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Defendant's Attorney: Tulsa County District Attorney

Description:

Denver, CO - Criminal defense lawyer represented defendant with an
alleged sexual assault of Ms. Smith when she was an inmate.

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
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).
Appellate Case: 19-6123 Document: 010110290191 Date Filed: 01/17/2020 Page: 2
3
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.
Appellate Case: 19-6123 Document: 010110290191 Date Filed: 01/17/2020 Page: 3
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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.
Appellate Case: 19-6123 Document: 010110290191 Date Filed: 01/17/2020 Page: 4
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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)

Outcome: 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.

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