                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           JUL 14 2000

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk



 TOM MILLS, TERESA MILLS-
 MOHLER and FRED MILLS,

          Plaintiffs-Appellants,

 v.
                                                       No. 00-1055
                                                   (D.C. No. 99-Z-2147)
 JOHN LEE, Acting (IDO); R. E.
                                                        (Colorado)
 HOLT, Warden; KATHLEEN HAWK-
 SAWYER, Director; G.L. HERSH-
 BERGER, Regional Director and
 BUREAU OF PRISONS,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      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 cause is


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
therefore ordered submitted without oral argument.

      Tom Mills, Teresa Mills-Mohler, and Fred Mills, appearing pro se, appeal

from the district court’s dismissal of their civil rights complaint. We affirm.

      Tom Mills is a federal prisoner who was formerly housed at the United

States Penitentiary in Florence, Colorado. Teresa Mills-Mohler, Tom Mills’

sister, filed this pro se complaint on behalf of and as legal guardian of Fred Mills,

their disabled father. This complaint arises out of his treatment in January, 1999,

when he visited Tom at the Florence facility. As alleged in the complaint, Fred

Mills was denied access to the prison in his own wheelchair and prison officials

failed to provide a prison wheelchair for approximately two hours, during which

time Mr. Mills “pull[ed] himself along the storm rail” in an effort to reach the

visiting area. Rec., doc. 5, Amended Complaint at 3. Tom, Teresa, and Fred

request money damages, a writ of mandamus and other injunctive relief for the

alleged violation of Fred Mills’ constitutional rights and the prison officials’

violations of the Americans with Disabilities Act, the Rehabilitation Act, federal

racketeering laws and additional state statutes, all of which allegedly resulted in

Fred Mills’ personal injuries and Fred, Tom, and Teresa’s emotional distress.

      The district court first dismissed Tom and Teresa as plaintiffs for a lack of

standing as they failed to allege any violation of their own constitutional rights.

Turning to Fred Mills’ claims, the district court rejected his request for mandamus


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and injunctive relief since Tom was no longer housed at the Florence facility and

the prison had modified its policies to permit disabled visitors access to prison

wheelchairs. The court next held that while the conduct as alleged in the

complaint was, at best, a tort against Mr. Mills, it did not rise to a constitutional

violation. The court noted that Mr. Mills had filed a tort claim against the

government under the Federal Tort Claims Act which was still pending. The

court then recognized that money damages under the Rehabilitation Act were

barred by the government’s sovereign immunity, and finally dismissed the

racketeering and ADA claims for failure to state a claim.

      We first note that Tom Mills was the only person signing the notice of

appeal in this case, and thus we must address whether Fred and Teresa are

appellants before us. See Fed. R. App. P. 3(c)(2) (pro se notice of appeal is only

filed on behalf of party signing notice). Teresa Mills-Mohler signed and filed an

entry of appearance with this court within sixty days of the district court’s

dismissal. Because that document was timely filed under Rule 4, and gave

sufficient notice as required by Rule 3, this pro se document is effective as a

notice of appeal for her. See Smith v. Barry, 502 U.S. 244, 248-49 (1992).

Finally, since Teresa alleges she is her father’s legal guardian, she may appeal on

his behalf. See Hull v. United States, 53 F.3d 1125, 1126 (10th Cir. 1995). We

therefore have appellate jurisdiction over all the plaintiffs listed in the complaint.


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      The only argument presented on appeal by the Mills is their contention that

the district court erred in dismissing their complaint without first holding a

hearing or requiring the defendants to answer. The party filing a complaint has

the burden to set forth a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a). This requires a pro se plaintiff

to allege sufficient facts in the complaint which, if true, would entitle the plaintiff

to the requested relief. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.

1996); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The district court

here dismissed the complaint on its face for failing to allege facts showing any of

the parties were entitled to relief under any of the legal theories they presented.

See Fed. R. Civ. P. 12(b)(6). The district court did not err by failing to require an

answer to the complaint or in not according the Mills an evidentiary hearing.

Under Rule 12(b)(6), a court may sua sponte dismiss the complaint “when it is

‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and

allowing him an opportunity to [further] amend his complaint would be futile.”

Hall, 935 F.2d at 1109-10 (quoting McKinney v. Oklahoma, 925 F.2d 363, 365

(10th Cir. 1991)).

      To the extent that the Mills appeal the merits of the district court’s

dismissal, we agree with the court’s conclusion substantially for the reasons set

forth in its thorough order. See Rec., doc. 6.


                                          -4-
The district court’s dismissal is therefore AFFIRMED.

                              ENTERED FOR THE COURT


                              Stephanie K. Seymour
                              Chief Judge




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