Norman A. Mallory v. Rocky Mountain Human Service Ssvft

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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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NORMAN A. MALLORY,
Plaintiff - Appellant,
v.
ROCKY MOUNTAIN HUMAN
SERVICE SSVFT,
Defendant - Appellee.
No. 22-1141
(D.C. No. 1:21-CV-00133-RMR-SKC)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Pro se Plaintiff Norman A. Mallory filed suit against Defendant Rocky
Mountain Services, a Colorado nonprofit organization, alleging that it had
discriminated against him because of his race in violation of Title VII. Plaintiff,
however, failed to plead an employer-employee relationship between him and
Defendant in his complaint. He conceded that no such relationship existed when he
amended his complaint pursuant to a magistrate judge’s order. Plaintiff’s amended
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 30, 2022
Christopher M. Wolpert
Clerk of Court
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complaint nevertheless reasserted his claim under Title VII and added a theory of
liability based on 42 U.S.C. § 1983.
Defendant moved for judgment on the pleadings and for summary judgment.
The magistrate judge assigned to the matter issued a report and recommendation that
recommended Defendant’s motion for judgment on the pleadings be granted. The
magistrate judge reasoned that Plaintiff’s admission that no employer-employee
relationship existed between him and Defendant precluded any relief under Title VII
and that his § 1983 claim failed because Plaintiff had both failed to plead any facts
showing Defendant acted under color of state law or support it in response to
Defendant’s motion. Plaintiff objected. The district court considered Plaintiff’s
objection, independently reviewed the magistrate judge’s recommendation, and
concluded “[f]or the reasons stated in the Recommendation, the Amended Complaint
. . . should be dismissed because Plaintiff fails to state a Title VII claim and does not
plausibly allege a Section 1983 claim.” Mallory v. Rocky Mountain Human Serv.
SSVFT, No. 1:21-CV-00133-RMR-SKC, 2022 WL 1295443, at *2 (D. Colo. Mar. 28,
2022) (citation omitted).
But the district court did not stop there—it also considered Defendant’s motion
for summary judgment. It granted that motion “[f]or similar reasons that Magistrate
Judge Crews recommended that the Court grant Defendant’s Motion for Judgment on
the Pleadings.” Id. at *3. In doing so, the district court considered documents
presented by Defendant showing that it is a nonprofit and not a governmental
organization. Id. at *4. Thus, the district court concluded that Defendant had carried
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its burden to make a prima facie showing that there was no triable issue of fact. Id. In
the view of the district court, Plaintiff failed to meaningfully respond to that showing
and did not carry his burden to show a triable issue of fact. Id. Therefore, the district
court adopted the magistrate judge’s recommendation and granted both Defendant’s
motion for judgment on the pleadings and motion for summary judgment. Id.
We have independently reviewed the magistrate judge’s report and
recommendation, the district court’s order granting Defendant’s motion for judgment
on the pleadings and motion for summary judgment, and the record on appeal. We
discern no error in the district court’s disposition of this case and “see no useful
purpose in writing at length.” Andrew v. Walzl, 834 F’Appx. 472, 473 (10th Cir. 2021)
(unpublished). Accordingly, we AFFIRM the decision below for the reasons stated in
the district court’s order.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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