*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

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

### OCT 21 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ RENEE CORNELISEN, Plaintiff-Appellant,
v. NEAL GUNNARSON, Defendant-Appellee. No. 98-4047 (D. Utah) (D.Ct. No. 97-CV-856-S)

____________________________ ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Renee Cornelison is a pro se litigator whose compla int was dismissed-2-

without prejudice for lack of jurisdiction and fail ure to state a claim on which relief may be granted.
Plaintiff sued alleging Defendant violated her Firs t Amendment rights by deliberately, and with malice, removing and/or d estroying innumerable copies of The City Weekly , a local newspaper.... That Defendant’s actions caused grievous harm to Plainti ff, because, that ... issue contained Plaintiff’s published letter, a nd Defendant’s censorship thereof violated the terms of a Free Press , as guaranteed to Plaintiff by the First Amendment of The Constitution of the United States
.... (Emphasis in original.) Defendant filed a motion t o dismiss claiming the court lacked jurisdiction and the complaint failed to state a claim on which relief may be given.
The trial court, in a thorough eight-page ruling, s et forth a lesson in pleading for Plaintiff. First, the trial court ann ounced Plaintiff’s claim “does appear to arise under the Constitution” and then st ated “Plaintiff should, nevertheless, allege that her claims arise under th e Constitution ... of the United States.” The trial court proceeded to inform Plain tiff “the protections provided by the Constitution are protections against infringeme nt by the government .... [A] party must allege an action by the state or federal government.” The trial court then informed Plaintiff the conduct must involve “‘ using the badge of [Plaintiff’s]-3-

authority’ to effect the constitutional infringemen t alleged to have occurred.” (Quoting Wyatt v. Cole , 504 U.S. 158, 161 (1992)). The trial court then granted Defendant’s motion and dismissed the complaint with out prejudice.
Plaintiff appeals this decision asserting the trial court failed to: (1) “give Plaintiff the opportunity to submit affidavits, andextraneous proofs as required and indeed did take Plaintiff by surprise”; and (2) tell the truth in his judgment by reciting “[t]his action came to trial or hearing be fore the Court. The issues have been tried or heard and a decision has been rendere d.” Stated somewhat differently, Plaintiff accuses the trial court of l ying by entering this “false” statement in its order.
Plaintiff misperceives the law. The trial court ve ry patiently and clearly instructed Plaintiff as to the essential contents o f a complaint. Specifically, the trial court provided a basic and fundamental analys is of the requirements for jurisdiction and constitutional causes of action taken against governmental entities. A copy of the district court’s ruling onthis case is attached hereto. The district court dismissed the complaint without prej udice, thereby extending to Plaintiff the opportunity to file a corrected compl aint. We will not delve into the question of the finality of an order dismissing a c omplaint without prejudice, as-4-

this might add to the confusion.
Additionally, Plaintiff fails to understand the mea ning of the word “hearing” as employed by the trial court. The tria l court specifically stated: “The court has reviewed the pleading and ... will determ ine the matter based on the written memoranda of the parties without the assist ance of oral argument.” That is, of course, a “hearing.” The district court’s r ules specifically provide, in part, that “motions are to be submitted to and will be de termined by the court on the basis of the written memoranda of the parties.” Di strict of Utah Civil Rule 7-1(f).
As to the dismissal of the complaint, we review dis missals for failure to state a claim de novo
. See Pelt v. Utah , 104 F.3d 1534, 1540 (10th Cir. 1996). Hence, we scrutinize Plaintiff’s complaint as if we are the trial court. Id. On such review, and for substantially the same reasons set forth by the district court in its ruling dated March 13, 1998, the judgment of the district court is AFFIRMED
.
Entered by the Court: WADE BRORBY United States Circuit JudgeAttachment not available electronically.