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

                            FOR THE TENTH CIRCUIT                       November 20, 2012

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
PAUL HOWARD TILLEY,

             Plaintiff-Appellant,

v.                                                          No. 12-7016
                                                   (D.C. No. 6:10-CV-00429-FHS)
JACK CHOATE, Sheriff; DERRELL                               (E.D. Okla.)
SUMMERS, Undersheriff; OKFUSKEE
COUNTY SHERIFF'S DEPARTMENT;
CREOKS MENTAL HEALTH
SERVICES; WANDA MANOS;
NORTHVIEW APARTMENTS;
TRAVELENE FISH; THOMAS DODDS,

             Defendants-Appellees.


                             ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.



      Paul Howard Tilley, proceeding pro se, appeals the district court’s dismissal of

his civil rights and state-law tort claims for failure to state a claim under 28 U.S.C.


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
§ 1915(e)(2)(B)(ii), and also appeals the district court’s subsequent dismissal of the

action as a sanction for discovery abuse under Fed. R. Civ. P. 37 (b)(2)(A)(v).

Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.

                                    I.     Background

      Filing pro se, Tilley initiated this action in Oklahoma in November 2010. He

was granted leave to proceed in forma pauperis and permitted to amend his

complaint after the district court determined that his complaint failed to establish a

basis for federal jurisdiction. Tilley subsequently filed an amended complaint and a

second amended complaint. As best we can construe his initial and amended

pleadings, Tilley’s civil rights action derives from an alleged altercation that

occurred when he went to the Okfuskee County Sheriff’s Department in Oklahoma to

file a complaint concerning the inadequate investigation into the death of a friend.

      As we understand the nature of the complaint, during the encounter

Undersheriff Derrell Summers became upset with Tilley and beat his forehead

against Tilley’s cap, attempting to provoke a fight. Tilley was thereafter physically

assaulted and placed in handcuffs by Summers and Sheriff Jack Choate. Meanwhile,

he called out to others at the sheriff’s department to contact his apartment manager,

Travelene Fish, and advise her of the situation. He was taken to Creoks Mental

Health Services (Creoks) where he was briefly evaluated by Wanda Manos and

diagnosed with schizophrenia and paranoia. Tilley refused medical treatment and

was released from custody.


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      In his second amended complaint, Tilley asserted a claim of assault and

battery, against Summers, and claims of use of excessive force, false arrest, and false

imprisonment against both Choate and Summers. He also asserted claims of

defamation of character, intentional infliction of emotional distress, and conspiracy

against Choate, Summers, Manos, and Fish, whom he claimed conspired to have him

diagnosed with a mental health condition. Additionally, he alleged that Thomas

Dodds, whom Tilley had hired to prepare his first amended complaint, conspired with

his co-defendants to draft the complaint so poorly that the cause of action would be

dismissed. And he alleged that defendants Okfuskee County Sheriff’s Department,

Creoks, and Northview Apartments should be held accountable for the actions of

their employees.

      In February 2011, pursuant to § 1915(e)(2)(B)(ii), the district court dismissed

Tilley’s claims of defamation, intentional infliction of emotional distress, and

conspiracy for failure to state a claim upon which relief can be granted, thereby

dismissing defendants Manos, Fish, Dodds, Creoks, Okfuskee County Sheriff’s

Department, and Northview Apartments. But it found that Tilley’s allegations of

assault and battery, excessive use of force, false arrest, and false imprisonment

against Choate and Summers were sufficient. Tilley attempted to appeal the district

court’s partial dismissal of his claims to this Court, but we dismissed the appeal in

May 2011 for lack of appellate jurisdiction.




                                          -3-
      The litigation proceeded against Choate and Summers but was thwarted by

discovery issues. Tilley responded to defendants’ discovery requests, but certain

responses were allegedly deficient. Among those deficiencies, Tilley refused to sign

releases for medical records unless ordered to do so by the district court. And he

indicated in his responses that there was an alleged recording of the incident but did

not produce any such recording. After defendants’ efforts to obtain revised and

supplemented responses from Tilley failed, defendants sought the district court’s

intervention in November 2011 by filing a motion to compel discovery. In a minute

order, the district court granted defendants’ motion to compel, advising Tilley that

failure to comply with the court’s order could result in sanctions, including the

dismissal of the case. Tilley, however, did not comply.

      On defendants’ motion to dismiss Tilley’s remaining claims for failure to

comply with the district court’s discovery order, and after a hearing on the matter, the

district court dismissed the action in February 2012.

                                    II.    Discussion

      Tilley appears to raise two issues on appeal: 1) Choate and Summers are not

entitled to immunity for claims of assault and battery, use of excessive force, false

arrest, and false imprisonment; and 2) defendants Okfuskee County Sheriff’s




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Department, Creoks, Manos, Fish, Dodds, and Northview Apartments should be

“reinstated.” Aplt. Opening Br. at 3.1

       As to the first issue, in his opening brief to this court, Tilley argues the merits

of his claims against defendants Choate and Summers, providing factual allegations

in support of his claims and some citation to case law. But nowhere in his brief does

he address the fundamental issue leading to the dismissal of these claims: the failure

to comply with the district court’s discovery order and the court’s resulting sanction

of dismissal. Although we are mindful that because Tilley is proceeding pro se we

must view his pleadings liberally, we will not serve as his advocate in constructing

arguments on his behalf or in searching the record. Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

       Defendants contend that Tilley has waived all issues on appeal due to

inadequate briefing. We agree. Under Fed. R. Civ. P. 37(b)(2)(A)(v), a district court

may issue an order dismissing the action if a party fails to obey an order to provide or

permit discovery. “Determination of the correct sanction for a discovery violation is

a fact-specific inquiry that the district court is best qualified to make,” and, therefore,

we review the district court’s decision to dismiss the action for abuse of discretion.


1
       Based on our review of the record, defendants-appellees Okfuskee County
Sheriff’s Department, Creoks, Manos, Fish, Dodds, and Northview Apartments were
not served a summons in the district court action, given the district court’s order
dismissing them and directing service only upon defendants-appellees Choate and
Summers. On appeal, only Choate and Summers have entered their appearances and
filed a response brief.


                                           -5-
Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Accordingly, the

appropriate issue on appeal is whether the district court’s choice of dismissal as a

sanction was a permissible exercise of its discretion. But Tilley’s brief wholly fails

to address this issue and therefore he has waived it. United States v. Almaraz,

306 F.3d 1031, 1041 (10th Cir. 2002) (“[A]rguments not briefed on appeal are

waived.”).

      We note, however, that dismissal of an action for discovery violations is

permissible and has been affirmed where, as here, a party withholds evidence. See

Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174-75

(10th Cir. 1995) (withholding of medical information in action for personal injuries

was sufficient to justify sanction of dismissal); see also Ehrenhaus, 965 F.2d

at 921-22 (sanction of dismissal upheld where party disobeyed court order to appear

at scheduled deposition).

      As to his argument concerning the merits of his claims against Choate and

Summers, Tilley’s brief is inadequate to raise any issue for appellate review. He has

not claimed any error by the district court or provided any argument. See Utahns for

Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002)

(“[I]ssues will be deemed waived if they are not adequately briefed.”), modified on

rehr’g, 319 F.3d 1207 (10th Cir. 2003); Garrett, 425 F.3d at 841 (noting that

“conclusory allegations with no citations to the record or any legal authority for

support” will result in a waiver on appeal); see also Fed. R. App. P. 28.


                                          -6-
      Turning to the second issue on appeal, to the extent that Tilley appeals the

district court’s order dismissing his claims of defamation, intentional infliction of

emotional distress, and conspiracy, as with the first issue, Tilley does not address any

error by the district court in dismissing the claims under § 1915(e)(2)(B)(ii). Instead,

in his argument to “reinstate” defendants Okfuskee County Sheriff’s Department,

Creoks, and Northview Apartments, he claims, with some citation to case law, that

they are municipalities responsible for the actions of their employees and not entitled

to absolute immunity. In support of his argument to reinstate Choate, Summers,

Manos, Fish, and Dodds, he asserts factual allegations in support of both of his

conspiracy claims against these defendants.

      But again, he does not explain how or why the district court erred in

dismissing the claims, or support any argument with citation to the record or case

law. We conclude Tilley has waived any argument on appeal. See Utahns for Better

Transp., 305 F.3d at 1175; Garrett, 425 F.3d at 841.

                                    III.   Conclusion

      The judgment of the district court is AFFIRMED.


                                                 Entered for the Court


                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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