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    Schwers v. Berry, 10th Cir. (2017)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Clayton Schwers' lawsuit as a sanction for untruthfulness during discovery. Schwers sued police officers for excessive force during his arrest, but later admitted to his doctor that he struggled with police and was intoxicated at the time of arrest. During discovery, Schwers denied being intoxicated and resisting arrest, contradicting his prior statements. The district court found Schwers lied and failed to comply with discovery orders. The appellate court agreed the district court did not abuse its discretion in dismissing the case under the relevant sanction factors.

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    Schwers v. Berry, 10th Cir. (2017)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Clayton Schwers' lawsuit as a sanction for untruthfulness during discovery. Schwers sued police officers for excessive force during his arrest, but later admitted to his doctor that he struggled with police and was intoxicated at the time of arrest. During discovery, Schwers denied being intoxicated and resisting arrest, contradicting his prior statements. The district court found Schwers lied and failed to comply with discovery orders. The appellate court agreed the district court did not abuse its discretion in dismissing the case under the relevant sanction factors.

    Original Description:

    Filed: 2017-04-14 Precedential Status: Non-Precedential Docket: 16-2262

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Clayton Schwers' lawsuit as a sanction for untruthfulness during discovery. Schwers sued police officers for excessive force during his arrest, but later admitted to his doctor that he struggled with police and was intoxicated at the time of arrest. During discovery, Schwers denied being intoxicated and resisting arrest, contradicting his prior statements. The district court found Schwers lied and failed to comply with discovery orders. The appellate court agreed the district court did not abuse its discretion in dismissing the case under the relevant sanction factors.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    56 views4 pages

    Schwers v. Berry, 10th Cir. (2017)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Clayton Schwers' lawsuit as a sanction for untruthfulness during discovery. Schwers sued police officers for excessive force during his arrest, but later admitted to his doctor that he struggled with police and was intoxicated at the time of arrest. During discovery, Schwers denied being intoxicated and resisting arrest, contradicting his prior statements. The district court found Schwers lied and failed to comply with discovery orders. The appellate court agreed the district court did not abuse its discretion in dismissing the case under the relevant sanction factors.

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    of 4

    FILED

    United States Court of Appeals


    UNITED STATES COURT OF APPEALS Tenth Circuit

    FOR THE TENTH CIRCUIT April 14, 2017


    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    CLAYTON ANDREW SCHWERS,

    Plaintiff - Appellant,

    v. No. 16-2262
    (D.C. No. 1:15-CV-00237-RB-WPL)
    CITY OF ALBUQUERQUE; MAYOR (D. New Mexico)
    RICHARD BERRY; RAYMOND
    SCHULTZ, Chief of Police, APD (former);
    CHRISTOPHER KERLIN, APD Officer;
    JOHN MINGS, APD Officer,

    Defendants - Appellees.
    _________________________________

    ORDER AND JUDGMENT*


    _________________________________

    Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


    _________________________________

    Clayton Andrew Schwers1 appeals the district courts dismissal of his lawsuit

    as a sanction for untruthfulness during discovery. Mr. Schwers sued Albuquerque

    *
    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.
    1
    Because Mr. Schwers is proceeding pro se, we construe his filings liberally.
    See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). [T]his rule of liberal
    city police officers Christopher Kerlin and John Mings2 for using excessive force

    during Mr. Schwerss arrest. After the arrest, Mr. Schwers admitted to his emergency

    room physician that he struggled with the police and resisted restraint, and that this

    led to the police officers using a Taser on Mr. Schwers at least four times. He also

    admitted to biting one of the officers. The physician reported that Mr. Schwers was

    acutely intoxicated upon arrival with a blood alcohol level of [.]151. Mr. Schwers

    pled guilty to crimes incident to the arrest.3

    During discovery, however, Mr. Schwers denied having alcohol that day,

    denied biting the officer, and denied resisting arrest. His responses to interrogatories

    were either untruthful or nonsensical, even after the magistrate judge ordered Mr.

    Schwers to provide complete answers and warned him that failure to comply with

    the order could lead to sanctions, including dismissal of the case.

    Accordingly, Officers Kerlin and Mings moved for dismissal as a sanction for

    Mr. Schwerss violation of the rules of discovery. In his response, Mr. Schwers did

    not address the discrepancies between his sworn testimony and his statements to his

    construction stops, however, at the point at which we begin to serve as his advocate.
    United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
    2
    In addition, Mr. Schwers listed as defendants the City of Albuquerque,
    Mayor Richard Berry, and Chief of Policy Raymond Schultz. The district court
    dismissed these defendants after concluding Mr. Schwers failed to state a claim
    against them. Mr. Schwers did not appeal this order.
    3
    These crimes included (1) aggravated battery upon a peace officer; (2)
    criminal damage to property (over $1,000); (3) resisting, evading, or obstructing an
    officer; and (4) concealing identity.

    2
    medical doctor and his guilty plea related to the arrest. The district court

    meticulously analyzed each of the relevant factors we identified in Ehrenhaus v.

    Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), to conclude dismissal would be an

    appropriate sanction:

    Mr. Schwers lied about his encounter with [Mr. Kerlin and Mr. Mings],
    and despite his guilty plea denied that he engaged in the activities
    leading to his arrest. He admitted to his treating physician that he bit an
    Officer, but subsequently denied this in the interrogatories and
    deposition. He also denied having consumed alcohol, but his medical
    records show otherwise. Given Mr. Schwerss repeated contradictions
    and lies and his failure to comply with the discovery process, the
    Ehrenhaus factors weigh in favor of dismissal. Mr. Schwers has
    flaunted the rules of civil procedure by failing to take the discovery
    process seriously.

    Mr. Schwers appeals the district courts order of dismissal. But Mr. Schwers

    has failed to present any argument as to how the district court abused its discretion in

    sanctioning him. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (A

    district court undoubtedly has discretion to sanction a party . . . for failing to comply

    with local or federal procedural rules. Such sanctions may include dismissing the

    partys case with prejudice or entering judgment against the party.). Instead, Mr.

    Schwerss appellate briefs rehash the allegations in his amended complaint, without

    even mentioning that the district court dismissed his case as a sanction for failing to

    comply with discovery requests. It is insufficient merely to state in ones brief that

    one is appealing an adverse ruling below without advancing reasoned argument as to

    the grounds for the appeal. Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011)

    (internal quotation marks omitted).

    3
    We conclude Mr. Schwers has failed to present any reasoned, nonfrivolous

    arguments on appeal to explain how the district court abused its discretion in

    sanctioning him. Moreover, we agree with the district courts thorough analysis of

    the Ehrenhaus factors and its conclusion that this case should be dismissed with

    prejudice. Accordingly, we affirm the district courts decision for substantially the

    same reasons set forth in its order dated October 26, 2016. We also deny Mr.

    Schwerss motion to proceed in forma pauperis.4

    Entered for the Court

    Carolyn B. McHugh
    Circuit Judge

    4
    Mr. Schwers filed a motion for leave to proceed in forma pauperis (IFP) on
    appeal. The district court denied the motion because it found Mr. Schwerss appeal
    was not taken in good faith when his response to the issues on appeal question . . .
    [did] not reveal any argument of error regarding the Courts dismissal of his claims.
    Mr. Schwers renewed his IFP motion in this court, but we agree with the district
    courts analysis.
    4

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