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

                            FOR THE TENTH CIRCUIT                        January 7, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
MADINA BUHENDWA,

             Plaintiff-Appellant,

v.                                                         No. 13-1220
                                               (D.C. No. 1:12-CV-01711-PAB-CBS)
REGIONAL TRANSPORTATION                                     (D. Colo.)
DISTRICT,

             Defendant-Appellee.


                             ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.


      Since 2007, Ms. Madina Buhendwa has allegedly been injured three times in

bus accidents.1 Each time, the bus was owned and operated by the Regional

Transportation District. And on each occasion, the Transportation District refused to

pay for Ms. Buhendwa’s medical care. When the Transportation District refused

*
      This order and judgment does not constitute 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
       In responding to the Defendant’s motion to dismiss, Ms. Buhendwa said she
was struck by the bus the first time and fell on the bus the other two times.
Plaintiff’s Objection to Defendant’s Motion to Dismiss Plaintiff Amended
Complaint, and Jury Demand at 6 (Sept. 17, 2012).
payment for her third bus accident, Ms. Buhendwa sued, claiming that the

Transportation District had paid for medical treatment when the victims were white

and refused to pay for her treatment only because she is black. Thus, Ms. Buhendwa

sued for discrimination, invoking 42 U.S.C. § 1983, 42 U.S.C. § 1981, and 42 U.S.C.

§ 2000d. The district court dismissed the action for failure to state a valid claim; and

she appeals, seeks leave to proceed in forma pauperis, and asks for oral argument.

We affirm, grant pauper status, and decline the request for oral argument.

I.     The Appeal

       In the amended complaint, Ms. Buhendwa alleges that she was injured by a fall

or a collision in 2007, 2010, and 2012. She alleges that she sued over the 2007

incident, but the state district court dismissed the suit. See Buhendwa v. Regional

Transportation District, 2011 WL 2715155 (Colo. App. July 14, 2011) (affirming the

district court’s judgment). According to Ms. Buhendwa, the Transportation District

ultimately agreed to fund the medical care for three white individuals injured in bus

accidents. This allegation does not salvage the amended complaint under any of the

Plaintiff’s legal theories.

       A.     The Standard of Review

       In reviewing the dismissal, we assume the truth of the factual allegations in the

amended complaint and view them in the light most favorable to Ms. Buhendwa. See

Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013).

These allegations suffice only if they contain sufficient factual matter to state a claim


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that is facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Once the

district court assesses the sufficiency of the factual allegations, we review its

decision de novo. Burnett, 706 F.3d at 1235.

       B.     42 U.S.C. § 1983

       The district court concluded that the factual allegations did not suffice under

42 U.S.C. § 1983, and we agree.

       Under § 1983, the Plaintiff can recover only if the legal violation involved the

federal constitution or federal law. See Dodds v. Richardson, 614 F.3d 1185, 1193

(10th Cir. 2010). Here the violation is said to involve the right to equal protection.

This right is protected by the Fourteenth Amendment, but applies only when the

difference in treatment involves individuals who are similarly situated. Coal. For

Equal Rights, Inc. v. Ritter, 517 F.3d 1195, 1199 (10th Cir. 2008) (quoting

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Individuals are “similarly situated” only

if they are alike “in all relevant respects.” Id.

       In the amended complaint, Ms. Buhendwa refers to nineteen individuals who

obtained payment from the Transportation District after injury in a bus accident:

       ●      Michael Keranen,

       ●      Ernestine Martin,

       ●      Patricia Henisse,

       ●      Edison Kee,

       ●      Vermon Hall,


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       ●      Marvin Webb,

       ●      Carla Miranda,

       ●      Dustin Peletier,

       ●      Jacqueline LaDaga, and

       ●      ten unidentified individuals.

       Ms. Buhendwa identifies the race of only three of these individuals (Michael

Keranen, Vermon Hall, and Marvin Webb). Amended Complaint and Jury Trial

Demand of Six (6), ¶¶ 4, 14-15 (Aug. 8, 2012). And even for these three,

Ms. Buhendwa does not allege facts suggesting similarity to her own dispute with the

Transportation District.

       For example, the Plaintiff acknowledges that Michael Keranen had to sue to

obtain payment. Id., Exhs. 32, 58-60 (discovery filings in Michael Keranen’s suit

against the Regional Transportation District). Though Ms. Buhendwa also sued for

her injury in 2007, she lost the suit.

       Another of the victims (Marvin Webb) died as a result of his bus accident. Id.

¶ 15. Though the Plaintiff alleges an ankle injury and head trauma,2 she does not

suggest that her injuries compared to Mr. Webb’s.




2
       Amended Complaint and Jury Trial Demand of Six (6), ¶ 30 (Aug. 8, 2012)
(head trauma in the third incident); see Plaintiff’s Objection to Defendant’s Motion to
Dismiss Plaintiff Amended Complaint, and Jury Demand at 8 (Sept. 17, 2012) (ankle
injury and head trauma in the second and third incidents).


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      The third victim, Vermon Hall, was a 72-year-old cyclist hit by a bus-driver

who had a prior citation for careless driving and admittedly failed to slow down when

he saw the cyclist. Id., Exh. 7. Again, Ms. Buhendwa does not allege any facts in

the amended complaint to suggest a similarity between her incidents and Mr. Hall’s.

      Ms. Buhendwa has not alleged facts indicating similarities with any of the

white individuals allegedly reimbursed by the Transportation District. As a result,

Ms. Buhendwa has not pled a plausible basis for relief on her equal-protection claim

under § 1983.

      C.     42 U.S.C. § 1981

      Ms. Buhendwa also invokes 42 U.S.C. § 1981, which prohibits discrimination

in the performance of contracts. See Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1532

(10th Cir. 1995). As the district court acknowledged, the Plaintiff alleged facts

suggesting a contract for the use of public transportation. But Ms. Buhendwa does

not claim interference with her use of public transportation. See Plaintiff’s Objection

to Defendant’s Motion to Dismiss Plaintiff Amended Complaint, and Jury Demand at

12 (Sept. 17, 2012) (Ms. Buhendwa’s statement, in response to the motion to dismiss,

that she “can ride the bus”).

      Instead, she claims that the Transportation District refused to pay when it

injured her through tortious acts. These tortious acts do not involve contracts; they

involve torts. Thus, the district court correctly dismissed the § 1981 claim.




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       D.    42 U.S.C. § 2000d

       Ms. Buhendwa also invokes 42 U.S.C. § 2000d, which prohibits discrimination

based on race. As discussed above, Ms. Buhendwa has not alleged enough factual

matter to state a plausible claim of racial discrimination. Thus, the district court

correctly dismissed the § 2000d claim. See Mumid v. Abraham Lincoln High School,

618 F.3d 789, 795 (8th Cir. 2010) (holding that the defendant was entitled to

summary judgment on the § 2000d claim because the plaintiffs had “fail[ed] to

identify a similarly situated comparator” that was treated more favorably).

II.    In Forma Pauperis

       Ms. Buhendwa also moves for leave to proceed in forma pauperis. She

qualifies for this status because she cannot pay the filing fee. This motion is granted.

III.   Oral Argument

       The Plaintiff also moves for oral argument. This motion is denied because

oral argument would not aid in the decision.

IV.    Summary

       We affirm the dismissal, grant leave to proceed in forma pauperis, and deny

the request for oral argument.


                                         Entered for the Court



                                         Robert E. Bacharach
                                         Circuit Judge


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