                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           July 24, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 DARLENE SCHMIDT,

       Plaintiff - Appellant,

 v.                                                          No. 19-4029
                                                   (D.C. No. 2:18-CV-00311-DAK)
 GARY HERBERT, Governor,                                      (D. Utah)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, MURPHY, and CARSON, Circuit Judges.1
                 _________________________________

      Plaintiff Darlene Schmidt, appearing pro se appeals the district court’s

dismissal of her case for failure to state a claim upon which relief may be granted.




      *
         Plaintiff requests oral argument. 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). Plaintiff’s request is therefore denied and the case is 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 This order and judgment is not binding precedent,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
         On June 7, 2019, Plaintiff filed a motion to recuse all judges “who sat on
Utah’s Amendment 3 appeal”. Plaintiff’s motion cites no legal authority and presents
no cogent argument demonstrating that any member of this panel should recuse. Our
independent review of the issue suggests Plaintiff’s motion is wholly without merit.
Plaintiff’s motion is therefore denied.
Because Plaintiff presents no legal basis demonstrating the district court erred in

dismissing her Complaint, we affirm.

                                            I.

      In 2018, Plaintiff filed a Complaint in the United States District Court for the

District of Utah purporting to allege causes of action against Defendant Gary

Herbert, the Governor of Utah. The Complaint, in fact, contained no factual

allegations against Defendant and only two vague requests for relief. First, it

requested that the district court clarify the meaning of a Utah statute. Second, it

asked the district court to clarify “[t]he preamble’s ‘secured blessings of liberty to

ourselves and our posterity’ established June 1, 1788, that ourselves and our posterity

are equal citizens with the same secured blessings of liberty.” Defendant moved to

dismiss the Complaint. In response to Defendant’s motion to dismiss the Complaint,

Plaintiff filed an “Objection to Striking My Complaint” in which she opposed

Defendant’s motion to dismiss.

      The district court referred the case to a United States Magistrate Judge under

28 U.S.C. § 636(b)(1)(B). In a careful and articulate report and recommendation, the

magistrate judge explained that Defendant’s Complaint was “cryptic”,

“unintelligible”, and did not “contain well-pleaded factual allegations.” Because the

Complaint’s allegations were so vague as to preclude the court from ascertaining

Plaintiff’s claims and the relief Plaintiff sought, the magistrate judge concluded the

Complaint did not comply with Federal Rules of Civil Procedure 8 and 41.



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Accordingly, the magistrate judge recommended that the district court dismiss the

Complaint with prejudice.

       The district court adopted the magistrate judge’s report and recommendation.

In doing so, the district court recognized its duty to construe Plaintiff’s pleadings

liberally, but concluded that even applying such a standard, it could not find “any

actionable legal claims or facts to support such claims.” The district court, therefore,

dismissed Plaintiff’s case for failure to state a claim upon which relief can be

granted. Plaintiff then filed an “Objection to Judge Kimball’s Order” which the

district court denied. This appeal ensued.

                                                      II.

       We review de novo the district court’s order dismissing Plaintiff’s Complaint for

failure to state a claim upon which relief may be granted. Sylvia v. Wisler, 875 F.3d

1307, 1313 (10th Cir. 2017). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).




                                               III.

       The record before the district court makes clear that Plaintiff did not satisfy the

standard established in Iqbal. Plaintiff’s Complaint and additional filings, as the

magistrate judge noted, are “cryptic”, “unintelligible” and do not “contain well-

                                                3
pleaded factual allegations.” To be sure, they contain no actionable allegations

against Defendant. For this reason, we conclude the district court did not commit

error by adopting the magistrate judge’s report and recommendation and dismissing

Plaintiff’s Complaint.

       Plaintiff’s appeal fails for another reason as well. Federal Rule of Appellate

Procedure 28 requires “a succinct, clear and accurate statement of the arguments

made in the body of the brief[ ] and . . . appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on which the appellant

relies.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir.

2005) (internal quotation marks omitted). Briefing that contains only generalized

assertions of error and which otherwise fails to comply with Rule 28 can “disentitle

[a pro se litigant] to review by this court.” Id. at 841.

       Plaintiff’s briefs do not comply with Rule 28. Rather than set forth reasoned legal

argument, Plaintiff’s briefs are rambling, vague, and do not direct the court to relevant or

controlling authority. And to the extent Plaintiff asserts any error in the district court’s

order, she does so without developed argument. Because Plaintiff neglects to set forth

her appellate argument in a manner consistent with our caselaw and the Federal Rules of

Appellate Procedure, her appeal fails for that reason as well.




                                              4
AFFIRMED.


            Entered for the Court


            Joel M. Carson III
            Circuit Judge




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