DeWalt v. City of Overland Park

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
RODNEY DEWALT,

Plaintiff - Appellant,

v.

CITY OF OVERLAND PARK, KANSAS,

Defendant - Appellee.

No. 19-3169
(D.C. No. 2:18-CV-02690-DDC-TJJ)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
**

_________________________________
Plaintiff Rodney DeWalt, a pro se litigant, appeals the dismissal of his complaint
by the United States District Court for the District of Kansas. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
In December 2018 Mr. DeWalt, an African-American business owner, brought
suit against the City of Overland Park, Kansas, alleging claims of race discrimination
under 42 U.S.C. § 1981 and violations of his constitutional rights (procedural due

*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in 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.
FILED
United States Court of Appeals
Tenth Circuit

February 24, 2020

Christopher M. Wolpert
Clerk of Court
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process, equal protection, and freedom of association) under 42 U.S.C. § 1983. He also
brought state tort claims (intentional interference with economic relations and intentional
infliction of emotional distress). His claims all arose out of his unsuccessful effort to
open and operate Gossip, a live-entertainment venue in Overland Park that catered to
African-American customers. He alleged in his complaint that he was forced to close
Gossip after experiencing multiple electrical issues due to faulty wiring, a fire caused by
this faulty wiring, and racist threats from unidentified members of the public.
After answering Mr. DeWalt’s complaint, the City moved for judgment on the
pleadings under Fed. R. Civ. P. 12(c). Mr. DeWalt filed a response, which included a
request for leave to amend his complaint if the motion to dismiss was granted. The
district court concluded that Mr. DeWalt’s complaint failed to allege facts capable of
supporting his federal claims. It explained that none of Mr. DeWalt’s allegations showed
any racial motive behind the City’s actions, or that any action by the City hurt him in any
way. And it explained that Mr. DeWalt failed to identify any City policy or custom
responsible for the alleged constitutional violations. The court, however, granted Mr.
DeWalt 10 days to file a motion for leave to amend that attached the proposed amended
complaint, as required under D. Kan. Rule 15.1. The court also stated that if it dismissed
the federal claims, it would be inclined to decline to exercise supplemental jurisdiction
over the state-law claims.
Mr. DeWalt moved for a 30-day extension of the deadline. The magistrate judge
denied this motion, but nonetheless extended the deadline by four days. Mr. DeWalt did
not file a timely motion to amend; instead, he filed only an amended complaint, and he
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did so two days after the extended deadline had expired. The magistrate judge granted
the City’s motion to strike the amended complaint.
On August 5, 2019, the district court entered an order dismissing Mr. DeWalt’s
original complaint, dismissing the federal claims for failure to state a claim and declining
to exercise supplemental jurisdiction over the state-law claims, dismissing them without
prejudice. The court noted that the magistrate judge had determined that the amended
complaint did not cure the defects in the original complaint. The next day, Mr. DeWalt
moved for reconsideration of the order striking his amended complaint, arguing that he
“was so upset he missed [a] flight . . . that he rushed to the US Post Office and
overlooked the motion [for leave to amend] by mistake.” R., Vol. 1 at 304. Mr. DeWalt
then filed a timely notice of appeal from the district court’s order dismissing his case.
The magistrate judge later denied the motion for reconsideration.
Mr. DeWalt lists nine issues in his brief on appeal. Most of these issues, however,
concern rulings of the magistrate judge that he did not object to and seek review by the
district court. His failure to object “strips us of jurisdiction to review the challenged
order[s].” SEC v. Merrill Scott & Assoc., 600 F.3d 1262, 1269 (10th Cir. 2010). This is
because “a magistrate judge may not issue a final order directly appealable to the court of
appeals. Properly filed objections resolved by the district court are a prerequisite to our
review of a magistrate judge’s order under [28 U.S.C.] § 636(b)(1)(A).” Id. at 1269
(internal quotation marks omitted); see Fed. R. Civ. P. 72(a) (“A party may not assign as
error a defect in the [magistrate judge’s] order not timely objected to.”).
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There remain only Mr. DeWalt’s arguments that his original complaint should not
have been dismissed for failure to state a claim and that in any event he should have been
allowed to file his amended complaint. “We accept the well-pleaded allegations of the
complaint as true and construe them in the light most favorable to the plaintiff.” Ramirez
v. Dep’t of Corr., Colo., 222 F.3d 1238, 1240 (10th Cir. 2000). We reject Mr. DeWalt’s
arguments for essentially the same reasons given by the district court and magistrate
judge. We agree with them that neither complaint alleges facts showing the
discrimination or harm necessary for a claim under § 1981, see Hampton v. Dillard Dep’t
Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001), or the municipal policy or custom
required for a claim against the City under § 1983, see Bryson v. City of Okla. City, 627
F.3d 784, 788 (10th Cir. 2010).
Finally, we see no abuse of discretion by the district court in declining to exercise
supplemental jurisdiction over Mr. DeWalt’s remaining state-law claims. See Toone v.
Wells Fargo Bank, N.A., 716 F.3d 516, 524 (10th Cir. 2013) (“A district court’s decision
whether to exercise supplemental jurisdiction over state-law claims after dismissing every
claim over which it had original jurisdiction is purely discretionary” (brackets and
internal quotation marks omitted)).
We AFFIRM the judgment of the district court.
Entered for the Court

Harris L Hartz
Circuit Judge

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