* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable M. Christina Armijo, District Judge, United States District Court of New Mexico, sitting by designation. 

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

### December 20, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LETICIA SMEDLEY, Plaintiff - Appellant,

v. CORRECTIONS CORPORATION OF AMERICA, Defendant - Appellee, ROY JOHNSON; CITY OF TULSA, OKLAHOMA; JANE DOE, Sued as Jane Doe Number One, Jane Doe Number Two; Defendants. No. 04-5113 (D.C. No. 02-CV-905-E) (N.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , MURPHY , Circuit Judges and ARMIJO , ** District Judge.
Plaintiff-Appellant Leticia Smedley (“Smedley”) fil ed suit alleging generally that she had been unlawfully arrested and deprived of her civil rights- 2 -

while incarcerated. She appeals from the district court’s grant of DefendantAppellee Corrections Corporation of America’s (“CCA ”) motion for summary judgment. Ms. Smedley also appeals the district co urt’s denial of her postjudgment motion to amend her complaint. Ms. Smedley argues that the district court erred be cause (1) she did not waive her argument that her claim under 42 U.S.C. § 1983 was based on the “inadequate training, supervision, or policy” of CC A and its employees, (2) the rule announced by the Supreme Court in Monell v. De p’t of Social Services of New York , 436 U.S. 658 (1978), which held that a state acto r cannot be held vicariously liable for claims brought under 42 U.S. C. § 1983, does not apply to a private corporation that has contracted to perform a traditional government function, and (3) that her post-judgment Rule 15(a) , Fed. R. Civ. P., motion to amend her complaint to include state tort claims sh ould have been granted. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background On November 15, 2001, Ms. Smedley worked all day fr om her home. She began working early that morning, and did not finis h until approximately 1:30 a.m. on November 16th. Aplt. Br. at 5. Throughoutthe course of the day, Ms. Smedley ingested her prescription medications as di rected by her physician, as- 3 -

well as some coffee, tea, or coke. Id. In her deposition, Ms. Smedley denied that she imbibed any alcoholic beverages or took any ill egal drugs. Aplt. App. at 57- 58. Upon completion of her day’s work, Ms. Smedleyleft her home in order to find something to eat. Ms. Smedley, who was previo usly diagnosed as hypoglycemic, needed food in order to maintain her blood glucose level, which she perceived to be low early in the morning of the 16th. Id. While Ms. Smedley was searching for a restaurant, s he was stopped by Officer Roy Johnson (“Johnson”), a Tulsa police off icer. Officer Johnson, thinking Ms. Smedley was intoxicated, administered a breathalyzer test. After an apparently negative result, Ms. Smedley was taken t o the Saint Francis Hospital for further testing. Aplt. App. at 64-65. The med ical personnel at Saint Francis determined that Ms. Smedley had a history of hypogl ycemia. Ms. Smedley’s blood glucose level was measured at 57 mg/dL. Aplt . App. at 64. According to the hospital staff, symptoms of hypoglycemia “usual ly develop if the blood glucose is less than 50 mg/dL.” Id. Thereafter, Ms. Smedley was transported and booked into the David L. Moss Criminal Justice Cent er (“Moss”), a CCA facility. Aplt. App. at 30. According to Ms. Smedley, she was subjected to a pattern of abuse by CCA prison officials. Aplt. Br. at 16. She was handcu ffed roughly and her feet were kicked apart during a pat down. Id. at 7. Upon a request for medical attention,- 4 -

she was told to “[s]it down white bitch.” Id. at 8. On two separate occasions a nurse took a reading of Ms. Smedley’s blood glucose level, and even though she found it to be lower than appropriate, the nurse di d not suggest to the prison official that Ms. Smedley needed food or water. Id

. at 8-9. Ms. Smedley further contends that a CCA official “came running after he r at full speed” and picked her “off the ground and . . . dragged [her] approxi mately 20 feet.” Id. at 9. Thereafter, a CCA official then threw Ms. Smedley t o the floor, grabbed her by the “right shoulder and right arm and hair,” and pr oceeded to drag Ms. Smedley into an adjacent holding area, at which point she b egan to kick Ms. Smedley and yelled some permutation of “get the f. . . out of my way you stupid white bitch.” Id. at 9-10. Ms. Smedley was thrown up against the ce ll wall, sustaining scratches and bruises to her face. Id. at 10. For the remainder of her stay in the holding cell, Ms. Smedley was denied food and medic al treatment by CCA officials. She also claims that CCA personnel inte ntionally delayed her release from Morris. Id. at 11. Though these allegations are troubling, th e case is resolved on purely legal grounds.

Discussion On appeal, Ms. Smedley advances three arguments: (1 ) she did not waive her argument that her claim under 42 U.S.C. § 1983 was based on the “inadequate- 5 -

training, supervision, or policy” of CCA and its employees, (2) CCA can be held vicariously liable under 42 U.S.C. § 1983; and (3) her post-judgment motion to amend her complaint to include state tort claims sh ould have been granted. We address each argument in turn. A. Inadequate Training, Supervision, or Policy According to Ms. Smedley, she has properly preserve d her inadequate training argument because she argued the issue befo re the district court at the summary judgment hearing. Aplt. Reply Br. at 7. C CA, on the other hand, argues that because Ms. Smedley (1) never raised or briefe d the issue before the district court, (2) only vaguely referenced CCA’s alleged “p retty poor policy” and “pretty poor supervision” during argument at the summary ju dgment hearing, and (3) did not identify any offending policy, custom, or pract ice on the part of CCA, that this argument should be deemed waived. Aplee. Br. at 15. In her brief in opposition to CCA’s motion for summ ary judgment, Ms. Smedley’s primary argument was that Monell did not apply to an action involving a private corrections facility, and that there was ample evidence that her civil rights were violated. Aplt. App. at 50-54. Thus, the inadequate training and supervision claim was not raised below. We have re peatedly held that absent “extraordinary circumstances,” we do not consider arguments raised for the first time on appeal. Hill v. Kansas Gas Serv. Co. , 323 F.3d 858, 866 (10th Cir. 2003).- 6 -

B. Monell Doctrine Ms. Smedley argues that the Monell doctrine should not apply to private corporations who perform government functions. Apl t. Br. at 32-43. CCA, on the other hand, argues that Monell does apply, and that as such, CCA cannot be held vicariously liable for the tortious acts of it s employees. Aplee. Br. at 10. The district court granted CCA’s motion for summaryjudgment on the issue. We review the grant of summary judgment de novo. Wolf v. Prudential Ins. Co. of
Amer. , 50 F.3d 793, 796 (10th Cir. 1995). In Monell , the Supreme Court held that a municipality cannotbe held liable under 42 U.S.C. § 1983 merely on account of the unauthorized acts of its agents. Monell , 436 U.S. 658, 691 (1978). While it is quite clea r that Monell itself applied to municipal governments and not private entities acting under color of state law, it is now well settled that Monell also extends to private defendants sued under § 1983. See e.g. , Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1216 (10th Cir. 2003) (collecting circuit court cases). As such, a private actor such as CCA “cannot be held liable solely because it employs a tortfeasor - or, in other words . . . cannot be held liable under § 1983 on a respondeat superior theory.” Monell , 436 U.S. at 691 (emphasis in original). Therefor e, in order to hold CCA liable for the alleged tortious acts of its agents, Ms. Smedley must show that CCA directly caused the constitutional violation by ins tituting an “official municipal- 7 -

policy of some nature,” id. , that was the “direct cause” or “moving force” beh ind the constitutional violations. Pembaur v. City of Cincinnati , 475 U.S. 469, 480- 85 (1986); City of Oklahoma City v. Tuttle , 471 U.S. 808, 820 (1985). The district court found, despite Ms. Smedley’s contention that her allegations were sufficient to raise a policy of “l ooking away,” that such was not the case. The court correctly concluded that no su ch allegation had been made and no policy was ever identified. Aplt. App. at 1 3. We agree. Nothing in the complaint, the brief in opposition to summary judgm ent, or the brief on appeal, adequately alleges or provides evidence of such a p olicy. Id. No evidence suggests that CCA was or should have been aware of the problems confronted by Ms. Smedley. As we understand it, Ms. Smedley appears to argue that because corporations could be held liable under 42 U.S.C. § 1983 both before and after Monell , it “simply defies logic to state that the traditi onal liability that existed for corporations prior to” Monell “should somehow be abrogated as a result of the Supreme Court extending liability under § 1983 to m unicipalities where no such liability existed before.” Aplt. Br. at 37. We di sagree. The Tenth Circuit, along with many of our sister circuits, has rejected vica rious liability in a § 1983 case for private actors based upon Monell . Dubbs , 336 F.3d at 1216. As Ms. Smedley has failed to provide any evidence that CCA had an official policy that was the- 8 -

“direct cause” of her alleged injuries, summary jud gment for CCA was appropriate. C. Denial of Post-Judgment Motion to Amend Ms. Smedley also argues that the district court err ed in denying her postjudgment Rule 15(a) motion to amend her complaint t o include two state tort claims. Aplt. Br. at 43-50. CCA argues, on the ot her hand, that the district court did not err in denying the motion because Ms. Smedl ey’s motion to amend came approximately six months after an already-extended filing deadline. Aplee. Br. at 24. The district court also denied Ms. Smedley’s Rule 59(e) motion to alter or amend the judgment. That ruling has not been appea led and is not before us. While we review a district court’s denial of a Rule 15(a) motion to amend a complaint for an abuse of discretion, The Tool Box, Inc. v. Ogden City Corp. , 419 F.3d 1084,1086-87 (10th Cir. 2005), it is well sett led that once judgment has been entered, “the filing of an amended complaint is notpermissible until judgment is set aside or vacated pursuant to Rule 59(e) or Rule 60(b).” Id. at 1087 (internal citations and quotations omitted). Furthermore, ev en though Rule 15(a) states that “leave [to amend] shall be freely granted when justice so requires,” it is also true that this presumption is inverted where a plai ntiff seeks to amend her complaint afterjudgment has been rendered. Id. Therefore, on appeal, Ms. Smedley is required to ar gue that the denial of- 9 -

her Rule 59(e) motion was error as a prerequisite t o her contention that the denial of her Rule 15(a) motion was error. Id. As such, Ms. Smedley’s waiver of any Rule 59(e) argument precludes review as it renders her Rule 15(a) argument moot. Combs v. Pricewaterhouse Coopers, LLC , 382 F.3d 1196, 1205 (10th Cir. 2004). In closing, we note that this case highlights the n eed for counsel’s conscientious and careful review of written legal m aterials prior to court submission. While this is not a school, and we are not grading papers, hardly a page of material in support of the appeal passed wi thout a spelling or grammatical error – or both. Our concern is for a persuasive c ase on behalf of the client, one that can be readily understood by opposing counsel and the court. A brief that is difficult to comprehend not only consumes more time , but also may be somewhat less than persuasive. We hope that this serves upo n counsel ready notice of the problem and the responsibility to correct it.
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge