PUBLIC SAFETY; OKLAHOMA ATTORNEY GENERAL,

Defendants - Appellees.

_________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges. _________________________________

This appeal grew out of a state employee’s alleged sexual assault of

Ms. Pamela Smith when she was an inmate. Ms. Smith unsuccessfully sued

* Oral argument would not materially help us to decide this appeal. We have thus decided the appeal based on the appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). the employee in a prior suit. Ms. Smith then brought this suit against two

state entities (the district attorney’s office and the department of public

safety) and a state official (the state attorney general). The defendants

moved to dismiss, and Ms. Smith failed to respond. Based on the existing

record, the district court granted the motion to dismiss as confessed and on

the merits, ruling that the claims were time-barred, precluded by collateral

estoppel, and subject to the defendants’ immunities. Ms. Smith appeals,

and we affirm.

1. The defendants did not default or deceive the district court regarding service of their motion to dismiss.

Ms. Smith contends that the defendants defaulted on the complaint

and deceived the district court regarding service of the motion to dismiss.

We reject these contentions.

Entry of a default. The clerk of the district court can enter a default

when the record shows that the defendants failed to timely respond to a

complaint within the allotted time period. Fed. R. Civ. P. 55(a). But Ms.

Smith didn’t file a proof of service, so the court clerk had no basis to enter

a default against the defendants.

Ms. Smith asks us to enter a default judgment in her favor. But

courts of appeals cannot enter default judgments; those are entered by

district courts. See Fed. R. Civ. P. 55(b).

2 Deception regarding service of the motion to dismiss. The defendants

moved to dismiss and certified that the motion had been sent to Ms. Smith.

But Ms. Smith denied that she’d received the motion, so she complained in

a letter filed with the court clerk. Soon after that letter was filed, the

defendants sent another copy of their motion to dismiss to Ms. Smith.

The district court then ordered the defendants to resend their motion

to Ms. Smith. Because the defendants had already resent their motion three

days before the district court’s order, they did not send Ms. Smith a third

copy. Instead, the defendants filed a certificate stating that the motion to

dismiss had been sent a second time to Ms. Smith.

Ms. Smith argues in her reply that this certificate was fraudulently

deleted from the Pacer system. But the certificate continues to appear on

the district court’s docket sheet, is included in our record on appeal, and is

available to us when we access the docket sheet. 1

Ms. Smith also argues that she never received the motion to dismiss

from the defendants. This argument implicates the treatment of the motion

as confessed. If Ms. Smith did not receive the motion to dismiss, it should

not have been treated as confessed.

1 The docket entry for the certificate appears on the docket sheet in Ms. Hill’s appendix, but not on the docket sheet attached to her reply brief.

3 When a district court rules that a motion was confessed, we typically

apply the abuse-of-discretion standard. Murray v. Archambo, 132 F.3d 609,

610 (10th Cir. 1998). Though Ms. Smith does not mention the standard of

review, we note that she extensively argues that the defendants never

mailed the motion to dismiss to her and actively deceived the court. We

have no way of knowing who is telling the truth or why Ms. Smith didn’t

receive the motion to dismiss. The defendants have attested that they twice

mailed the motion to dismiss to Ms. Smith at the post office box number

that she has used in her own filings. But Ms. Smith denies that she’s

received these mailings from the defendants. 2

In light of these denials, we decline to address the district court’s

treatment of the motion to dismiss as confessed. As noted above, the court

ruled not only that the motion was confessed but also that it was valid on

the merits based on theories of timeliness, collateral estoppel, and

immunity. Two of these theories, timeliness and immunity, independently

support the dismissal.

2 Ms. Smith does not deny that she knew of the motion to dismiss by June 21, 2019. And, of course, the motion to dismiss was available from the court clerk’s office. We do not know why Ms. Smith didn’t ask the clerk’s office for a copy of the motion to dismiss.

4 2. The dismissal was proper based on timeliness and immunity. 3

The district court concluded in part that the claims are time-barred

and subject to the defendants’ immunities. Ms. Smith does not address

these parts of the district court’s ruling. Given the absence of any

argument by Ms. Smith, we decline to sua sponte address the district

court’s reliance on timeliness and immunity. See Walters v. Wal-Mart

Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013) (stating that we will not

assume the role of advocate and make arguments on behalf of a pro se

litigant).

3. Conclusion

Though we decline to address the district court’s ruling on

confession of the motion to dismiss, we affirm based on the district court’s

alternative reliance on timeliness and immunity. The district court

concluded that the claims were untimely and subject to immunity, and Ms.

Smith has not challenged these parts of the ruling.

Entered for the Court

Robert E. Bacharach Circuit Judge

3 We need not address the defendants’ reliance on collateral estoppel. 5