Kyte v. State of Oregon, No. 23-1221 (10th Cir. 2023)
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Appellate Case: 23-1221 Document: 010110910976 Date Filed: 08/30/2023 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ MEGAN KYTE, Page: 1 FILED United States Court of Appeals Tenth Circuit August 30, 2023 Christopher M. Wolpert Clerk of Court Plaintiff - Appellant, v. STATE OF OREGON, No. 23-1221 (D.C. No. 1:23-CV-01648-LTB) (D. Colo.) Defendant - Appellee. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BACHARACH, KELLY, and MORITZ, Circuit Judges. _________________________________ Megan Kyte, proceeding pro se, appeals the district court’s order dismissing her 42 U.S.C. § 1983 complaint. The district court did not reach the merits of Kyte’s complaint, which asserts various constitutional violations arising from her criminal conviction in Oregon state court. Instead, it dismissed the complaint without prejudice under Federal Rule of Civil Procedure 41(b) for failure to comply with a prior court order that prohibits Kyte from filing new civil actions in the District of * After examining the brief 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-1221 Document: 010110910976 Date Filed: 08/30/2023 Page: 2 Colorado unless she obtains either representation from a licensed attorney or permission from the court to proceed pro se.1 The district court also denied her request to proceed in forma pauperis (IFP) on appeal, concluding that any appeal “would not be taken in good faith.” R. 21. Now before us on appeal, Kyte resubmits portions of her complaint and faults the district court for failing to “respond to the case.” Aplt. Br. 9. But nowhere in her brief does she address the basis for the district court’s dismissal: her failure to comply with the court’s prior order imposing filing restrictions. And although we liberally construe Kyte’s pro se filings, we will not act as her advocate. See Childers v. Crow, 1 F.4th 792, 798 n.3 (10th Cir. 2021). By failing to address the basis for the district court’s ruling, Kyte has waived any challenge to it. See Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (explaining that “[a]rguments not clearly made in a party’s opening brief are deemed waived” and noting that we have “not hesitated” to apply this rule to pro se litigants). We therefore affirm the district court’s order. We also deny Kyte’s IFP motion because she has not offered “a reasoned, nonfrivolous 1 We take judicial notice of that earlier order, in which the district court observed that it had dismissed nearly a dozen of Kyte’s lawsuits for various pleading failures, including improper venue, lack of subject-matter jurisdiction, and failure to cure or pay the filing fee. Kyte v. Mayes, No. 22-cv-02392, slip op. at 5–9 (D. Colo. Oct. 31, 2022); see also Kyte v. Denver Health, No. 23-1199, 2023 WL 4742407, at *1 & n.1 (10th Cir. July 25, 2023) (taking judicial notice of underlying filingrestrictions order). 2 Appellate Case: 23-1221 Document: 010110910976 Date Filed: 08/30/2023 Page: 3 argument” supporting her appeal. Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007). Entered for the Court Nancy L. Moritz Circuit Judge 3
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