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

                            FOR THE TENTH CIRCUIT                          April 30, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
DARYL STONE,

             Plaintiff - Appellant,

v.                                                          No. 14-8058
                                                  (D.C. No. 2:13-CV-00126-SWS)
JOSEPH SIMONE; JEFF LAMBING;                                 (D. Wyo.)
MATT GRASHORN; CHANCE
WALKAMA; JOHN HAUKUP, in their
individual and official capacities as Law
Enforcement Officials; THE STATE OF
WYOMING; COUNTY OF LARAMIE,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.


      Daryl Stone appeals the district court’s grant of judgment on the pleadings in favor

of the defendants and the denial of his motion to file an amended complaint. The



*
      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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
individual defendants are law-enforcement officers who Stone claimed violated his rights

during a traffic stop. We affirm.

   I.      BACKGROUND

        In reviewing the grant of a motion for judgment on the pleadings, we accept as

true all facts pled by the non-moving party and grant all reasonable inferences from the

pleadings in the non-movant’s favor. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228

(10th Cir. 2012). Stone’s complaint alleged he was a passenger in a vehicle stopped by

defendant Simone, who pointed his weapon at the occupants, including Stone, and

ordered them to get out of the vehicle. When Stone did not immediately respond, an

unidentified defendant twice used his Taser on him. Stone got out of the vehicle and a

defendant, also unidentified, again shot Stone with a Taser. As Stone lay face-down and

helpless on the ground, unidentified defendants physically battered and assaulted him.

        Stone filed suit alleging causes of action under 42 U.S.C. § 1983, the Wyoming

Constitution, and Wyoming state law. Some ten months later, the defendants filed a

motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). Eight days after the

deadline for filing his response to the motion for judgment on the pleadings, Stone filed a

motion to amend the complaint, attaching a proposed amended complaint. The next day,

he filed an untimely response in opposition to the motion for judgment on the pleadings,

basing the response primarily on the proposed amended complaint. Notably, Stone’s

motion to amend offered no reason for not having earlier sought such relief. Nor did he




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offer an explanation for his untimely response in opposition to the defendants’ motion for

judgment on the pleadings.

          The district court denied leave to amend. As to the motion for judgment on the

pleadings, the court ruled the Wyoming Constitution did not provide a cause of action

and concluded that judgment was proper on the excessive-force claim because the

complaint did not give fair notice of the claims against each defendant.1 Stone appeals

these rulings, but he concedes Eleventh Amendment immunity bars his federal claims

against the State of Wyoming and defendant Simone, a Wyoming Highway Patrol

Officer, in his official capacity. He further concedes the applicable statute of limitations

bars his state-law claim of assault and battery.

    II.      JUDGMENT ON THE PLEADINGS

          We review a district court’s grant of a motion for judgment on the pleadings de

novo, using the same standard that applies to a Rule 12(b)(6) motion to dismiss. Myers v.

Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013), cert. denied, 134 S. Ct. 2842 (2014).

We “will uphold the dismissal only if [plaintiff’s] allegations fail to ‘state a claim to

relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)).




1
       In an earlier order, the district court dismissed Stone’s § 1983 claims against
Laramie County, as well as the § 1983 claims against defendants Lambing, Grashorn,
Walkama, and Haukup, in their official capacities as Laramie County Deputy
Sheriffs. Stone does not appeal that order.

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    A. Wyoming Constitutional Claim

       Stone asserts the defendants committed an unreasonable seizure in violation of the

Wyoming Constitution, giving rise to a claim for damages. The district court rejected

this claim on the ground that Stone presented no authority demonstrating a waiver of

governmental immunity.

       The Wyoming Governmental Claims Act waives sovereign or governmental

immunity only for certain enumerated torts. Harbel v. Wintermute, 883 P.2d 359, 363

(Wyo. 1994); accord State, Dep’t of Corr. v. Watts, 2008 WY 19 ¶ 20, 177 P.3d 793, 798

(Wyo. 2008) (“[T]he general rule in Wyoming is that the government is immune from

liability, and, unless a claim falls within one of the statutory exceptions to governmental

immunity, it will be barred.” (brackets and internal quotation marks omitted)).

       Stone relies on Wyo. Stat. § 1-39-112, which states, “[a] governmental entity is

liable for damages resulting from tortious conduct of peace officers while acting within

the scope of their duties.” He contends the Wyoming Constitution’s guarantee of the

right to be secure against unreasonable seizure provides him a cognizable claim for

damages, and an assault and battery by a peace officer is “contextually different” from an

assault and battery committed by a non-officer. Aplt. Br. at 40. 2

       The “Claims Act did not create new causes of action against the State of

Wyoming, its employees, agencies or political subdivisions; rather, it statutorily affirmed


2
      As noted above, Stone has abandoned on appeal his state-law claim for assault
and battery.

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the idea that those parties generally enjoy sovereign immunity from civil liability with the

exception of certain conduct for which that immunity is specifically waived.” Cooney v.

Park Cnty., 792 P.2d 1287, 1299 (Wyo. 1990), vacated on other grounds sub nom.

Cooney v. White, 501 U.S. 1201 (1991) (emphasis added). Stone points to no specific

waiver of immunity for his claim of “violation of guarantees against unreasonable

seizure,” Aplt. Br. at 35, nor does he provide any authority for his argument that

§ 1-39-112 encompasses unconstitutional conduct. Moreover, the Wyoming Supreme

Court has held that civil rights claims based on the Wyoming Constitution fail for lack of

implementing legislation. May v. Se. Wyo. Mental Health Ctr., 866 P.2d 732, 737 (Wyo.

1993). Because Stone’s claim does not fall within one of the statutorily authorized

exceptions to governmental immunity, the district court correctly concluded this claim

was barred.

   B. § 1983 Claim

       Stone also alleged an excessive-force claim under § 1983. He alleged defendant

Simone drew his weapon and pointed it at the occupants of the vehicle in which Stone

was a passenger. He further alleged an unidentified officer twice fired his Taser at him

while he was in the vehicle and that after he got out of the vehicle, he was “assaulted yet

a third time with the deputies’ taser gun on his back.” Aplt. App. at 13. Then “the

deputies physically battered and assaulted” him. Id. In granting judgment on the

pleadings, the district court noted that Stone’s complaint did not identify which of the




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defendants had committed which acts of allegedly excessive force.3 Consequently, the

court granted judgment on the pleadings in the defendants’ favor.

       When alleging § 1983 violations against government actors, a plaintiff must

“make clear exactly who is alleged to have done what to whom, to provide each

individual with fair notice as to the basis of the claims against him or her, as

distinguished from collective allegations against the state.” Kan. Penn Gaming, LLC v.

Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (brackets and internal quotation marks

omitted). Here, while Stone used collective terms – i.e., “deputies,” “defendants,” or

“officers,” see Aplt. App. at 13, he failed to distinguish the acts attributable to each

defendant, thus depriving them of the ability to ascertain the particular unconstitutional

acts each defendant is alleged to have committed. See Robbins v. Okla., 519 F.3d 1242,

1250 (10th Cir. 2008). Because Stone failed to meet his burden to provide fair notice of

the grounds for his claims against each defendant, the district court did not err in granting

judgment for defendants on Stone’s § 1983 claim.

    III.   DENIAL OF LEAVE TO AMEND

       Stone also challenges the district court’s denial of his motion to file an amended

complaint. In denying the motion, the district court observed that Stone did not seek

leave to amend until after the defendants filed their dispositive motion and nearly a year

3
       The district court recognized that Stone did identify Simone as the officer who
had drawn and pointed his handgun. But the court held that under the circumstances
described in the complaint, drawing and pointing a handgun did not support a claim
for excessive force. On appeal, Stone offers no authority to dispute the court’s
holding.

                                             -6-
after Stone filed his original complaint. The court also cited Stone’s failure to offer any

explanation for his delay in seeking leave to amend, noting that “to allow [Stone’s]

proposed amended complaint to be considered in response to Defendants’ motion [for

judgment on the pleadings] would only serve to reward [Stone’s] unexplained dilatory

responses.” Aplt. App. at 142 (emphasis added).

       We generally review a district court’s denial of leave to amend a complaint for

abuse of discretion. Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 (10th Cir.

2013). “A district court abuses its discretion if its decision is arbitrary, capricious,

whimsical, or manifestly unreasonable.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir.

2009) (internal quotation marks omitted). Here, the original complaint had been pending

for ten months without an attempt to amend.4

       “Undue” delay is grounds for denying a motion to amend. Minter v. Prime Equip.

Co., 451 F.3d 1196, 1205 (10th Cir. 2006); see also Pallottino v. City of Rio Rancho,

31 F.3d 1023, 1027 (10th Cir. 1994) (affirming denial of motion to amend filed eight

months after original complaint). Whether a delay is “undue” depends “primarily on the

reason for the delay.” Minter, 451 F.3d at 1206. As such, “denial of leave to amend is

appropriate when the party filing the motion has no adequate explanation for the delay.”

Id. (internal quotation marks omitted). Here, Stone offered no explanation whatsoever

for his delay in filing the motion to amend. Thus, the district court did not abuse its

4
      It also appears that Stone received the additional information alleged in the
proposed amended complaint through the initial disclosures made by defendants
approximately three months before Stone filed his motion to amend.

                                             -7-
discretion in denying leave to amend. Because the district court properly denied the

motion to amend, we did not consider the proposed amended complaint in reviewing

Stone’s challenge to the dismissal of his § 1983 claims.

   IV.    CONCLUSION

      The judgment of the district court is affirmed.



                                                 Entered for the Court


                                                 Nancy L. Moritz
                                                 Circuit Judge




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