Handy v. City of Sheridan

WYATT T. HANDY, JR., Plaintiff - Appellant, v. CITY OF SHERIDAN; DET. KRISTINE BRYANT, in her individualand official capacity; OFF. MIKE MONTOYA, in his individualand official capacity, Defendants - Appellees.

No. 15-1048

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

January 6, 2016

(D.C. No. 1:12-CV-01015-WYD-KMT)

(D. Colo.)

ORDER AND JUDGMENT^*

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.

In 2010, Wyatt T. Handy, Jr. was prosecuted by the State of Colorado for attempted murder, felony menacing, and misdemeanor harassment for allegedly pursuing his ex-wife's vehicle at a high rate of speed and hitting it twice from behind. He was acquitted of attempted murder but convicted on the lesser charges. He was later arrested again, for sending letters to his ex-wife in violation of aprotective order, although that charge was eventually dismissed. He then brought this action asserting claims under federal and state law against certain police officers and the City of Sheridan, which employed them. He now appeals from a number of rulings culminating in the grant of summary judgment for defendants, as well as from the denial of his motion for post-judgment relief. For reasons explained below, we affirm.

I. BACKGROUND

On January 19, 2010, Mr. Handy's ex-wife, Lacy Jo Smith, came to the City of Sheridan Police Department with a companion to report a traffic incident involving serious criminal conduct by Mr. Handy. They reported to defendants Detective Kristine Bryant and Officer Michael Montoya that Mr. Handy's car had followed them at high speed through the city and twice hit their vehicle from behind. They said one of the collisions occurred when they were stopped at a red light and resulted in Ms. Smith's vehicle being pushed into the path of traffic. An inspection revealed damage to the rear area of her vehicle, and she specifically identified Mr. Handy as the perpetrator from a photo dossier. Detective Bryant prepared an affidavit of probable cause. A few days later, Detective Bryant learned of a potential eyewitness who reported seeing a car (late 1970s Cadillac) similar to Mr. Handy's hit a silver vehicle (the color of Ms. Smith's vehicle) several times. On February 1, 2010, Ms. Smith contacted Detective Bryant to report that the collisions with Mr. Handy's car had terminated her pregnancy. A warrant was issued for Mr. Handy's arrest oncharges that included two counts of attempted second-degree murder and other charges. He was arrested shortly thereafter.

At the ensuing preliminary hearing, Detective Bryant testified about the statements from Ms. Smith and her companion and the damage observed to the rear of Ms. Smith's vehicle. The judge found probable cause existed for the charges against Mr. Handy. Later, the district attorney moved to upgrade the attempted second-degree murder charges to attempted first-degree (extreme indifference) murder. Detective Bryant and Officer Montoya testified at the associated hearing. The judge found probable cause for the upgraded charges.

Trial was held in August 2011. Mr. Handy was acquitted on the attempted murder charges but convicted of felony menacing and misdemeanor harassment. His time served in pretrial custody exceeded his jail sentence for the convictions. In the meantime, however, Detective Bryant had been contacted by a district attorney regarding allegations that Mr. Handy, who was in pretrial custody in Denver, had sent threatening letters to Ms. Smith, who was also incarcerated in Denver. Because of Detective Bryant's connection to Mr. Handy's prosecution, the district attorney asked her to investigate the allegations. Upon learning Mr. Handy had sent letters to Ms. Smith contrary to an outstanding protective order, Detective Bryant submitted another probable-cause affidavit, resulting in issuance of a warrant for Mr. Handy's arrest for violating the protective order. But she made a mistake in stating that the violation occurred in the City of Sheridan (rather than Denver), apparently by failingto alter a section of the affidavit template referring to the former. The protective order violation charge was eventually dismissed.

II. DISTRICT COURT PROCEEDINGS

Because the bulk of Mr. Handy's objections on appeal are procedural, we begin with the relevant procedural history.

Some five months after Mr. Handy filed his pro se complaint, the district court issued a scheduling order setting forth deadlines for expert disclosure (January 25, 2013), completion of discovery (March 25, 2013), and filing of dispositive motions (April 25, 2013). In November 2012, Mr. Handy moved for appointment of counsel. This motion was denied by the magistrate judge without Mr. Handy seeking further review of the matter by the district court.

In December 2012, Mr. Handy filed a motion to compel adequate responses to discovery requests previously served on defendants. But he failed to appear at the February 6, 2013, hearing on the matter and the magistrate judge denied the motion without prejudice. In the meantime, the deadline for expert disclosures passed with no disclosure from Mr. Handy. On February 22, 2013, two attorneys entered their appearance on Mr. Handy's behalf. They did not, however, reassert his motion to compel or take any other action with respect to discovery before the applicable deadline passed a month later.

In May 2013, all three defendants moved for summary judgment on the claims asserted against them. Counsel for Mr. Handy filed a response to each of the motions on June 3, 2013, and then moved to withdraw a week later at Mr. Handy's request.Defendants filed their reply to the response on June 17, 2013. With summary judgment fully at issue, the district court granted counsel's motion to withdraw on July 11, 2013.

Mr. Handy thereafter filed a series of motions effectively seeking to relitigate the case. He moved for leave to file new responses to defendants' summary judgment motions, sought to amend the scheduling order and reopen discovery, and filed a second motion to compel discovery.¹ Defendants opposed these efforts, arguing they were untimely, in derogation of the principle that a party is bound by his counsel's litigation decisions,² and unfairly prejudicial. On January 14, 2014, the district court denied Mr. Handy's motion for leave to file new responses on summary judgment, which obviated the need for action by the magistrate judge on the other motions until that potentially dispositive matter was resolved. Two weeks later, Mr. Handy filed a motion for reconsideration of the order denying his request tore-brief summary judgment, along with an affidavit to support the summary judgment response filed by his attorneys.

On February 17, 2014, the district court granted summary judgment for defendants, denying Mr. Handy's pending motion for reconsideration at the same time. The next day, the magistrate judge denied Mr. Handy's motions to reopen and compel discovery as moot. Final judgment was entered for defendants on February 24, 2014. Mr. Handy moved for reconsideration under Fed. R. Civ. P. 59(e) and 60(b) three weeks later, arguing among other things that the district court erred in granting summary judgment while his motions to reopen and compel discovery and to amend the scheduling order were pending.³ He also filed what purported to be responses to defendants' original summary judgment motions. The district court denied reconsideration, and this appeal timely followed.

III. MATTERS NOT PROPERLY BEFORE US ON APPEAL

At the outset, we clarify the limited scope of this appeal by identifying two general matters raised by Mr. Handy that are not properly before us. First, he challenges the magistrate judge's denial of his motions for appointment of counsel. Magistrate judges have authority to issue final decisions on such nondispositional matters under 28 U.S.C. § 636(b)(1)(A), subject to review by the district court. But Mr. Handy did not object to the magistrate judge's decisions and, as a result, theywere never considered and upheld (or reversed) in a district court order ultimately reviewable by this court under 28 U.S.C. § 1291. We are thus left with only the magistrate judge's orders, and we have repeatedly recognized that we lack jurisdiction to directly review orders issued by a magistrate judge under § 636(b)(1)(A). See S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1269 (10th Cir. 2010) (following Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997)); Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1164-65 (10th Cir. 1986), superseded by statute on other grounds as stated in DeVargas v. Mason & Hangar-Silas Mason Co., 911 F.2d 1377, 1383-84 (10th Cir. 1990).

Mr. Handy argues that his failure to object should be excused because he is pro se and was not warned of the adverse appellate consequences of the omission. Mr. Handy confuses his situation with that of a litigant who has failed to object to a magistrate judge recommendation, involving a dispositive matter under 28 U.S.C. § 636(b)(1)(B), that was subsequently adopted in a district court order. In the latter context, this court has jurisdiction to review the district court's order, but applies a discretionary waiver rule if certain conditions are met—one of which is that a pro se litigant must have been informed about the waiver consequences of failing to object within the specified time. See, e.g., Jones v. Salt Lake Cty., 503 F.3d 1147, 1152 (10th Cir. 2007). This distinction between the jurisdictional bar to direct review of magistrate judge orders issued under § 636(b)(1)(A) and the waiver rule limiting review of district court orders based on unchallenged recommendations issued under§ 636(b)(1)(B) is critical, as we explained in Wishneski v. Andrade, 572 F. App'x 563 (10th Cir. 2014), in response to an argument identical to Mr. Handy's:

Mr. Wishneski confuses our waiver rule for [unchallenged] magistrate judge recommendations reviewed by the district court under § 636(b)(1

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