John W. Winningham, Jr. v. City of Broken Arrow

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JOHN W. WINNINGHAM, JR.
Plaintiff - Appellant,
v.
CITY OF BROKEN ARROW; BROKEN
ARROW POLICE; COUNTY OF TULSA;
CITY OF SALLISAW; L.
RADEMACHER, Broken Arrow Police
Patrol; T. JESSE, Broken Arrow Police
Patrol,
Defendants - Appellees.
No. 21-7004
(D.C. No. 6:20-CV-00086-RAW)
(E.D. Okla.)
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ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
John W. Winningham, Jr., pro se, appeals the district court’s order dismissing
his suit against the City of Broken Arrow, the Broken Arrow Police, the County of
Tulsa, the City of Sallisaw, L. Rademacher, and T. Jesse. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
* 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit
August 24, 2021
Christopher M. Wolpert
Clerk of Court
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The complaint purports to assert claims under 42 U.S.C. § 1983 and Oklahoma
state law relating to an arrest warrant issued in 1999 in Sequoyah County, Oklahoma,
and Mr. Winningham’s arrest on the warrant in 2018 by officers Rademacher and
Jesse. For his § 1983 claims, Mr. Winningham alleges that he was touched
inappropriately during a pat down search, his vehicle was illegally searched, and the
arrest was unlawful. The complaint also contains numerous state-law claims,
including theft, false imprisonment, abuse of process, malicious prosecution, battery,
and intentional infliction of emotional distress.
Mr. Winningham further alleges that he was illegally detained in Tulsa
County, Oklahoma for fourteen days on the “[f]alsified charge and [f]alsified
warrant” issued in 1999, R. at 9, and “[t]he crooked magistrate aka judge [who issued
the warrant] will answer for his crimes,” id. at 10. The complaint also names the
City of Sallisaw as a defendant on the grounds that the Sequoyah County District
Court, which issued the 1999 arrest warrant, is in Sallisaw. And the City of Broken
Arrow and Broken Arrow Police are alleged to be liable for the acts of Rademacher
and Jesse in effectuating the arrest.
The district court granted defendants’ motions to dismiss on several grounds.
First, the court found that although Mr. Winningham named Tulsa County as a
defendant, there are no claims pled against it; rather, Mr. Winningham states in the
complaint that he intends to have the FBI “investigate” the County. Id. at 22.
Second, as to the City of Sallisaw, the court found “[t]o the extent [Mr.
Winningham] is attempting to assert any claim based upon a charge and/or warrant
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made in 199[9], it is barred by the applicable two-year statute of limitations.” Id. at
145. Moreover, the court dismissed any claims against the City as “conclusory”
because “[t]he only specific allegation is that a judge in the City of Sallisaw signed
the allegedly false charge in 199[9].” Id. Therefore, Mr. Winningham “has not
alleged plausible claims.” Id.
Third, the claims against the Broken Arrow Police were dismissed on the
grounds that “[t]he Broken Arrow Police Department is a department within the City
of Broken Arrow, not a separate entity capable of being sued.” Id. at 146. Next, the
district court dismissed the § 1983 claims against the City of Broken Arrow because
Mr. Winningham failed to “allege any facts regarding any specific policies or
customs of the City of Broken Arrow or the Broken Arrow Police Department related
to [Mr. Winningham’s] claims.” Id. And the state-law claims were dismissed as
untimely under the Oklahoma Governmental Tort Claims Act.
Last, the district court dismissed the § 1983 claims against Rademacher and
Jesse as “conclusory.” Id. at 145. “While [Mr. Winningham] ties the stop to the
199[9] Sallisaw warrant, he does not allege that the warrant was withdrawn or
dismissed. He further offers no allegations as to how or why the officers would or
should have had reason to know that the warrant was ‘falsified’ or invalid.” Id. And
the state-law claims were dismissed as time barred under the statute of limitations.
“Although we liberally construe pro se filings, we do not assume the role of
advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal
quotation marks omitted). “Our rules of appeal require appellants to sufficiently
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raise all issues and arguments on which they desire appellate review in their opening
brief.” Clark v. Colbert, 895 F.3d 1258, 1265 (10th Cir. 2018) (brackets and internal
quotation marks omitted). Among other things, “[a]n appellant’s opening brief must
identify appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.” Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (internal quotation marks omitted).
“Consistent with this requirement, we routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.” Id. Moreover, we have “repeatedly insisted that pro se parties follow
the same rules of procedure that govern other litigants.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation marks
omitted). “When a pro se litigant fails to comply with [these] rule[s], we cannot fill
the void by crafting arguments and performing the necessary legal research.” Id. at
841 (brackets and internal quotation marks omitted). Instead, inadequately briefed
issues “will be deemed waived.” Id. (internal quotation marks omitted).
Mr. Winningham fails to advance any adequately developed arguments on
appeal. Indeed, he never mentions the district court’s order or any of the several
grounds on which it granted the motions to dismiss. His failure to develop any
arguments means the issues are waived. Even if Mr. Winningham had properly
challenged the court’s order, which he failed to do, our review reveals no error.
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The judgment of the district court is affirmed. We deny Mr. Winningham’s
motion to supplement the record.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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