                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           JAN 29 2003
                      UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                               Clerk
                                   TENTH CIRCUIT



 JAMES PHILLIPS,

          Plaintiff - Appellant,
 v.                                                     No. 02-2197
                                                D.C. No. CIV-02-817-JP/LCS
 PUBLIC SERVICE COMPANY OF                            (D. New Mexico)
 NEW MEXICO,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and O’BRIEN, Circuit Judges.


      James Phillips appeals pro se from the district court’s sua sponte dismissal

under Fed. R. Civ. P. 12(b)(6) of his Title VII complaint. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that it is patently

obvious that Phillips could not prevail on the facts alleged, we affirm.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and 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.
      On July 8, 2002, Phillips filed a “Notice to File Charge of Discrimination,”

in which he alleged violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-2 to -3. In his “Notice,” Phillips alluded to several violent

incidents involving his supervisor, Larry Henderson, including: (1) an incident in

which Henderson allegedly kicked a shop door open, striking Phillips; (2) an

incident in which Henderson allegedly used a company pickup in an attempt to

“run him down”; and (3) an incident in which Henderson allegedly used a

company bicycle to attempt the same. (1 R. Doc. 1 at 1–2.) Concluding that

Phillips’s Notice, as drafted, failed to make allegations sufficient to support a

Title VII claim, the district court dismissed Phillips’s Notice sua sponte, and

without prejudice.

      We review the district court's Rule 12(b)(6) ruling de novo. See Chem.

Weapons Working Group, Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485, 1490

(10th Cir. 1997). We construe a pro se plaintiff's pleadings liberally, Haines v.

Kerner, 404 U.S. 519, 520 (1972), and “[a]ll reasonable inferences must be

indulged in favor of the plaintiff . . . .” Swanson v. Bixler, 750 F.2d 810, 813

(10th Cir. 1984).

      Dismissals under Rule 12(b)(6) typically follow a motion to dismiss, which

gives the plaintiff notice and an opportunity to amend his complaint.

Nevertheless, in this circuit, sua sponte dismissal of a meritless complaint that


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cannot be salvaged by amendment comports with due process and does not

infringe the right of access to the courts. Curley v. Perry, 246 F.3d 1278, 1284

(10th Cir. 2001). A sua sponte dismissal under Rule 12(b)(6) is not reversible

error when: (1) it is “patently obvious that the plaintiff could not prevail on the

facts alleged”; and (2) “allowing [the plaintiff] an opportunity to amend his

complaint would be futile.” McKinney v. State of Okla. Dep’t of Human Servs.,

925 F.2d 363, 365 n.1 (10th Cir. 1991).

      Having reviewed Phillips’s Notice, we conclude that Phillips has made no

allegation that would support a Title VII claim. Title VII prohibits employment

discrimination on the basis of race, color, religion, sex, or national origin. 42

U.S.C. § 2000e-2(a). Phillips’s Notice lacks even the faintest suggestion that his

treatment by his employer is in any way related to his membership in a protected

group. Thus, Phillips’s Notice, as currently drafted, is inadequate to raise a claim

of disparate treatment discrimination under § 2000e-2. Phillips also states that he

fears to report all of the incidents because his employer would “use this against

[him] and threaten [him] with termination” (1 R. Doc. 1 at 2), which the district

court construed to be a claim for retaliatory discrimination under Title VII. We

agree with the district court that Phillips’s Notice, as currently drafted, fails to

allege any protected activity that would constitute a basis for a retaliatory

discrimination claim under 42 U.S.C. § 2000e-3.


                                          -3-
      The district court did not address whether allowing Phillips to amend his

complaint would be futile, nor did it give Phillips notice and an opportunity to

remedy the defect in his complaint. Phillips has not suggested on appeal,

however, how his Notice might have been amended to state a claim under Title

VII had he been given the opportunity. While we construe a pro se plaintiff’s

pleadings liberally, we “will not supply additional facts, [or] construct a legal

theory for [a] plaintiff that assumes facts that have not been pleaded.” Dunn v.

White, 880 F.2d 1188, 1197 (10th Cir. 1989). Because Phillips’s Notice was

dismissed without prejudice, no real disadvantage has come to Phillips as a result

of the sua sponte dismissal and his due process rights and right of access to the

courts are not implicated. See Curley, 246 F.3d at 1284. Should he have a good

faith basis to do so, Phillips is free to file another complaint.

      For the forgoing reasons, the judgment of the district is AFFIRMED.

      The mandate shall issue forthwith.



                                                ENTERED FOR THE COURT

                                                PER CURIAM




                                          -4-
02-2197, Phillips v. Public Service Company of New Mexico


LUCERO, Circuit Judge, Dissenting.

      In McKinney v. State of Okla. Dep’t of Human Servs., we held that a sua

sponte dismissal under Rule 12(b)(6) is not reversible error when: (1) it is

“patently obvious that the plaintiff could not prevail on the facts alleged”; and (2)

“allowing [the plaintiff] an opportunity to amend his complaint would be futile.”

925 F.2d 363, 365 n.1 (10th Cir. 1991). In Curley v. Perry, we similarly noted

that a “sua sponte dismissal of a meritless complaint that cannot be salvaged by

amendment comports with due process and does not infringe the right of access to

the courts.” 246 F.3d 1278, 1284 (10th Cir. 2001) (emphasis added). In the

instant case, we have no idea whether Phillips’s complaint could have been

salvaged by amendment because the district court failed to address the issue. It

would not take a substantial effort for the district court to make the inquiry

required by McKinney. I think this would be the better practice. While it is not

my place to speculate as to whether Phillips could have, in good faith, amended

his pleadings to state a claim under title VII, the record on appeal does reveal that

Phillips is a member of a protected class of persons, African-Americans,

indicating that it is not facially obvious that allowing him to amend his complaint

would have been futile. It is true that Phillips is not barred from filing a new

complaint, given that his Notice was dismissed without prejudice. However, the
time and expense involved in forcing litigants to file new lawsuits, should they

have a good faith basis to do so, can be obviated by the approach we established

in McKinney. This approach strikes a balance between a district court’s

legitimate need to be able to dispense with patently defective or frivilous

complaints in an expeditious manner and the fact that “[s]ua sponte dismissals are

strong medicine, and should be dispensed sparingly.” Chute v. Walker, 281 F.3d

314, 319 (1st Cir. 2002) (quotation omitted). It is especially important to uphold

this balance when dealing with pro se litigants, who are generally “to be given

reasonable opportunity to remedy defects in their pleadings.” Hall v. Bellmon,

935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

      For these reasons, I respectfully dissent.




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