Professional Documents
Culture Documents
Elisabeth A. Shumaker
Clerk of Court
MICHAEL J. FRISCHENMEYER,
Plaintiff-Appellant,
v.
ROGER WERHOLTZ, Secretary of
Corrections; ROBERT HINSHAW,
Sedgwick County Kansas Sheriff;
UNKNOWN EIGHTEENTH
JUDICIAL DISTRICT COURT
JUDGE; BERNIE LUMBREAS;
LARRY LEFLORE; RUDY
PIERCE; UNKNOWN SEDGWICK
COUNTY SHERIFFS DEPUTIES,
No. 11-3291
(D.C. No. 6:10-CV-01430-WEB-KMH)
(D. Kan.)
Defendants-Appellees.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
BACKGROUND
Mr. Frischenmeyer was incarcerated in Texas from 1994 until 2006, when
DISCUSSION
We review de novo the district courts dismissals under Rule 12(b). See
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1147, 1153 (10th Cir. 2011)
(Rule 12(b)(6) and judicial immunity); Denver Justice and Peace Comm., Inc. v.
City of Golden, 405 F.3d 923, 927 (10th Cir. 2005) (Rule 12(b)(6) and qualified
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immunity); Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d
1302, 1304 (10th Cir. 1994) (personal jurisdiction under Rule 12(b)(2)).
Likewise, we review the district courts denial of summary judgment de novo,
applying the same legal standard used by the district court. Kruchowski v.
Weyerhaeuser Co., 446 F.3d 1090, 1092 (10th Cir. 2006). Because
Mr. Frischenmeyer is pro se, his filings are entitled to a liberal construction, but
we do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
In his appellate briefs, Mr. Frischenmeyer largely argues the merits of his
claims, provides no citations to the record, and no supporting legal citations.
Despite these shortcomings, we discern two specific arguments related to the
bases for the district courts dismissal that we will address.
First, Mr. Frischenmeyer claims the district court erred in considering the
motion to dismiss filed by Mr. LeFlore and Mr. Pierce rather than granting
summary judgment against them for failing to file a timely answer or responsive
motion to the complaint. However, the district court granted those defendants
leave to file their motion to dismiss out of time, which was based in part on their
attorneys need to obtain pro hac vice admission to practice law in Kansas.
Accordingly, we see no error in the district courts consideration of the motion to
dismiss or its denial of Mr. Frischenmeyers motion for summary judgment.
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Second, in his reply brief, Mr. Frischenmeyer claims the district courts
failure to hold a hearing deprived him of an opportunity to submit evidence
regarding the courts personal jurisdiction over Mr. LeFlore and Mr. Pierce. But
due process does not require an oral hearing, and a district court has discretion to
decide a motion to dismiss without one. See Steele v. Fed. Bureau of Prisons,
355 F.3d 1204, 1214 (10th Cir. 2003), abrogated on other grounds by Jones v.
Bock, 549 U.S. 199 (2007); Greene v. WCI Holdings Corp., 136 F.3d 313, 316
(2d Cir. 1998). Moreover, Mr. Frischenmeyer has not suggested any reason for
his inability to submit his jurisdictional evidence along with his response to the
motion to dismiss. Therefore, the district courts resolution of the motion to
dismiss without a hearing did not violate Mr. Frischenmeyers due process rights.
In addition to considering these specific arguments, we have reviewed the
district courts decision and AFFIRM the district courts judgment for
substantially the same reasons stated in its Memorandum and Order filed
September 27, 2011. Mr. Frischenmeyers motion to proceed on appeal without
prepayment of costs or fees is GRANTED. In his reply brief, Mr. Frischenmeyer
requests that we order appellees attorneys to provide him and this court with
their entries of appearance. That request is DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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