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Kenneth Harding appealed a district court’s dismissal of his lawsuit against Love County, Oklahoma, its former Sheriff William Grisham, a Sheriff’s Deputy Jeff Mullinax and a number of unnamed other deputies or county agents. Harding alleged the defendants violated his rights when he was arrested for driving with an expired commercial driver’s license and jailed overnight, even though his commercial driver’s license had been administratively extended because of the COVID-19 pandemic. Exercising jurisdiction, a 10th Circuit Court of Appeals panel out of Muskogee, Oklahoma, affirmed.
Harding was driving a commercial vehicle on Interstate 35 on June 25, 2020, when he was stopped by Mullinax. After Mullinax learned his Texas commercial driver’s license was expired, Harding advised him “that [his CDL] expiration had been administratively extended due to [the Covid-19] pandemic.” Mullinax didn’t believe Harding and arrested him for driving without a license.
Harding was booked into the Love County Jail, where he was deloused. He told jail staff he was taking a prescription antibiotic, but was denied access to his medication, according to the court opinion. He was unsuccessful in contacting a bondsman and was held overnight. When he was arraigned the next day, the charge for driving without a license was dismissed and he pled not guilty to a charge for improper lane change. After his release, he “was forced to seek additional medical treatment . . . due to Defendant[s’] refusal to provide his . . . medication,” his lawsuit stated. He claimed to have suffered lost wages, pain and suffering.
Harding — then represented by an attorney — sued in Oklahoma state court. He pled claims under 42 U.S. Code 1983, alleging the defendants “violated [his] 4th, 5th, 8th and 14th Amendment rights;” a claim under the Oklahoma Constitution; and a tort claim for intentional infliction of emotional distress. The defendants removed the case to federal court and moved to dismiss.
The district court dismissed all of Harding’s claims with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
Harding appealed the district court’s dismissal of his claims.
The 10th Circuit reviewed “de novo the district court’s dismissal of a complaint . . . for failure to state a claim,” citing the decision Lucas v. Turn Key Health Clinics, LLC. “To survive a motion to dismiss, the complaint must allege sufficient facts to state a claim for relief plausible on its face.”
Because Harding on appeal proceeded pro se, his “pleadings are to be construed liberally and held to a less stringent standard,” the 10th Circuit opinion noted, citing the decision Garrett v. Selby Connor Maddux & Janer. However, pro se parties must “follow the same rules of procedure that govern other litigants.” The 10th Circuit “liberally construe[d]” Harding’s filings, but did “not act as his advocate,” citing the decision James v. Wadas.
Initially, the defendants argued Harding’s appeal was late because it was received on Jan. 3, 2023, after his Dec. 28, 2022, deadline, and they asked the 10th Circuit Court of Appeals to dismiss his appeal on that basis. But Harding’s opening brief was postmarked on Dec. 27, 2022, and so appeared to have been timely. According to the opinion, the 10th Circuit didn’t dismiss the appeal on this basis, citing the decision Lee v. Max Int’l, LLC.
However, reviewing Harding’s brief on appeal, he didn’t make any argument for why the district court incorrectly dismissed his claims. In general, the 10th Circuit will only consider issues raised by the party who brings an appeal, the opinion noted, citing the decision Tran v. Trs. of State Colls. in Colo. “Even in the context of pro se litigants, the first task of an appellant is to explain to us why the district court’s decision was wrong,” the opinion added, citing the decision GeoMetWatch Corp. v. Behunin. More specifically, “[u]nder Rule 28, which applies equally to pro se litigants, a brief must contain more than a generalized assertion of error,” the court reasoned.
Although Harding asked the 10th Circuit to reverse and to order the district court to permit discovery to allow him to prove his case, he didn’t make any argument why the district court was wrong to dismiss his claims, or how his complaint stated any claims which could viably proceed. Accordingly, absent any arguments developed by Harding, and having reviewed the briefing on appeal, the relevant portions of the record and the applicable law, the 10th Circuit saw no reversible error and affirmed for substantially the same reasons stated by the district court.