*

 This order and judgment is not binding precedent except under the doctrines of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

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Renee Cornelison is a pro se litigator whose complaint was dismissed
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without prejudice for lack of jurisdiction and failure to state a claim on which

relief may be granted.

Plaintiff sued alleging Defendant violated her First Amendment rights

by deliberately, and with malice, removing and/or destroying

innumerable copies of The City Weekly, a local newspaper.... That

Defendant’s actions caused grievous harm to Plaintiff, because, that

... issue contained Plaintiff’s published letter, and 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 to 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, set forth a lesson in

pleading for Plaintiff. First, the trial court announced Plaintiff’s claim “does

appear to arise under the Constitution” and then stated “Plaintiff should,

nevertheless, allege that her claims arise under the Constitution ... of the United

States.” The trial court proceeded to inform Plaintiff “the protections provided by

the Constitution are protections against infringement 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]
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authority’ to effect the constitutional infringement 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 without prejudice.

Plaintiff appeals this decision asserting the trial court failed to: (1) “give

Plaintiff the opportunity to submit affidavits, and extraneous 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 before the Court. The issues have

been tried or heard and a decision has been rendered.” Stated somewhat

differently, Plaintiff accuses the trial court of lying by entering this “false”

statement in its order.

Plaintiff misperceives the law. The trial court very patiently and clearly

instructed Plaintiff as to the essential contents of a complaint. Specifically, the

trial court provided a basic and fundamental analysis of the requirements for

jurisdiction and constitutional causes of action taken against governmental

entities. A copy of the district court’s ruling on this case is attached hereto. The

district court dismissed the complaint without prejudice, thereby extending to

Plaintiff the opportunity to file a corrected complaint. We will not delve into the

question of the finality of an order dismissing a complaint without prejudice, as
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this might add to the confusion.

Additionally, Plaintiff fails to understand the meaning of the word

“hearing” as employed by the trial court. The trial court specifically stated: “The

court has reviewed the pleading and ... will determine the matter based on the

written memoranda of the parties without the assistance of oral argument.” That

is, of course, a “hearing.” The district court’s rules specifically provide, in part,

that “motions are to be submitted to and will be determined by the court on the

basis of the written memoranda of the parties.” District of Utah Civil Rule 7-1(f).

As to the dismissal of the complaint, we review dismissals 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 Judge
Attachment not available electronically.