Webb v. Swensen
663 F. App'x 609
| 10th Cir. | 2016Background
- Plaintiff David Webb, pro se and IFP, alleged racial harassment by two white men in Ogden, Utah; police officers Swensen and Kearl responded after Webb called 911 and did not arrest anyone.
- Webb alleged Officer Swensen made a racially offensive remark and that police favored the white men and investigated Webb for a stalking complaint by a woman (Washington).
- Webb sued under 42 U.S.C. §§ 1983, 1985, 1986, Title VI, the FCA, and various state-law claims; defendants were never served.
- The magistrate judge recommended dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2); the district court adopted the recommendation and denied leave to amend as futile.
- Webb moved to recuse the magistrate judge and sought Rule 54(b) certification; both motions were denied.
- The Tenth Circuit affirmed, reviewing de novo the § 1915 dismissal and abuse-of-discretion for recusal, and found Webb’s pleadings legally insufficient on multiple grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of proposed amended complaint / futility of amendment | Webb: third amended complaint alleges race discrimination and cures defects | District: second amended complaint failed to state a claim; Webb gave no basis showing cure | Affirmed dismissal; leave to amend would be futile because Webb didn’t show how amendments cure defects |
| Title VI and FCA claims | Webb: Title VI and FCA claims arise from racial discrimination and alleged false claims to DOJ | District: Title VI applies to funding recipients, not individuals; FCA allegations conclusory | Title VI claim fails (no entity-level discriminatory acts pled); FCA claim insufficiently pleaded |
| Selective-enforcement / § 1983 racial discrimination | Webb: officers selectively enforced/protected due to race; Swensen’s remark shows discriminatory intent | District: Webb wasn’t stopped/arrested; no similarly situated comparator; facts don’t show discriminatory enforcement | Dismissed: Webb failed to allege similarly situated comparator or discriminatory intent needed for selective-enforcement claim |
| State-law claims (IIED, false arrest/imprisonment, malicious prosecution) | Webb: emotional distress and unlawful arrest/prosecution by defendants | District: Webb alleged no arrest, imprisonment, or factual support for IIED elements | Dismissed: no factual allegations supporting IIED or arrest-based torts |
| Recusal of magistrate judge | Webb: alleged bias/disqualification based on comments, prior actions, law clerk extension, adverse rulings | District: Webb failed to preserve/identify grounds; adverse rulings and clerk actions don’t show bias | Denial of recusal affirmed; no abuse of discretion and judicial displeasure alone insufficient |
| Rule 54(b) certification and interlocutory appeal | Webb: district court should have certified finality under Rule 54(b) | District: prior appeal dismissed for lack of final order; current appeal includes relevant orders | Rule 54(b) issue moot/harmless; appellate jurisdiction proper and affirmation allowed |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleading)
- Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir. 2009) (standard for § 1915(e)(2) dismissals reviewed de novo)
- Brereton v. Bountiful City Corp., 434 F.3d 1213 (10th Cir. 2006) (futility of amendment supports dismissal with prejudice)
- Shotz v. City of Plantation, 344 F.3d 1161 (11th Cir. 2003) (individuals not liable under Title VI)
- Baker v. Bd. of Regents of Kan., 991 F.2d 628 (10th Cir. 1993) (elements of a Title VI claim require a recipient of federal assistance)
- Palma-Salazar v. Davis, 677 F.3d 1031 (10th Cir. 2012) (court may decline to address conclusory statements)
- United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006) (elements required to plead selective enforcement)
- Liteky v. United States, 510 U.S. 540 (expressions of impatience or adverse rulings do not alone establish judicial bias)
- BWP Media USA, Inc. v. Clarity Dig. Grp., LLC, 820 F.3d 1175 (10th Cir. 2016) (appellate briefs must cite record references)
- Rachel v. Troutt, 820 F.3d 390 (10th Cir. 2016) (issues not presented to district court generally cannot be raised on appeal)