F I L E D United States Court of Appeals Tenth Circuit PUBLISH September 21, 2005 UNITED STATES COURT OF APPEALS Clerk of Court TENTH CIRCUIT
DELMER GARRETT,
Plaintiff - Appellant, v. No. 04-5187 SELBY CONNOR MADDUX & JANER; JERRY MADDUX; TOM JANER; JOE L. WHITE,
Defendants - Appellees,
RICK ESSER, KAREN CARDEN WALSH AND CURTIS DELAPP,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. NO. 04-CV-395 JHP-FHM)
Delmer Garrett, pro se. _____________________
James W. Connor, Jr., Thomas D. Hird, Elizabeth A. Hart, Richards & Connor, Tulsa, Oklahoma, and Joe L. White, Collinsville, Oklahoma, for Defendants- Appellees.
Before HARTZ, McKAY and PORFILIO , Circuit Judges. HARTZ , Circuit Judge.
Pro se Plaintiff Delmer Garrett appeals the dismissal of his claim under the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961,
1962, and 1964, against the law firm of Selby, Conner, Maddux & Janer and
several individual attorneys. We have jurisdiction under 28 U.S.C. § 1291, and
affirm 1.
I. BACKGROUND
A. District Court Proceedings
Plaintiff’s complaint alleged that Defendants violated RICO by “engag[ing]
in various schemes intended to use sham legal process to defraud and extort
money and property from American citizens.” R. Vol. I, doc. 1 at 2-3. To state a
RICO claim, a plaintiff must set forth “four elements: (1) conduct (2) of an
enterprise (3) through a pattern (4) of racketeering activity. A pattern of
racketeering activity must include commission of at least two predicate acts.”
Deck v. Engineered Laminates, 349 F.3d 1253, 1257 (10th Cir. 2003) (internal
quotation marks and citation omitted). The complaint alleged the following
After examining the briefs and appellate record, this panel has determined 1
unanimously that oral argument would not materially assist 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
-2- predicate acts: (1) submitting false evidence in a 1999 Oklahoma court
proceeding in violation of Okla. Stat. Ann. tit. 21, § 451; (2) suborning the
perjury of Carlotta Gordon in violation of Okla. Stat. Ann. tit. 21, § 504; (3)
inducing Carlotta Gordon to commit perjury in violation of Okla. Stat. Ann. tit.
21, § 496; (4) aiding and abetting Carlotta Gordon in using a false instrument
concerning real property, in violation of Okla. Stat. Ann. tit. 21, § 1500; (5)
aiding and abetting Carlotta Gordon in the malicious prosecution of Dwayne
Garrett; (6) preparing and submitting false documents in a bankruptcy court in
Oklahoma; (7) preparing and submitting false and fraudulent documents in a 1994
Oklahoma state district court proceeding; and (8) preparing and submitting false
and fraudulent documents in an Oklahoma Supreme Court proceeding. At the
outset we note that it is doubtful that any of the alleged acts in state court
constitutes a predicate act under RICO. See 18 U.S.C. § 1961 (listing qualifying
predicate acts); Deck, 349 F.3d at 1257 (“[T]ampering with a witness in a state
judicial proceeding . . . is not a RICO predicate act.”).
In any event, Defendants moved to dismiss the case on several grounds,
including: (1) the district court lacked subject-matter jurisdiction; (2) the
complaint failed to state a claim; (3) Plaintiff lacked standing; (4) the action was
vexatious and frivolous; (5) the limitations period had expired; (6) the claims
were barred by issue or claim preclusion; (7) the complaint was actually filed by
-3- Plaintiff’s son, Dwayne Garrett, in violation of filing restrictions; 2 and (8) the
complaint should be dismissed as a sanction for discovery abuses.
The district court summarily granted Defendants’ motions to dismiss.
Plaintiff filed a timely notice of appeal.
B. Proceedings on Appeal
In his opening brief to this court Plaintiff contends that the district court
erred in dismissing his complaint. He asserts that the district court erred (1) in
dismissing the case without allowing Plaintiff to present witnesses and evidence
to a jury; (2) in requiring more from Plaintiff than a short and plain statement of
the claim; (3) in denying Plaintiff the right to submit evidence; (4) in requiring
Plaintiff to engage an attorney; (5) by considering the lawyers’ statements to be
facts; (6) in applying claim preclusion; (7) in not applying the last-act doctrine to
the statute-of-limitations defense; (8) in applying the Rooker/Feldman Doctrine,
see Rooker v. Fidelity Trust, 263 U.S. 413 (1923); D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462 (1983); and (9) in failing to enter a default judgment
against Joe White for failing to answer the complaint. With the exception of the
discussion of the Rooker/Feldman Doctrine, each point is stated in a sentence or
two and is presented without reference to legal authority or supporting facts. The
2 We have previously upheld filing restrictions placed upon Dwayne Garrett by the Northern District of Oklahoma. See Garrett v. Esser, 53 Fed. Appx. 530, 2002 WL 31839853 (10th Cir. 2002) (unpublished).
-4- Rooker/Feldman discussion argues that several exceptions to the doctrine apply,
but Plaintiff fails to explain how his claim fits into any of the exceptions.
The bulk of Plaintiff’s brief is devoted to personal attacks on the district
judge. A few of the more outrageous examples are as follows: “[The judge],
presumed himself to be God Almighty, empowered to do anything he wanted no
matter what any old rule might say.” Aplt. Br. at 3. “[The judge] gave Delmer
Garrett a good screwin’ sooner than later in contempt for every ideal of justice,
fair play, honor, or anything else save for [the judge’s] obsession with hurting
people for money.” Id. “[The judge] is either so dumb he is pathetic or [the
judge] is nothing in the world but an out and out crook.” Id. “[The judge] is
obviously a cry baby who gets willy willy upset when anyone dares to question
whether [the judge] is God or perhaps even higher than God[.]” Id. at 4 “The
American people have had enough of sick jokes like [the judge] screwin’ them out
of money and property and aiding and abetting such heinous acts as wrongful
death.” Id. “To the diseased mind of [the judge], ‘business associates, they don’t
gotta’ answer nothing ‘cuz, we ain’t in no court of law here where some rules
apply; I’m, uh, I’m above God, ’n I make the rules cuz my bar friends need to rob
people to make a livin’ and I like screwin’ people.’” Id. at 6.
Defendants responded by thoroughly briefing the following grounds for
affirmance: (1) the appeal should be dismissed as frivolous, malicious, and
-5- abusive; (2) Plaintiff’s claims are an attempt to circumvent filing restrictions
placed upon Dwayne Garrett; (3) the claim was properly dismissed due to
Plaintiff’s failure to appear for his deposition or otherwise cooperate with
discovery; (4) the claims are barred by issue or claim preclusion; (5) the claims
are barred by the statute of limitations; and (6) the complaint’s allegations are too
conclusory.
In his reply brief Plaintiff repeats verbatim each issue listed in his opening
brief. Following each restatement he adds: “Whereas this court shall notice: no
appellee controverted this point; no appellee made any effort whatsoever to show
this court why Delmer Garrett was wrong on [this] point on appeal. This
confession by appellees alone warrants reversal and remand with instruction to go
forward on Delmer Garrett’s claims.” Aplt. Reply Br. at 2, et seq. Plaintiff’s
only response to Defendants’ grounds for affirmance is as follows:
As appellee’s so-called proposition four and proposition five appear to be a vain attempt to answer Delmer Garrett’s sixth, seventh, and eighth points, Delmer Garrett notices this court that the absolutely venal, chimerical nonsense embodied in the appellees so- called propositions four and proposition five rise to the level of fraud on this court. The putative and implied arguments are three: (1). That Delmer Garrett’s claims are barred by claim preclusion—Truth: claim preclusion requires a trial on the merits. This court shall not notice so much as one prior case where there was ever a due process adjudication of any of the claims, (2). That Delmer Garrett’s claims are time-barred. Truth: this court wants an explanation of how acts beginning October of 2003 and continuing contemporaneously with this appeal can be time-barred. It is also true that the appellees allegation that crimes which are part of the same pattern of
-6- transaction occurrences cannot be considered by the court contravenes United States Supreme Court Doctrine commonly known as the last act doctrine, and (3). That review of state court claims is barred by the Rooker/Feldman doctrine. Truth: The Rooker/Feldman doctrine is inapplicable where the state court actions [were] obtained by fraud.
...
The so-called brief of appellees is overloaded with vile effrontery, worrisome prevarication, and ad hominem attacks, which unlike the commentaries of Delmer Garrett have no basis in fact, and save for the [s]o-called propositions four and five, cannot be lawfully noticed by this court and warrant sanction as a glowing example of violation of every code know[n] to jurisprudence.
Aplt. Reply Br. at 9-10.
II. DISCUSSION
We affirm the judgment below because Plaintiff has forfeited his right to a
review of that decision. His briefs in this court contain no argument of substance,
and the scurrilous tone convinces us to refrain from exercising any discretion we
may have to delve for substance in a pro se pleading.
Plaintiff’s briefs are wholly inadequate to preserve issues for review.
Although “[a] pro se litigant’s pleadings are to be construed liberally and held to
a less stringent standard than formal pleadings drafted by lawyers,” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), “[t]his court has repeatedly
insisted that pro se parties follow the same rules of procedure that govern other
litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal
-7- quotation marks omitted). Thus, although we make some allowances for “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[,]” Hall, 935 F.2d at 1110, the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record. See id. (“[W]e do not believe it is the proper function of the
district court to assume the role of advocate for the pro se litigant.”).
Plaintiff’s briefs do not come close to complying with Federal Rule of
Appellate Procedure 28. Subparagraphs (a)(5)-(9) of the Rule, for example,
require an appellant’s brief to contain “a statement of the issues presented for
review,” “a statement of the case briefly indicating the nature of the case, the
course of proceedings, and the disposition below,” “a statement of facts relevant
to the issues submitted for review with appropriate references to the record,” “a
summary of the argument, which must contain a succinct, clear and accurate
statement of the arguments made in the body of the brief,” and “the argument,
which must contain: appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.”
Under Rule 28, which “applies equally to pro se litigants,” a brief “must contain .
. . more than a generalized assertion of error, with citations to supporting
authority.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). “[W]hen a
-8- pro se litigant fails to comply with that rule, we cannot fill the void by crafting
arguments and performing the necessary legal research.” Id.
Plaintiff has listed several issues for appeal and has subheadings of
“Supporting Facts and Argument,” but his statement in support of each issue
consists of mere conclusory allegations with no citations to the record or any legal
authority for support. “We do not consider merely including an issue within a list
to be adequate briefing.” Utahns for Better Transp. v. United States Dep’t of
Transp., 305 F.3d 1152, 1175 (10th Cir. 2002). “[I]ssues will be deemed waived
if they are not adequately briefed.” Id.
In short, the inadequacies of Plaintiff’s briefs disentitle him to review by
this court. We still may possess discretion to consider his appeal; but any
inclination we might have to explore whether some merit lies beneath his bald
assertions evaporates when we confront his disrespect for the courts.
Plaintiff’s briefs on appeal do little more than attempt to impugn (without
basis) the integrity of the district judge. Such writings are intolerable, and we
will not tolerate them. “Due to the very nature of the court as an institution, it
must and does have an inherent power to impose order, respect, decorum, silence,
and compliance with lawful mandates. This power is organic, without need of a
statute or rule for its definition, and it is necessary to the exercise of all other
powers.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (6th Cir. 1993).
-9- “[I]f the complaint or other pleadings are abusive or contain offensive language,
they may be stricken sua sponte under the inherent powers of the court.” Phillips
v. Carey, 638 F.2d 207, 208 (10th Cir. 1981) (citing Fed. R. Civ. P. 12(f)
(“[U]pon the court’s own initiative at any time, the court may order stricken from
any pleading any insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.”)). In Theriault v. Silber, 579 F.2d 302 (5th Cir. 1978), the
court dismissed an appeal with prejudice because the appellant’s notice of appeal
contained “vile and insulting references to the trial judge.” Although recognizing
the leniency typically given to pro se plaintiffs, the court stated: “This court
simply will not allow liberal pleading rules and pro se practice to be a vehicle for
abusive documents. Our pro se practice is a shield against the technical
requirements of a past age; it is not a sword with which to insult a trial judge.” Id.
at 303. See also Carrigan v. California State Legislature, 263 F.2d 560, 564 (9th
Cir. 1959) (“Perhaps the easiest procedure in this case would be to dismiss the
entire appeal as frivolous, and strike the briefs and pleadings filed by appellant
. . . as either scandalous, impertinent, scurrilous, and/or without relevancy.
Undoubtedly such action would be justified by this Court.”) A like response is
called for in this case.
-10- III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court. We also DENY
Plaintiff’s motion to disqualify all judges of this court.
PORFILIO, Circuit Judge, concurring in result.
-11-