Johnson v. SpencerJohnson v. Spencer
- Reporters:
HOLMES, Circuit Judge.
In 2013, a Wyoming court declared Andrew Johnson actually innocent of crimes for which he was then incarcerated. In 2017, after his release, Mr. Johnson brought suit under
Answering this question requires us to resolve two primary issues. First, in addition to filing the 2017 Action, Mr. Johnson moved the district court under
Second, Cheyenne, the Estate, and Officer Spencer each moved the district court under
In the following discussion, we set forth the background underlying this appeal, address the Rule 60(b) arguments pertinent to the 1991 and 1992 Actions, address the Rule 12(b)(6) arguments pertinent to the 2017 Action, and conclude by briefly addressing an outstanding motion relating to the record on appeal (which we deny as moot).
I. BACKGROUND
A. Factual Background2
Late one night in June 1989, Mr. Johnson ran into a female acquaintance at a bar in Cheyenne and returned with her to the apartment that she shared with her boyfriend, who was away at the time. They drank wine and smoked marijuana in her living room, and Mr. Johnson used his driver‘s license and picture I.D., which were enclosed in a clear plastic sleeve, to separate marijuana leaves from their stems and seeds for the joints that they smoked. Mr. Johnson and his female acquaintance then left her apartment in her car and visited multiple bars in downtown Cheyenne. Mr. Johnson, however, forgot his license and picture I.D. on the coffee table in his acquaintance‘s living room.
The acquaintance eventually became sick and vomited in her car while Mr. Johnson was driving them to an after-hours club. When Mr. Johnson went inside the club to get some paper towels to clean up her vomit, the acquaintance climbed into the driver‘s seat and drove herself home. Mr. Johnson returned to find that his acquaintance and her car were gone. He then walked to his home, thirty-five minutes away, and went to sleep.
Later that night, from around 3:00 a.m. to 3:10 a.m., the acquaintance‘s downstairs neighbor heard aggressively loud, periodic knocking on the door to the stairs leading to the acquaintance‘s upstairs apartment. Eventually, she heard the door‘s glass window pane shatter, followed by footsteps crossing the broken glass and walking upstairs to the acquaintance‘s apartment. The neighbor heard the intruder walking around the acquaintance‘s apartment and
When Officer Spencer and Officer Phillip Raybuck of the Cheyenne Police Department arrived about a minute later, they found the acquaintance whimpering hysterically in her bathroom with the door ajar. The rest of the apartment was dark. Officer Spencer later testified at trial that, when they asked the acquaintance to come out of the bathroom, she screamed at them, and it took him a moment to realize that she was repeatedly asking, “Is he still here?” The officers searched her apartment and found no one else. They told her that they were the only ones there and she could open the bathroom door. Officer Spencer testified that the acquaintance opened the door some more—revealing that her hair was mussed, her eyes were wet and red, and her robe was half undone—and she repeatedly said, “He hurt me.”
According to Mr. Johnson, Officer Spencer must have taken his driver‘s license and picture I.D. off of the coffee table in the living room and, upon being told by the acquaintance that a man had “hurt” her, showed them to her, “prompting” her “to affirmatively assert Mr. Johnson was that man.” Officer Spencer testified that it took him a while to understand what Mr. Johnson allegedly did to the acquaintance because she was still choked up and crying, but that she ultimately led him to believe that Mr. Johnson had sexually assaulted her.
Officer Spencer took the acquaintance to a local hospital where she was medically examined and had a sexual-assault kit performed, resulting in the discovery of seminal fluid. Officer Raybuck then went through the acquaintance‘s apartment taking photographs of the crime scene. Some of these photographs were provided to Mr. Johnson‘s trial counsel, but others were not.
Later that morning, Mr. Johnson was awakened by a police officer knocking on his front door. The officer asked him if he had any knowledge about a burglary and sexual assault that had happened during the night. Mr. Johnson denied having any knowledge of the crimes. The officer then arrested him and took him to jail.
Detective Stanford investigated the acquaintance‘s sexual-assault allegation. He took biological samples from Mr. Johnson pursuant to a warrant and interviewed the acquaintance at least three times. At trial, he testified that the acquaintance called him two days after the sexual assault and told him that she had found Mr. Johnson‘s eyeglasses in her bedroom—the same eyeglasses, she said, that he had worn at the bars they went to after leaving her apartment on the night she was assaulted. Mr. Johnson claims that his glasses must have been “planted” in the bedroom “by or on behalf of” the acquaintance.
At trial, the acquaintance testified that Mr. Johnson broke into her apartment and raped her. She also testified that Mr. Johnson had his I.D. card when they went barhopping after leaving her apartment because he produced his card to enter one of the bars. The prosecution, as mentioned, introduced testimony from Officer Spencer and Detective Stanford about the driver‘s license, picture I.D., and eyeglasses that were found in the apartment. An expert witness for the prosecution testified that, based on forensic testing, Mr. Johnson was “among the five percent [of the population] who could have left the seminal fluid” recovered by the acquaintance‘s sexual-assault
Mr. Johnson remained imprisoned for twenty-four years. Then, in August 2013, he was declared actually innocent by a Wyoming court after improved DNA testing revealed that the seminal fluid samples in the acquaintance‘s sexual-assault kit did not match his DNA but, rather, the DNA of the acquaintance‘s then-boyfriend. According to Mr. Johnson, the Cheyenne Police Department should not have believed the acquaintance and her boyfriend when they told the police that the boyfriend was out of town for work on the night she was sexually assaulted.
B. Procedural Background
1. The 1991 Action
While incarcerated, Mr. Johnson filed at least two federal civil-rights actions in Wyoming federal district court against those he claimed were responsible for his conviction. The first of these actions was a suit he filed in forma pauperis in 1991 against the City of Cheyenne and Detective Stanford, among other parties. Within seven days of the filing of his original complaint, Mr. Johnson also filed a demand for a jury trial. He then amended his complaint, alleging, inter alia, that Cheyenne had failed to train its officers in proper methods of investigation and that Detective Stanford had violated his constitutional rights during the investigation by, for example, the manner in which the detective interrogated him.
About a month after the defendants answered his amended complaint, Mr. Johnson requested a hearing on the complaint and a jury trial. The district court granted him an evidentiary hearing, but denied him a jury trial. At the hearing, Mr. Johnson objected to the court‘s denial of a jury trial, but his objection was overruled. Near the end of the hearing, the defendants argued that the case was ripe for summary judgment, and the district court responded that they could move for it. The district court also ordered the parties to submit proposed findings of fact and conclusions of law. But before the district court entered any findings or conclusions, the case was transferred to another district judge, who, in turn, referred the case to a magistrate judge for a new evidentiary hearing. Mr. Johnson, however, did not object to the new hearing. And it appears that he did not renew his request for a jury trial before the new district judge.
At the beginning of the new evidentiary hearing, the magistrate judge denied the defendants’ motions for summary judgment, which they had filed after the first evidentiary hearing, because there were genuine disputes of material fact. The magistrate judge indicated that he would be making the relevant findings of fact based on the evidence proffered at the hearing, and Mr. Johnson, again, did not object. The magistrate judge then conducted a bench trial and issued Findings of Fact and Recommendations, advising in the end “[t]hat [Mr. Johnson‘s] complaint be denied with prejudice.” Aplt.‘s App., Vol. IV, at 834 (Findings of Fact and Recommendations on Evidentiary Hr‘g, filed Oct. 2, 1992); see id., Vol. V, at 1170 (Tr. of Evidentiary Hr‘g Proceedings, dated Aug. 11, 1992) (the magistrate judge explaining to the parties that “[t]his is a trial“). Mr. Johnson filed objections to the magistrate judge‘s report. The district court overruled his objections and adopted the magistrate judge‘s recommendations, dismissing Mr. Johnson‘s claims with prejudice.
Mr. Johnson appealed, and a panel of our court entered an order and judgment
2. The 1992 Action
While his 1991 Action was pending, Mr. Johnson filed another federal civil-rights action—this time a
Before Officer Spencer filed any responsive document, the district court entered an order sua sponte dismissing the complaint with prejudice as frivolous. The court noted that in the 1991 Action it had “concluded there were no facts justifying the plaintiff‘s claims that his constitutional rights were violated” with respect to the trial evidence about his eyeglasses, and that “[t]he present complaint [wa]s simply another attempt by [him] to revisit the same claim that ha[d] previously been dismissed.” Id. at 1257–58 (Order Dismissing Civil Rights Pet., filed July 20, 1993). The court reviewed the exhibits submitted with the complaint and determined that they did not “establish[] even the slightest indication that [Officer Spencer had] made false, or inconsistent[,] statements at the trial.” Id. at 1258. The court held that “Plaintiff ha[d] made no new argument in his complaint and [that the] complaint [wa]s frivolous and completely devoid of merit.” Id. (citing
On appeal, we affirmed, noting that the district court had “dismiss[ed] the action as factually frivolous under
3. The 2017 Action
After he was exonerated, Mr. Johnson filed a third federal civil-rights action, i.e., the 2017 Action under
In May 2017, Cheyenne and Officer Spencer separately moved to dismiss the complaint, arguing, inter alia, that the claims against them were precluded by the judgments in the 1991 and 1992 Actions, respectively. The Estate later filed its own motion to dismiss, raising, inter alia, claim preclusion with respect to the 1991 Action. The defendants each attached records from the prior proceedings to their motions.
In July 2017, the district court granted all three motions to dismiss. Johnson v. City of Cheyenne, No. 2:17-CV-00074-SWS, 2017 WL 6551394, at *9 (D. Wyo. July 27, 2017). “Although Defendants . . . raised several bases for dismissal of Plaintiff‘s claims against them,” the district court concluded that “res judicata, or claim preclusion, bar[red] Plaintiff‘s . . . action and [wa]s therefore dispositive of Defendants’ motions to dismiss.” Id. at *5. In particular, the district court concluded that both the 1991 and 1992 Actions had resulted in final judgments on the merits against Mr. Johnson, had been between the same parties as the 2017 Action, and had concerned the same transaction as the 2017 Action. The district court rejected Mr. Johnson‘s argument that Heck v. Humphrey, 512 U.S. 477 (1994)—which held that prisoners may not bring a
4. Mr. Johnson‘s Motions for Relief from All Three Judgments
On August 1, 2017, Mr. Johnson filed in the district-court dockets for his 1991, 1992, and 2017 Actions identical motions to set aside the judgments in those three cases pursuant to Rule 60. Later that month, he also filed a motion to alter or amend the judgment in the 2017 Action under Rule 59. The district court denied all of the motions. Johnson v. City of Cheyenne, No. 2:17-CV-00074-SWS, 2017 WL 6551397 (D. Wyo. Nov. 21, 2017); Johnson v. City of Cheyenne, Nos. 2:17-CV-00074-SWS, 2:91-CV-00129-SWS & 2:92-CV-00183-SWS, 2017 WL 6551395 (D. Wyo. Nov. 14, 2017). In its orders denying the motions, the district court rejected Mr. Johnson‘s arguments that the judgments in the 1991 and 1992 Actions were void or should otherwise be set aside, see 2017 WL 6551395, at *5–8, as well as his additional arguments against the application of claim preclusion, see 2017 WL 6551397, at *4–5.
Mr. Johnson timely appealed from the dismissal of his 2017 Action and the denial of his motions in all three actions for post-judgment relief. He notified the district court of the materials he thought the clerk of court should forward to us as the record on appeal. The defendants objected to the inclusion of some of the materials on the ground that the district court had not considered them in reaching its rulings. The district court agreed that Mr. Johnson had included in his notice “various documents and transcripts” from his 1991 and 1992 Actions that were still in storage at the Federal Records Center and the National Archives and, thus, “were not presented to or considered by [the court] in making its
II. DISCUSSION
The central question in this appeal is whether the judgments in the prior litigation concerning Mr. Johnson‘s conviction—i.e., the judgments in the 1991 and 1992 Actions—prevent him from bringing a new lawsuit—i.e., the 2017 Action—against the same defendants after his exoneration. The answer turns on the doctrine of claim preclusion.3 Claim preclusion “prevent[s] a party from litigating a legal claim that was or could have been the subject of a previously issued final judgment.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (quoting MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005)). For claim preclusion to apply, “three elements must exist: (1) a [final] judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits.” Id. (alteration in original) (quoting King v. Union Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997)). “[E]ven if these three elements are satisfied, there is an exception to the application of claim preclusion where the party resisting it did not have a ‘full and fair opportunity to litigate’ the claim in the prior action.” Id. (quoting MACTEC, 427 F.3d at 831 & n.6).
In Part A, we discuss Mr. Johnson‘s attempt to set aside the judgments in his 1991 and 1992 Actions under
Because the judgments in the 1991 and 1992 Actions are not disturbed by our Rule 60(b)(6) ruling and, thus, remain in effect, we address in Part B whether those judgments have claim-preclusive effect on the 2017 Action. We conclude that the judgment in the 1991 Action—in which Detective Stanford and Cheyenne were defendants—has claim-preclusive effect. But we conclude that the judgment in the 1992 Action—in which Officer Spencer was the defendant—does not have claim-preclusive effect because that case was not decided “on the merits.” We, thus, do the following: (1) reverse the district court‘s order granting Officer Spencer‘s
In Part C, we address Mr. Johnson‘s outstanding motion to supplement the record on appeal. We conclude that the motion is moot in light of the district court‘s order allowing Mr. Johnson to include the relevant documents in the record.
A. Mr. Johnson‘s Rule 60(b) Motions in the 1991 and 1992 Actions
We now examine whether the district court erred in doing so. Because relief
under
1. Rule 60(b)(4)
”
Here, Mr. Johnson makes both jurisdictional and due-process arguments for relief. Thus, in reviewing the district court‘s denial of
a. The district court properly rejected Mr. Johnson‘s Rule 60(b)(4) motions because, inter alia, the court had an “arguable basis” to exercise jurisdiction in the 1991 and 1992 Actions.
Mr. Johnson argues that both the 1991 and 1992 Actions were premised on jurisdictional errors. More specifically, he argues that Heck v. Humphrey, which the Supreme Court decided in 1994 after the district court entered judgment in both the 1991 and 1992 Actions, demonstrates that the district court had no jurisdiction to enter those judgments. He says that we should now recognize that the judgments were void ab initio. This argument relies on multiple shaky premises. And we conclude, among other things, that the district court had at least an “arguable basis” to exercise jurisdiction over both actions. See Espinosa, 559 U.S. at 271. We, thus, agree with the district court‘s rejection of Mr. Johnson‘s jurisdictional arguments for
In Heck, the Supreme Court held that
We must first determine whether Heck and its interpretation of
The claim-preclusion consequences of a final judgment are, in other words, not “altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.” Federated Dep‘t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); see also Aaron-Andrew P. Bruhl, Deciding When to Decide: How Appellate Procedure Distributes the Costs of Legal Change, 96 Cornell L. Rev. 203, 211–12 (2011) (“A final judgment is no less final because it is wrong, whether it was always wrong or just newly wrong. Although Rule 60 of the Federal Rules of Civil Procedure permits reopening of final judgments in certain circumstances, the mere incorrectness of a prior judgment in light of new legal developments is ordinarily not enough.“). So even though Heck changed our understanding of which claims are cognizable under
Reasoning that the judgment in the 1992 Action was still “open on direct review”5
“Federal courts considering
In the 1992 Action—as in the 1991 Action—the district court had at least an “arguable basis” for jurisdiction for two main reasons. First, it is arguable whether Heck‘s limitation on
Second, even if Heck were jurisdictional, the district court at most would have erred in discerning the applicability of its jurisdictional requirement to Mr. Johnson‘s
In sum, because the judgment in the 1991 Action was final by the time that Heck was decided, nothing about Heck‘s changed understanding of
b. Mr. Johnson waived his argument that the 1991 Action is void because of a due-process violation
Mr. Johnson also argues that the judgment in the 1991 Action is void because it is based on a violation of due process.6 In particular, he argues that the adjudication of the 1991 Action denied him his right to a jury trial. Even assuming that such a due-process argument is cognizable under
As summarized above, Mr. Johnson requested a jury trial in the 1991 Action, but his request was denied. Mr. Johnson appealed from the resulting judgment, but did not contest the procedure the district court had used in reaching it, see Johnson I, 1993 WL 335802, at *1 n.4 (“None of the parties objected to the procedure followed, and it is not raised as an issue on appeal.“), and we affirmed the dismissal. Mr. Johnson now argues that the procedure the district court used in the 1991 Action violated his due-process rights. We conclude, however, that his failure to present
The Supreme Court has recognized that even “[t]he most basic rights . . . [are] subject to waiver.” Peretz v. United States, 501 U.S. 923, 936 (1991). Here, Mr. Johnson litigated his due-process concerns before the district court in the 1991 Action but—be it through strategy or neglect—failed to raise them on appeal. Because he failed to do so, any subsequent arguments that he advances based on those concerns are properly deemed waived. See United States v. Gama-Bastidas, 222 F.3d 779, 784 (10th Cir. 2000) (noting that “[o]rdinarily, we will not review in a second direct appeal an issue that underlies a previously affirmed conviction” and that this “general rule” is based in part on the law-of-the-case doctrine under which “findings made at one point during litigation become law of the case for subsequent stages of that same litigation” (quoting United States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996))); see also United States v. Sacko, 247 F.3d 21, 24 (1st Cir. 2001) (ruling that, although the defendant “had every incentive to do so, [he] failed to present [an] argument in his first appeal” and, thus, “cannot raise it here for the first time” because “he may not revive in the second round an issue he allowed to die in the first” (quoting United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999))); United States v. Russ, 861 F.2d 184, 185 (8th Cir. 1988) (per curiam) (noting that “[t]he parties frame their arguments in terms of the proper application of the law-of-the-case doctrine,” and holding that the appellant “should have raised th[e] issue [of the amount of the deficiency judgment] in his appeal from the initial district court order finding him liable for the amount stated in the complaint, and his failure to do so precludes further consideration of this claim“); Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987) (“Under law of the case doctrine, a legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time. The doctrine encompasses a court‘s explicit decisions, as well as those issues decided by necessary implication.” (citations omitted)).
Mr. Johnson‘s waiver of his due-process concerns about the 1991 Action precludes him from receiving
We, thus, conclude that Mr. Johnson‘s failure to raise his objections to the district court‘s bench-trial procedure in the 1991 Action on direct appeal resulted in waiver of his present argument that the resulting judgment is void under
***
We recognize that some of the appellees argue that this should mark the end of our Rule 60 analysis. They contend that because “the provisions of Rule 60 are mutually exclusive” and Mr. Johnson‘s arguments under
To be sure, there is authority for the proposition that “clause (6) and clauses (1) through (5) are mutually exclusive.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988); see O‘Dell v. Sun Ref. & Mktg. Co., No. 99-5048, 2000 WL 339181, at *5 (10th Cir. Mar. 31, 2000) (unpublished) (“Relief under 60(b)(6) is only appropriate when none of the first five clauses of the rule are applicable.“). And we have said that “[a]
2. Rule 60(b)(6)
Mr. Johnson argues that the district court made several legal errors in denying him
a. Standards Governing Rule 60(b)(6) Relief
“We review the district court‘s decision to deny a
We focus our analysis on two salient legal errors Mr. Johnson has identified in the district court‘s
b. Rule 60(b)(6) relief extends to all civil actions generally.
The district court abused its discretion by denying Mr. Johnson‘s motions for
In support of his argument before the district court for
Habeas corpus proceedings are equitable in nature, while
§ 1983 claims for damages are inherently not. Thus, while it may be appropriate for a court in equity to avoid res judicata to do justice, such arguments are unavailing in the§ 1983 context.
Aplt.‘s App., Vol. III, at 646 (Order Den. Pl.‘s Rule 60 Mots., filed Nov. 14, 2017) (citations omitted). On appeal, Mr. Johnson argues that this is an erroneous view of
Neither the Federal Rules of Civil Procedure, nor our cases, recognize the district court‘s proffered law-equity distinction. The language of
And so it is unsurprising that our cases demonstrate that
c. Plaintiffs are not barred from Rule 60(b)(6) relief simply because they filed the lawsuit.
The district court‘s erroneous law-equity distinction was but one rationale supporting its denial of
We do not believe that the mere act of having brought the lawsuit is the sort of free, calculated, and deliberate choice that precludes
The sort of “free, calculated, and deliberate choices” that may undermine a party‘s request for
d. Remaining Arguments
Mr. Johnson points to other purported errors in the district court‘s denial of
to relief. Concluding, as we do, that this categorical rule does not apply in the circumstances of this case, we vacate the orders appealed from and remand for further proceedings consistent with this opinion. We take no view of the appropriate outcome.“). Based on the two salient legal errors discussed herein, we vacate the district court‘s orders denying
* * *
In sum, we affirm the district court‘s orders denying
B. The Defendants’ Rule 12(b)(6) Motions in the 2017 Action
In the following discussion, we address (1) our standard of review, (2) the general framework governing claim-preclusion, and (3) how that law applies to the 1991 and 1992 Actions. We conclude that the district court correctly held that the 1991 Action has claim-preclusive effect on the 2017 Action, but erred in holding that the 1992 Action has such effect. We, thus, affirm in part and reverse in part.
1. Standard of Review
Generally, “[w]e review de novo the district court‘s grant of the [defendants‘] motion to dismiss on . . . claim preclusion grounds.” Campbell v. City of Spencer, 777 F.3d 1073, 1077 (10th Cir. 2014). While this much is undisputed, Mr. Johnson argues that the district court erroneously converted the motions to dismiss into motions for summary judgment by considering its prior records as part of its claim-preclusion analysis. We consider this argument at the outset because it could impact the scope and substance of our claim-preclusion analysis. We conclude, however, that the district court could consider its prior records without converting the motions into ones for summary judgment.
Additionally, we independently address certain preservation issues latent in Mr. Johnson‘s appellate argument. Although Mr. Johnson forfeited his two main challenges to the district court‘s
a. Consideration of Prior Court Records
“If, on a motion under
The overarching concern with taking notice of judicial records for “the truth of the matter asserted” is the improper admission of hearsay. See
It, thus, is unremarkable that courts frequently take judicial notice of prior judicial acts found in records and files when evaluating the merits of a purported claim-preclusion defense. See, e.g., St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“The doctrine of judicial notice has been utilized, [s]ua sponte, when the defending party‘s motion for summary judgment is predicated on affirmative defenses such as [r]es judicata or collateral estoppel, as in the case at bar.“); 21B Wright et al., supra, § 5106.4 (“The best-known example [of courts properly noticing their prior judicial acts] is the use of judicial records in ruling on a claim that the present case is barred or controlled by res judicata . . . .” (footnote omitted)).
Importantly, we and other courts have done so without transforming a defendant‘s motion to dismiss into a motion for summary judgment. See Campbell, 777 F.3d at 1080–82 (affirming the dismissal at the pleadings stage of a § 1983 claim on claim-preclusion grounds after reviewing proceedings from an earlier adjudication and determining that the plaintiff could have raised her constitutional claims in that adjudication, but did not do so); Morgan v. City of Rawlins, 792 F.2d 975, 979 (10th Cir. 1986) (reversing the
To be sure, the district court—in reviewing the complaint in the 2017 Action—could not supplement the allegations in that complaint with, say, testimony that a witness had provided in the 1991 Action. But, for example, it was entirely proper for the district court to review its records to determine whether it had previously dismissed a claim as frivolous or on the merits. This is because the latter use of judicial notice only takes notice of judicial acts. Here, the district court relied on its records to determine what judicial acts it had taken in the 1991 and 1992 Actions, e.g., whether there was a trial on the merits, whether it had ruled on any objections to the procedures used, and what statutory provision it relied on in dismissing one of those lawsuits. This use of judicial notice accords with our practice in cases like Campbell, 777 F.3d at 1080–82, and does not run afoul of the restriction against taking judicial notice of court records for the truth of the matters they assert, cf. Estate of Lockett ex rel. Lockett v. Fallin, 841 F.3d 1098, 1111 (10th Cir. 2016) (“On a
We, thus, reject Mr. Johnson‘s argument that the district court was required to convert the motions to dismiss into motions for summary judgment.
b. Preservation Issues
Mr. Johnson‘s two main arguments on appeal for why the district court
We nonetheless exercise our discretion to review these forfeited arguments de novo. See Cox v. Glanz, 800 F.3d 1231, 1244 (10th Cir. 2015) (“[T]he decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary.” (quoting Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013))). Officer Spencer and the Estate both forfeited the issue of Mr. Johnson‘s own forfeiture by failing to argue his lack of preservation in their appellate briefing. See United States v. Rodebaugh, 798 F.3d 1281, 1314 (10th Cir. 2015) (noting that “even if the government had somehow waived or forfeited Mr. Rodebaugh‘s forfeiture, we would be left with dueling ‘waivers/forfeitures,‘” requiring us “to decide whose waiver/forfeiture to overlook“); Cook v. Rockwell Int‘l Corp., 618 F.3d 1127, 1138–39 (10th Cir. 2010) (engaging in de novo review where the appellees “themselves failed to adequately present any . . . forfeiture argument in their appellate brief” and thereby “forfeited any forfeiture argument they may have on this issue“); see also Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013) (“This is not to suggest that we cannot take notice on our own of a forfeiture not timely raised by the opposing party, only that nothing compels that course in this case.“). And, although Cheyenne obliquely invokes the plain-error standard in disputing certain of Mr. Johnson‘s arguments, we decline to apply that rigorous standard—insofar as Mr. Johnson‘s two primary
With our de novo standard of review thus settled, we now turn to the legal principles governing the district court‘s adjudication of the claim-preclusion defenses.
2. Background Principles of Claim Preclusion
Before proceeding further into our de novo review, we pause to frame the applicable claim-preclusion doctrine. “The principle underlying the rule of claim preclusion is that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not have another chance to do so.” Lenox MacLaren Surgical, 847 F.3d at 1239 (quoting Stone v. Dep‘t of Aviation, 453 F.3d 1271, 1275 (10th Cir. 2006)). “The preclusive effect of a federal-court judgment is determined by federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008). We require defendants to prove three elements to prevail on this defense: “(1) a [final] judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits.” Lenox MacLaren Surgical, 847 F.3d at 1239 (quoting King, 117 F.3d at 445). “In addition, even if these three elements are satisfied, there is an exception to the application of claim preclusion where the party resisting it did not have a ‘full and fair opportunity to litigate’ the claim in the prior action.” Id. (quoting MACTEC, 427 F.3d at 831 & n.6); see Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481 n.22 (1982) (“While our previous expressions of the requirement of a full and fair opportunity to litigate have been in the context of collateral estoppel or issue preclusion, it is clear from what follows that invocation of res judicata or claim preclusion is subject to the same limitation.” (emphasis added)).
Although we have at times “characterized the ‘full and fair opportunity to litigate’ as a fourth requirement of res judicata,” we have since clarified that “the absence of a full and fair opportunity to litigate is more appropriately treated as an exception to the application of claim preclusion when the three referenced requirements are met.” MACTEC, 427 F.3d at 831 n.6; accord Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir. 1999) (citing Kremer, 456 U.S. at 481 n.22, for the proposition that this opportunity to litigate is a “limitation” on the application of claim preclusion).
In this case, Mr. Johnson concedes that the district court correctly ruled that the second and third elements of claim preclusion are satisfied here. See Aplt.‘s Reply Br. at 7 n.2 (declining to “dispute that the same parties and transaction elements are satisfied“). Thus, the judgments in the 1991 and 1992 Actions will have claim-preclusive effect against Mr. Johnson so long as they were “on the merits” and he had a “full and fair opportunity to litigate.” Although Mr. Johnson argues that the 1992 Action did not provide him with a “full and fair opportunity to litigate,” we do not address the merits of that argument because, as explicated below, we agree with his contention that the district court erred in holding that the judgment in that action was “on the merits.” The 1992 Action, accordingly, should not have been given claim-preclusive effect. As for the 1991 Action, Mr. Johnson does not argue that the district court erred in concluding that it had entered a judgment “on the merits.” Consequently, we take up below solely the question of whether Mr. Johnson had a “full and fair opportunity to litigate” his claims in the 1991 Action. See Nixon, 784 F.3d at 1366 (stating that an
3. Application
In the following discussion, as indicated, we focus on whether the 1991 Action provided Mr. Johnson with a “full and fair opportunity to litigate” and whether the 1992 Action was adjudicated “on the merits.” As to the 1991 Action, we conclude that Mr. Johnson had a “full and fair opportunity to litigate” his claims because the decision to conduct a bench trial that ostensibly deprived him of that opportunity presented a procedural issue that he had a full and fair opportunity to litigate before the district court, but then waived on appeal, even though he could have fully and fairly litigated it there as well. As to the 1992 Action, in contrast, we conclude that Mr. Johnson correctly contends that the action was not adjudicated “on the merits” because the district court expressly dismissed it as frivolous under the then-applicable
a. The 1991 Action is entitled to claim-preclusive effect.
The parties dispute whether the 1991 Action is entitled to claim-preclusive effect and, more specifically, whether it constituted a “full and fair opportunity to litigate.” Mr. Johnson also argues that, even if the 1991 Action might give rise to claim preclusion, Cheyenne and the Estate have failed to muster legally sufficient proof to establish this.11 We reject both arguments and, thus, uphold the district court‘s dismissal of the claims against Cheyenne and the Estate, i.e., the parties to the 1991 Action.12
i. The “Full and Fair Opportunity to Litigate” Requirement
The “full and fair opportunity to litigate” inquiry is a “narrow exception” that “applies only where the requirements of due process were not afforded—where a party shows ‘a deficiency that would undermine the fundamental fairness of the original proceedings.‘” Lenox MacLaren Surgical, 847 F.3d at 1243 (citation omitted) (citing Crocog Co. v. Reeves, 992 F.2d 267, 270 (10th Cir. 1993); then quoting Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997)). “The fairness of the prior proceeding ‘is determined by examining any procedural limitations, the party‘s incentive to fully litigate the claim, and whether effective litigation was limited by the nature or relationship of the parties.‘” Id. (quoting Nwosun, 124 F.3d at 1257–58). Here, Mr. Johnson argues, as he did in support of his request for
As we mentioned, the procedural limitation at issue here—i.e., the denial of a jury trial—is a matter that Mr. Johnson fully litigated before the district court in the 1991 Action and could have fully challenged on appeal, but failed to do. More specifically, after the district court denied Mr. Johnson‘s motion for a jury trial and started to conduct an evidentiary hearing on his complaint instead, Mr. Johnson objected to that procedure in court. The district court overruled the objection. After his case was assigned to a new district judge, that judge entered judgment for the defendants following a bench trial held about 10 months after the evidentiary hearing. Mr. Johnson appealed from the district court‘s judgment. Although he could have challenged the process that the district court afforded him, he failed to do so. See Johnson I, 1993 WL 335802, at *1 n.4 (“None of the parties objected to the procedure followed, and it is not raised as an issue on appeal.“). The judgment in the 1991 Action then became final; any procedural challenges Mr. Johnson could have raised against it were waived by his failure to present them on appeal. See, e.g., Sacko, 247 F.3d at 24; Gama-Bastidas, 222 F.3d at 784.
As the governing authorities make clear, it is enough for full-and-fair-opportunity-to-litigate purposes that the litigant had a full and fair opportunity to contest the procedural obstacle that ostensibly barred meaningful consideration of his claims. Mr. Johnson had that opportunity here. In this regard, our decision in Hanley v. Four Corners Vacation Properties, Inc., is instructive. See 480 F.2d 536 (10th Cir. 1973). In Hanley, the plaintiffs-appellants argued that a prior state judgment “was void and subject to collateral attack because of the lack of service of process.” Id. at 538 (applying federal due-process principles to analyze the claim-preclusive effect of a Colorado judgment). The defendants-appellees defended the prior judgment on the ground that “the due process issue [pertaining to the alleged defect in service of process] was fully litigated [previously] in [state court,] culminating in a judgment” against the plaintiffs-appellants. Id. at 537. The district court “sustained the defense,” holding that the prior judgment should be accorded claim-preclusive effect. Id. We affirmed, stating that “[i]t is . . . well settled that where the issue of due process has been litigated and a final judgment entered, the determination of that issue, right or wrong, is res judicata.” Id. at 538. In reaching that holding, we reasoned that the plaintiffs-appellants’ due-process concerns were litigated in state court, where “[a]n adequate remedy was available through the state appellate process.” Id. And we concluded that the plaintiffs-appellants “have had their day in court on these issues and a final judgment entered thereon. They cannot relitigate them in federal court.” Id.
As in Hanley, so too here. Mr. Johnson had a full and fair opportunity to litigate the alleged procedural limitation—i.e., the denial of a jury trial—before the district court in the 1991 Action, and, after the court entered judgment, he had a full and fair opportunity to challenge the court‘s procedures on appeal before that judgment became final. The fact that he did not present a procedural challenge on appeal does nothing to diminish the opportunity that he had to do so; he simply lost his chance. Like the plaintiffs-appellants in Hanley, Mr. Johnson “had [his] day in court on th[is] issue[] and a final judgment entered thereon.” Id. The district court, therefore, properly determined that he
Moreover, other authorities—within and without our circuit—accord with this conclusion. See In re Griego, 64 F.3d 580, 584–85 (10th Cir. 1995) (relying on Hanley in rejecting, on claim-preclusion grounds, a party‘s “argu[ment] that res judicata should not apply because her attorneys’ negligence [had] denied her an opportunity to be heard before entry of” a prior judgment, reasoning that the party had litigated “the issue of her attorneys’ negligence in her motion for relief from [the] judgment and reconsideration” and that the state trial and appellate courts had “considered and rejected this issue,” precluding it from being “relitigated“); 18 Wright et al., supra, § 4415 (“[I]t is only in special circumstances, in which the denial of due process could not reasonably be rectified in the first action, that an exception should be made to claim preclusion.” (emphasis added)); cf. Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1297 (10th Cir. 2014) (“We have found a party ‘cannot now complain that it did not have a full and fair opportunity to litigate the issue [when] [i]t asked the [prior] court to decide the issue in its brief, and it argued its position extensively’ in the prior proceeding.” (alterations in original) (quoting Murdock v. Ute Indian Tribe of Uintah & Ouray Reservation, 975 F.2d 683, 690 (10th Cir. 1992)) (addressing issue preclusion)).13
In sum, it is clear to us that Mr. Johnson cannot escape from the claim-preclusive effect of the 1991 Action based on a procedural argument that was previously litigated and adjudicated in that action and that he had an opportunity to appeal before that judgment became final. Consequently, we reject Mr. Johnson‘s contention that the 1991 Action did not provide him with a “full and fair opportunity to litigate.”
ii. Cheyenne and the Estate carried their burden on the claim-preclusion defense.
Mr. Johnson also contends that, even if the 1991 Action could give rise to claim preclusion, Cheyenne and the Estate have failed to muster legally sufficient proof to establish this. We reject this argument.
Mr. Johnson argues that “even if the 1991 . . . Action[] could give rise to claim preclusion, appellees failed to prove claim preclusion [in their Rule] 12(b)(6) motions.” Aplt.‘s Opening Br. at 34 (capitalization and bolding omitted). As a threshold matter, we note that much of this argument appears based on the fact that the district court relied on facts not included in the complaint, but we have already explained that the district court‘s judicial notice of its own records was permissible. Further, because Mr. Johnson is only challenging
That said, we recognize that Mr. Johnson‘s argument appears to grow out of the lack of clarity in our earlier cases about whether the full-and-fair-opportunity-to-litigate factor should be classified as an “element[]” of, or an “exception” to, claim preclusion; we have clarified that it is the latter. See MACTEC, 427 F.3d at 831 & n.6. Mr. Johnson, however, effectively rejects this clarification and suggests that the district court did not properly allocate the burden of proof—specifically, the burden of persuasion—on Cheyenne and the Estate with respect to the fair-and-full-opportunity-to-litigate factor. See Aplt.‘s Opening Br. at 35 (contending that “[t]here are no recognized exceptions” to claim preclusion and that the district court “failed to impose the correct 12(b)(6) burdens“).
It is beyond cavil that claim preclusion is an affirmative defense, as to which
the defendant bears the burden of proof. See, e.g., Taylor, 553 U.S. at 907 (“Claim preclusion, like issue preclusion, is an affirmative defense.“); Pelt v. Utah, 539 F.3d 1271, 1283 (10th Cir. 2008) (“Generally, claim preclusion is an affirmative defense and it is incumbent upon the defendant to plead and prove such a defense.“);
Lastly, Mr. Johnson fails to support his argument that the district court erred “by applying a preponderance-of-evidence burden of persuasion standard[,] rather than the correct beyond-reasonable-doubt standard[,]” with any citation to Tenth Circuit authority in the
In sum, we reject Mr. Johnson‘s argument that Cheyenne and the Estate have failed to muster legally sufficient proof to establish claim preclusion as to the 1991 Action.
iii. Heck v. Humphrey Redux
Mr. Johnson also returns to an iteration of his Heck argument. He argues that, under Heck, he could not have brought the claims in his 2017 Action until he was exonerated in 2013 and so the district court erred in deeming those claims precluded by his earlier actions. Aplt.‘s Opening Br. at 28–30. Like his earlier argument—that Heck invalidated the judgments entered in the 1991 and 1992 Actions—this invocation of Heck also fails.
Mr. Johnson‘s argument starts with Heck‘s teaching that, to determine whether a prisoner‘s conviction has prevented his
But this argument runs into similar problems as those discussed above. Regardless of whether the district court in the 1991 Action should have held—even before Heck was decided—that Mr. Johnson‘s claims were not cognizable under
The Supreme Court‘s later opinion in Heck did nothing to disturb the parties’ reliance on that final judgment: “once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed.” James B. Beam Distilling, 501 U.S. at 541 (plurality opinion of Souter, J.); see Moitie, 452 U.S. at 401 (“[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” (quoting Baldwin v. Iowa State Traveling Men‘s Ass‘n, 283 U.S. 522, 525 (1931))); accord United States ex rel. Garibaldi v. Orleans Par. Sch. Bd., 397 F.3d 334, 339 n.27 (5th Cir. 2005) (“Generally speaking, final civil judgments having the effect of res judicata . . . are not voided or affected by a subsequent change in the decisional law on which they were based.” (citing James B. Beam Distilling, 501 U.S. at 541)).
We, thus, reject Mr. Johnson‘s argument that the claims in the 2017 Action were not precluded by the 1991 Action because they were not cognizable under
iv. The District Court‘s Ruling on the Estate‘s Rule 12(b)(6) Motion before Briefing Had Closed
Finally, Mr. Johnson argues that the district court erred by granting the Estate‘s
Mr. Johnson argues this was reversible error, but we disagree. “[A]lthough we disfavor . . . dismissals before the losing party has an opportunity to respond, this court has held that such a ‘dismissal under
As the district court explained, the claim-preclusion defense applicable to Cheyenne applied equally to the Estate. And the court had already received Mr. Johnson‘s briefing challenging that defense in his response to Cheyenne‘s motion to dismiss. See Aplt.‘s App., Vol. II, at 300S03 (Pl.‘s Suppl. Br. in Opp‘n to Defs.’ Mots. to Dismiss, filed July 7, 2017) (arguing that the judgment dismissing the 1991 Action is void). Accordingly, based on the district court‘s rejection of Mr. Johnson‘s arguments against Cheyenne‘s motion to dismiss based on claim preclusion, the court effectively determined that “it [wa]s patently obvious that [Mr. Johnson] could not prevail on the facts alleged” in his complaint concerning the Estate, either. Knight, 749 F.3d at 1190 (quoting McKinney, 925 F.2d at 365). Furthermore, guided by Knight‘s rubric, we conclude that the district court did not commit reversible error because “allowing [Mr. Johnson] an opportunity to amend [his] complaint would [have] be[en] futile.” Id.
The district court expressly addressed the substance of the futility issue when it subsequently denied Mr. Johnson
In arguing for a contrary result, Mr. Johnson points us to Cooper v. United States Penitentiary, 433 F.2d 596 (10th Cir. 1970) (per curiam), but that case is distinguishable. There, the district court “erred in accepting, as fact, the ex parte statement of the United States concerning plaintiff‘s non-compliance with [an administrative exhaustion requirement] and in not allowing plaintiff an opportunity to meet both the asserted deficiency in pleading and the assumption and contention that his claim was intended to be, and was capable only of being, cognizable under the Tort Claims Act.” Id. at 597. Cooper reasoned that “[t]he court cannot know, without hearing the parties, whether it may be possible for [plaintiff] to state a claim entitling him to relief, however strongly it may incline to the belief that he cannot.” Id. (quoting Harmon v. Superior Court, 307 F.2d 796, 798 (9th Cir. 1962)). Cooper, however, is distinguishable. As noted, the district court did hear from Mr. Johnson when it considered his arguments challenging Cheyenne‘s claim-preclusion defense—which was in all material respects the same as the Estate‘s claim-preclusion defense—and the court properly rejected those arguments. And, though Cooper appears to have allowed for the possibility that the plaintiff could cure “the asserted deficiency in pleading,” id., here we agree with the district court that any effort by Mr. Johnson to amend his complaint would have been futile. Aplt.‘s App., Vol. III, at 658 (“The Court finds Plaintiff could not have alleged any facts to ‘plead around’ res judicata; so, it was within the Court‘s discretion to dismiss the complaint without leave to amend.“). Accordingly, Mr. Johnson‘s reliance on Cooper is misplaced.
***
In sum, we hold that the claims in the 2017 Action against Cheyenne and the Estate are precluded by the 1991 Action. We, thus, affirm the dismissal of those claims.
b. The 1992 Action is not entitled to claim-preclusive effect.
With respect to the 1992 Action, Mr. Johnson primarily disputes the first element of claim preclusion, i.e., whether there was “a [final] judgment on the merits.” Lenox MacLaren Surgical, 847 F.3d at 1239 (alteration in original) (quoting King, 117 F.3d at 445). We recount the relevant procedural history before agreeing with Mr. Johnson that the 1992 Action was not adjudicated “on the merits” and, therefore, did not have claim-preclusive effect on the 2017 Action. We, thus, reverse the district court‘s dismissal of the claims against Officer Spencer—the only defendant in the 1992 Action—and remand for further proceedings on those claims. Because we conclude that the 1992 Action was not adjudicated “on the merits,” we need not entertain Mr. Johnson‘s separate argument that the 1992 Action did not afford him a “full and fair opportunity to litigate.”
i. Relevant Procedural History
Mr. Johnson‘s 1992 Action was a
Further, the district court stated that “[e]ven assuming [Mr. Johnson‘s] constitutional rights were violated by [Officer Spencer], . . . it was harmless error.” Id. The court held in particular that “no reasonable possibility existed to believe the evidence of [Mr. Johnson‘s] eyeglasses . . . might have contributed to his conviction” because there was other evidence—viz., the acquaintance‘s identification of him, the presence of his driver‘s license and picture I.D. in her apartment, and the forensic evidence tying him to the seminal fluid preserved in the acquaintance‘s sexual-assault kit—that had established Mr. Johnson‘s guilt. Id. at 1259. The court, thus, concluded that Officer Spencer‘s trial testimony about Mr. Johnson‘s eyeglasses “was[,] at best, extraneous and cumulative.” Id. The court then “dismissed [the complaint] with prejudice as frivolous,” noting that Mr. Johnson had filed several related lawsuits, “all of which [we]re frivolous and vexatious in nature.” Id. The court subsequently underscored the basis for its action, after noting that it had “come to the attention of the court” that Mr. Johnson‘s in forma pauperis motion was still pending. Id. at 1260. The court noted that it had recently determined that Mr. Johnson “ha[d] failed to present a rational argument on the facts or law in support of his clam . . . and that the complaint [wa]s frivolous and devoid of merit.” Id. (citing
On appeal from that judgment, we noted that the district court “dismiss[ed] the action as factually frivolous” and affirmed on the ground that “Mr. Johnson‘s lawsuit is based upon an indisputably meritless legal theory because a testifying police officer is entitled to absolute immunity.” Johnson II, 1994 WL 249805, at *1 (citation omitted).
ii. The “On the Merits” Requirement
As mentioned, a successful claim-preclusion defense requires “a [final] judgment on the merits in [the] earlier action.” Lenox MacLaren Surgical, 847 F.3d at 1239 (first alteration in original) (emphasis added) (quoting King, 117 F.3d at 445); accord Allen v. McCurry, 449 U.S. 90, 94 (1980) (“[A] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” (emphasis added)). Mr. Johnson argues that the 1992 Action was not an adjudication “on the merits” because the suit was dismissed as frivolous. We agree.
In the 1992 Action, the district court expressly relied on the then-existing
Officer Spencer argues against this straightforward conclusion. He first contends that while it is “[g]enerally” true that a
Denton created a simple rule applying to all dismissals for frivolousness under the pre-1996
Officer Spencer also cites Bell v. Hood, 327 U.S. 678, 682 (1946), for the proposition that if a court “exercise[s] its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.” See Officer Aplees.’ Resp. Br. at 18, 20. But that general proposition in Bell does not address whether frivolousness determinations are on the merits, as the very next sentence makes clear. See Bell, 327 U.S. at 682 (indicating that one of the “exceptions” to that proposition is “that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim . . . is wholly insubstantial and frivolous“). Therefore, we conclude that this proposition in Bell does nothing to limit the breadth of Denton‘s relevant pronouncement.
Relatedly, Officer Spencer relies on the Ninth Circuit‘s statement that “a dismissal for failure to state a claim under
Finally, the parties dispute whether an order with two holdings, one “on the merits” and one not, can have claim-preclusive effect. But we need not wade into this dispute.16 Notwithstanding the district
In sum, because it was not an adjudication on the merits, we conclude that the 1992 Action cannot operate with claim-preclusive effect on the 2017 Action. We, thus, reverse the district court‘s order dismissing the 2017 Action‘s claims against Officer Spencer. Because we reverse that order based on the “on the merits” element of claim preclusion, we need not and do not address whether the district court‘s order was also erroneous because it determined that the 1992 Action provided Mr. Johnson with a “full and fair opportunity to litigate.”
4. Leave to Amend
Mr. Johnson argues that the district court erred because it did not grant him leave to amend. Because we are reversing the dismissal of the claims against Officer Spencer, we address only whether the district court should have given Mr. Johnson leave to amend the claims against the Estate and Cheyenne. Although the district court justified its denial of leave to amend on other bases, we may affirm on any ground supported by the record, see, e.g., Knight, 749 F.3d at 1186, and we reject this contention of error in straightforward fashion on the ground that Mr. Johnson never properly moved for leave to amend.17
“[W]e generally review for abuse of discretion a district court‘s denial of leave to amend a complaint,” but “when [a] denial is based on a determination that amendment would be futile, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” United States ex rel. Polukoff v. St. Mark‘s Hosp., 895 F.3d 730, 740 (10th Cir. 2018) (internal quotation marks omitted) (quoting Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010)).
A district court may deny leave to amend when “a plaintiff fails to file a written motion and instead ‘merely suggest[s] she should be allowed to amend if the court conclude[s] her pleadings [a]re infirm.‘” Warnick v. Cooley, 895 F.3d 746, 755 (10th Cir. 2018) (alterations in original) (quoting Garman v. Campbell Cty. Sch. Dist. No. 1, 630 F.3d 977, 986 (10th Cir. 2010)); accord Albers v. Bd. of Cty. Comm‘rs, 771 F.3d 697, 706 (10th Cir. 2014) (“[N]ormally a court need not grant leave to amend when a party fails to file a formal motion.” (quoting Calderon v. Kan. Dep‘t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999))). And we have repeatedly held that “a bare request to amend in response to a motion to dismiss is insufficient to place the court and opposing parties on notice of the plaintiff‘s request to amend and the particular grounds upon which such a request would be based.” Albers, 771 F.3d at 706; see Glenn v. First Nat‘l Bank, 868 F.2d 368, 371 (10th Cir. 1989) (“[W]e hold that Appellant did not move the court for leave to amend the complaint and therefore the district judge committed no error in not ruling thereon. A naked request for leave to amend asked for as alternative relief when a party has the unexercised right to amend is not sufficient.“).
Mr. Johnson‘s responses to the defendants’ motions to dismiss concluded by stating the following: “If the Court disagrees [with his arguments against dismissal], Plaintiff respectfully hereby requests leave to file and serve a First Amended Complaint curing the pleading deficiencies the Court sees.” Aplt.‘s App., Vol. I, at 254 (Pl.‘s Memo. in Opp‘n to Def. Spencer‘s Mot. to Dismiss, filed June 9, 2017); accord id. at 270 (Pl.‘s Mem. in Opp‘n to Def. Cheyenne‘s Mot. to Dismiss, filed June 9, 2017). Mr. Johnson‘s brief in support of his
It is well-settled under our cases that these drive-by requests to amend the complaint do “not rise to the status of a motion.” Glenn, 868 F.2d at 370; accord Albers, 771 F.3d at 706. They did not provide the district court with any specific allegations that it could weigh against the flaws that it had found in Mr. Johnson‘s complaint. As such, “the district judge was not obliged to consider the matter, [and, thus,] he committed no error.” Glenn, 868 F.2d at 370; accord Warnick, 895 F.3d at 755. Accordingly, we conclude that Mr. Johnson‘s failure to move for leave to amend his 2017 complaint undermines this claim of error.
* * *
In sum, we affirm the district court‘s dismissal of the 2017 Action‘s claims as precluded by the 1991 Action—i.e., those against the Estate and Cheyenne—but reverse the district court‘s dismissal of the 2017 Action‘s claims as precluded by the 1992 Action—i.e., those against Officer Spencer.
Finally, after filing his notice of appeal, Mr. Johnson filed a letter in this court requesting procedural assistance in assembling his appendix. Our clerk‘s office interpreted this letter as a motion to supplement the record. To the extent the letter sought to supplement the record, we deny that motion as moot because the district court already issued an order allowing Mr. Johnson to include the relevant materials in the record.
We agree with Mr. Johnson that our starting point is the district court‘s order allowing him to include the additional documents and transcripts from the 1991 and 1992 Actions in the record.
After filing his notices of appeal, Mr. Johnson filed a notice in the district court setting forth the materials that the clerk of court should forward to us as the record on appeal. The defendants objected to some of the materials on the ground that the district court did not consider them in making its challenged rulings. The district court agreed that Mr. Johnson had included in his notice “various documents and transcripts” from his 1991 and 1992 Actions that were located at the Federal Records Center and the National Archives and, thus, “were not presented to or considered by [the court] in making its rulings.” Aplt.‘s App., Vol. VII, at 1395. The district court nonetheless held that those records “may properly be included in the record on appeal,” overruling the defendants’ objections. Id. We construe this as an order under
Mr. Johnson then filed a letter in this court seeking advice on how to include the archived records from the 1991 and 1992 Actions in his appendix. The clerk‘s office construed his letter as “a motion to supplement the record on appeal with material which was not before the district court” and ordered appellees to respond to the motion. Order No. 10529878 at 2 (10th Cir. Jan. 19, 2018). Despite the district court‘s order that the records “may properly be included in the record on appeal,” Aplt.‘s App., Vol. VII, at 1395, the Estate, Officer Spencer, and Cheyenne all opposed the motion, arguing that this Court should “limit[] the record on appeal to only those materials before the District Court when it made its decision.” Id. at 1406 (Individual Defs.’ Resp. to Appellant‘s Mot. to Suppl. the R. on Appeal, filed Jan. 29, 2018); see also id. at 1400 (Cheyenne‘s Opp‘n to Appellant‘s Mot. to Suppl. the R. on Appeal, filed Jan. 29, 2018) (same).
Mr. Johnson filed a reply wherein he reiterated that the district court had already allowed him to include the archived records from the 1991 and 1992 Actions in his appendix. A motions panel and the clerk‘s office collectively referred the original letter, the responses, and the reply to the merits (i.e., our) panel for decision. Additionally, subject to this decision, our clerk‘s office directed Mr. Johnson to “include these materials in his appendix.” Id. at 1417 (Order, filed Feb. 8, 2018).
While Cheyenne, Officer Spencer, and the Estate have made various arguments—in response to Mr. Johnson‘s letter—about why it was error for the district
Because the district court authorized Mr. Johnson to include those documents in the record on appeal, we deny as moot his separate request to this court to add those same records to his appendix. See United States v. Kutz, 702 F. App‘x 661, 665 (10th Cir. 2017) (unpublished) (“[T]he Government‘s Motion to Supplement is moot with respect to the Plea Agreement, which is already part of the record.“).
III. CONCLUSION
We acknowledge the terrible reality that Mr. Johnson must have faced during the twenty-four years that he was wrongly incarcerated. As the Supreme Court has stated, however, the doctrine of claim preclusion “serves vital public interests beyond any individual judge‘s ad hoc determination of the equities in a particular case.” Moitie, 452 U.S. at 401. Thus, for the reasons we have provided, in the 2017 Action, Case No. 17-8091, we affirm the dismissal of the claims against the Estate and Cheyenne, but reverse the dismissal of the claims against Officer Spencer and remand for further proceedings consistent with this opinion. In both the 1991 and 1992 Actions, Case Nos. 17-8089 and 17-8090, we vacate only the district court‘s order denying
Notes
In full, Rule 60(b) provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under
Rule 59(b) ;(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.