Blauch v. City of Westminster, Colorado

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

FOR THE TENTH CIRCUIT June 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOANNA BLAUCH,

Plaintiff - Appellant,

v. No. 20-1430 (D.C. No. 1:20-CV-00431-LTB-GPG) CITY OF WESTMINSTER, COLORADO, (D. Colo.) a home rule municipality; DONALD TRIPP, in his official and individual capacity; HERBERT ATCHISON, in his official and individual capacity; ANITA SEITZ, in her official and individual capacity; DAVID DEMOTT, in his official and individual capacity; KATHRYN SKULLEY, in her official and individual capacity; BRUCE BAKER, in his official and individual capacity; ALBERT GARCIA, in his official and individual capacity; EMMA PINTER, in her official and individual capacity; MARIA DE CAMBRA, in her official and individual capacity; SHANNON BIRD, in her official and individual capacity; MARK BROSTROM, in his official and individual capacity; TIFFANY SORICE, in her individual and official capacity,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT*

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral  _________________________________

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

Joanna Blauch appeals an order dismissing her pro se 42 U.S.C. § 1983 claims

as frivolous or barred by absolute-immunity defenses. For the reasons below, we

affirm.

Blauch’s claims stem from her 2013 arrest for a domestic-violence incident.

The arrest led to Blauch’s criminal convictions for unspecified offenses following a

jury trial prosecuted by Mark Brostrom, a prosecutor for the City of Westminster,

Colorado. Blauch sought postconviction relief in municipal-court proceedings

overseen by Judge Tiffany Sorice, though the result of those proceedings is unclear

from the record. Later, Blauch filed this pro se complaint in federal court alleging

constitutional violations under § 1983 and state-law claims against the City, Sorice,

Brostrom, and ten other City officials. To remedy these violations, Blauch sought

damages and unspecified declaratory and injunctive relief.

The district court granted Blauch’s request to proceed in forma pauperis but

dismissed her claims under 28 U.S.C. § 1915(e)(2)(B)(i) and (iii), determining that

they were frivolous or subject to absolute-immunity defenses.1 It also denied

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 The district court also concluded that the applicable two-year statute of limitations barred some of Blauch’s claims. We need not address this conclusion, however, because (as explained below) the district court properly dismissed all claims on other grounds. 2 Blauch’s request to proceed in forma pauperis on appeal, certifying that any appeal

from the dismissal would not be taken in good faith. See § 1915(a)(3). Blauch

appeals.

On appeal, Blauch challenges several aspects of the district court’s order

dismissing her claims under § 1915(e)(2)(B). That statute requires federal courts to

dismiss in forma pauperis claims if they are frivolous, if they fail to state a claim on

which relief may be granted, or if they seek damages from a defendant who is

immune from such relief. § 1915(e)(2)(B)(i)–(iii). A claim is frivolous if “it lacks an

arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325

(1989). A claim is not frivolous, however, simply because it does not state a claim on

which relief may be granted. See id. at 329–30. Although “[w]e generally review a

district court’s dismissal for frivolousness under § 1915 for abuse of discretion,” our

review is de novo if “the frivolousness determination turns on an issue of law.” Fogle

v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). De novo review likewise applies to

dismissals on absolute-immunity grounds. See Gagan v. Norton, 35 F.3d 1473, 1475

(10th Cir. 1994). Because Blauch proceeds pro se, we liberally construe her

arguments when applying these standards. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). But in doing so, we do not act as her advocate. Id.

Under these standards, Blauch raises no issue requiring reversal. Blauch

largely repeats points she made below, ignoring the district court’s dispositive

reasons for dismissing her claims. Specifically, none of Blauch’s arguments show

that the district court improperly dismissed her complaint under § 1915(e)(2)(B).

3  At the outset, the district court properly dismissed the claims against Sorice

and Brostrom. Both those defendants are entitled to absolute immunity because

Blauch’s claims arise from acts they performed in their judicial or prosecutorial

capacities, respectively. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)

(judicial immunity); id. at 1267 (prosecutorial immunity). Certain exceptions could

overcome these immunity defenses, but Blauch does not allege them here.

Blauch’s § 1983 claims against the other individual defendants also fall short.

As the district court observed, Blauch alleges no specific facts showing how these

officials, a city manager and several city-council members, personally participated in

the alleged constitutional violations at her trial and postconviction proceedings. See

Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). We disagree, however, with

the district court’s view that this conclusion supports dismissal for frivolousness.

Even though these claims ultimately fail because Blauch alleges no facts on a

material element required to obtain relief, they at least invoke a recognized legal

theory and avoid making baseless factual allegations. See Williams, 490 U.S. at 327.

Accordingly, the district court should have dismissed the claims against the

remaining individual defendants under § 1915(e)(2)(B)(ii) for failure to state a

claim—not under § 1915(e)(2)(B)(i) for frivolousness—and we affirm on that

alternative basis. See Johnson v. Raemisch, 763 F. App’x 731, 734–35 (10th Cir.

2019) (unpublished).

That leaves Blauch’s claims against the City. To succeed on those claims,

Blauch had to show that the City created some policy or custom that directly caused

4 her alleged injuries. Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir.

2015). As in the district court, Blauch argues that the City adopted a policy “of

‘lawsuit avoidance’ to ‘stay ahead of the ACLU’ by falsifying and ignoring material

evidence in multiple reported cases.” Aplt. Br. 13 (quoting R. 241). But her argument

faces the same problem on appeal that it faced below: she fails to support the

existence of such a policy with “particular facts” and relies exclusively on

“conclusory allegations.” R. 373. And contrary to Blauch’s view, this failure did not

occur because the magistrate judge excluded “[b]ackground evidence” documenting

examples of other people that the City has mistreated, Aplt. Br. 7; the district court

rightly noted that the examples Blauch points to “do not involve the same type of

conduct allegedly perpetrated against [her],” R. 374. Because Blauch did not allege a

municipal policy that could have caused her injuries, the district court did not err in

dismissing the claims against the City. See Mocek, 813 F.3d at 934 (“Aside from

conclusory statements, no allegations in the complaint give rise to an inference that

the municipality itself established a deliberate policy or custom that caused

[plaintiff’s] injuries.”). But as with the previous set of claims, we note that the

appropriate basis for dismissal was failure to state a claim rather than frivolousness.

See Johnson, 763 F. App’x at 734–35.

None of Blauch’s remaining arguments affect the district court’s dispositive

reasons for dismissing her complaint. Blauch contends that the district court ignored

her objections to factual inaccuracies in the magistrate judge’s recommendations and

distorted facts in its dismissal order. But she does not say what facts the magistrate

5 judge inaccurately described or the district court distorted. And we are not persuaded

by Blauch’s argument that the district court’s legal conclusions “were demonstrably

based on almost entirely distorted facts.” Aplt. Br. 36. As discussed above, our de

novo review of the complaint persuades us that it was subject to dismissal under

§ 1915(e)(2)(B) for substantially the same reasons stated by the district court.

In sum, we affirm the dismissal of Blauch’s § 1983 claims under

§ 1915(e)(2)(B). And because Blauch asserted no other federal claims, we also affirm

the district court’s decision not to exercise supplemental jurisdiction over Blauch’s

state-law claims. See Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998)

(“When all federal claims have been dismissed, the court may, and usually should,

decline to exercise jurisdiction over any remaining state claims.”). As a final matter,

we deny Blauch’s motion to proceed in forma pauperis on appeal because although

the complaint may have raised nonfrivolous claims, Blauch has “failed to show the

existence of a reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal.” Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077,

1079 (10th Cir. 2007) (emphasis added).

Entered for the Court

Nancy L. Moritz Circuit Judge

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