UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DARYL STONE, Plaintiff - Appellant,

v. JOSEPH SIMONE; JEFF LAMBING; MATT GRASHORN; CHANCE WALKAMA; JOHN HAUKUP, in their individual and official capacities as Law Enforcement Officials; THE STATE OF WYOMING; COUNTY OF LARAMIE, Defendants - Appellees. No. 14-8058 (D.C. No. 2:13-CV-00126-SWS) (D. Wyo.)

ORDER AND JUDGMENT *

Before MORITZ , PORFILIO , and BALDOCK , Circuit Judges.
Daryl Stone appeals the district court’s grant of judgment on the pleadings in favor of the defendants and the denial of his mo tion to file an amended complaint. The

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 30, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - individual defendants are law-enforcement o fficers who Stone claimed violated his rights during a traffic stop. We affirm.
I. BACKGROUND In reviewing the grant of a motion for judgment on the pleadings, we accept as true all facts pled by the non-moving party and grant all reasonable inferences from the pleadings in the non-movant’s favor. Colony Ins. Co. v. Burke , 698 F.3d 1222, 1228 (10th Cir. 2012). Stone’s complaint alleged he was a passenger in a vehicle stopped by defendant Simone, who pointed his weapon at the occupants, including Stone, and ordered them to get out of the vehicle. When Stone did not imme diately respond, an unidentified defendant twice used his Taser on him. Stone got out of the vehicle and a defendant, also unidentified, again shot Stone with a Taser. As Stone lay face-down and helpless on the ground, unidentified defendants physically battered and assaulted him. Stone filed suit alleging causes of acti on under 42 U.S.C. § 1983, the Wyoming Constitution, and Wyoming state law. Some ten months later, th e defendants filed a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). Eight days after the deadline for filing his response to the motion fo r judgment on the pleadings, Stone filed a motion to amend the complaint, attaching a pr oposed amended complaint. The next day, he filed an untimely response in opposition to the motion for judgment on the pleadings, basing the response primarily on the proposed amended complaint. Notably, Stone’s motion to amend offered no reason for not havi ng earlier sought such relief. Nor did he- 3 - offer an explanation for his untimely respons e in opposition to the defendants’ motion for judgment on the pleadings. The district court denied leave to ame nd. As to the motion for judgment on the pleadings, the court ruled the Wyoming Cons titution did not provid e a cause of action and concluded that judgment was proper on the excessive-for ce claim because the complaint did not give fair notice of the claims agains t each defendant. 1 Stone appeals these rulings, but he concedes Eleventh Am endment immunity bars his federal claims against the State of Wyoming and defend ant Simone, a Wyoming Highway Patrol Officer, in his official capacity . He further concedes the a pplicable statute of limitations bars his state-law claim of assault and battery.
II. JUDGMENT ON THE PLEADINGS We review a district court’s grant of a motion for judgment on the pleadings de novo, using the same standard that applies to a Rule 12 (b)(6) motion to dismiss. Myers v. Koopman , 738 F.3d 1190, 1193 (10th Cir. 2013), cert. denied , 134 S. Ct. 2842 (2014). We “will uphold the dismissal only if [plainti ff’s] allegations fail to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)).

1 In an earlier order, the district c ourt dismissed Stone’s § 1983 claims against Laramie County, as well as the § 1983 clai ms against defendants Lambing, Grashorn, Walkama, and Haukup, in th eir official capacities as Laramie County Deputy Sheriffs. Stone does not appeal that order.- 4 - A. Wyoming Constitutional Claim Stone asserts the defendants committed an unreasonable seizure in violation of the Wyoming Constitution, givi ng rise to a claim for damages. The district court rejected this claim on the ground that Stone presen ted no authority demonstrating a waiver of governmental immunity. The Wyoming Governmental Claims Ac t waives sovereign or governmental immunity only for certain enumerated torts. Harbel v. Wintermute , 883 P.2d 359, 363 (Wyo. 1994); accord State, Dep’t of Corr. v. Watts , 2008 WY 19 ¶ 20, 177 P.3d 793, 798 (Wyo. 2008) (“[T]he general ru le in Wyoming is that the government is immune from liability, and, unless a claim falls within one of the statutory exceptions to governmental immunity, it will be barred.” (brackets a nd internal quotation marks omitted)). Stone relies on Wyo. Stat. § 1-39-112, which states, “[a] governmental entity is liable for damages resulting from tortious co nduct of peace officers while acting within the scope of their duties.” He contends the Wyoming Constituti on’s guarantee of the right to be secure against unreasonable seizure provides him a cognizable claim for damages, and an assault and battery by a peac e officer is “contextua lly different” from an assault and battery committed by a non-officer. Aplt. Br. at 40. 2 The “Claims Act did not create new causes of action against the State of Wyoming, its employees, agencies or political subdivisions; rather, it statutorily affirmed

2 As noted above, Stone has abandoned on appeal his state-la w claim for assault and battery.- 5 - the idea that those parties generally enjoy s overeign immunity from ci vil liability with the exception of certain conduct for which that immunity is specifically waived .” Cooney v. Park Cnty. , 792 P.2d 1287, 1299 (Wyo. 1990), vacated on other grounds sub nom. Cooney v. White , 501 U.S. 1201 (1991) ( emphasis added). Stone points to no specific waiver of immunity for his claim of “v iolation of guarantees against unreasonable seizure,” Aplt. Br. at 35, nor does he provide any authority for his argument that § 1-39-112 encompasses uncon stitutional conduct. More over, the Wyoming Supreme Court has held that civil rights claims base d on the Wyoming Constitution fail for lack of implementing legislation. May v. Se. Wyo. Mental Health Ctr. , 866 P.2d 732, 737 (Wyo. 1993). Because Stone’s claim does not fall w ithin one of the statutorily authorized exceptions to governmental i mmunity, the district court co rrectly concluded this claim was barred.
B. § 1983 Claim Stone also alleged an excessive-force cl aim under § 1983. He alleged defendant Simone drew his weapon and pointed it at th e occupants of the vehicle in which Stone was a passenger. He further alleged an uniden tified officer twice fired his Taser at him while he was in the vehicle and that after he got out of the vehicle, he was “assaulted yet a third time with the deputies’ taser gun on hi s back.” Aplt. App. at 13. Then “the deputies physically battered and assaulted” him. Id. In granting judgment on the pleadings, the district court noted that Ston e’s complaint did not identify which of the- 6 - defendants had committed which acts of allegedly excessive force. 3 Consequently, the court granted judgment on the pleadin gs in the defendants’ favor. When alleging § 1983 viola tions against government actors, a plaintiff must “make clear exactly who is alleged to have done what to whom , to provide each individual with fair notice as to the ba sis of the claims against him or her, as distinguished from collective alle gations against the state.” Kan. Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1215 (10t h Cir. 2011) (brackets and internal quotation marks omitted). Here, while Stone used collective terms – i.e. , “deputies,” “defendants,” or “officers,” see Aplt. App. at 13, he failed to dis tinguish the acts attr ibutable to each defendant, thus depriving them of the ability to ascertain the particular unconstitutional acts each defendant is alleged to have committed. See Robbins v. Okla. , 519 F.3d 1242, 1250 (10th Cir. 2008). Because Stone failed to meet his burden to pr ovide fair notice of the grounds for his claims agains t each defendant, the district court did not err in granting judgment for defendants on Stone’s § 1983 claim.
III. DENIAL OF LEAVE TO AMEND Stone also challenges the district court’s denial of his motion to file an amended complaint. In denyin g the motion, the district court ob served that Stone did not seek leave to amend until after the defendants file d their dispositive motion and nearly a year

3 The district court recognized that St one did identify Simone as the officer who had drawn and pointed his hand gun. But the court held that under the circumstances described in the complaint, drawing a nd pointing a handgun did not support a claim for excessive force. On appeal, Stone offers no au thority to dispute the court’s holding.- 7 - after Stone filed his original complaint. The court also cited Stone’s failure to offer any explanation for his delay in seeking leave to amend, noting that “to allow [Stone’s] proposed amended complaint to be considered in response to Defendants’ motion [for judgment on the pleadings] would only serve to reward [Stone’s] unexplained dilatory responses.” Aplt. App. at 142 (emphasis added). We generally review a district court’s de nial of leave to amend a complaint for abuse of discretion. Berneike v. CitiMortgage, Inc. , 708 F.3d 1141, 1145 (10th Cir. 2013). “A district court abuses its discreti on if its decision is arbitrary, capricious, whimsical, or manifestly unreasonable.” Bylin v. Billings , 568 F.3d 1224, 1229 (10th Cir. 2009) (internal quotation marks omitted). He re, the original comp laint had be en pending for ten months without an attempt to amend. 4 “Undue” delay is grounds for denying a motion to amend. Minter v. Prime Equip.
Co. , 451 F.3d 1196, 1205 (10th Cir. 2006); see also Pallottino v. City of Rio Rancho , 31 F.3d 1023, 1027 (10th Cir. 1994) (affirming denial of motion to amend filed eight months after original complaint). Whether a delay is “undue” depends “primarily on the reason for the delay.” Minter , 451 F.3d at 1206. As such, “denial of leave to amend is appropriate when the party filing the motion ha s no adequate explanation for the delay.” Id. (internal quotation marks omitted). Here , Stone offered no explanation whatsoever for his delay in filing the motion to amend. Thus, the district court did not abuse its

4 It also appears that Stone received the additional information alleged in the proposed amended complain t through the initial disclo sures made by defendants approximately three months before Stone filed his motion to amend.- 8 - discretion in denying leave to amend. Beca use the district court properly denied the motion to amend, we did not consider the proposed amended complaint in reviewing Stone’s challenge to the dism issal of his § 1983 claims.
IV. CONCLUSION The judgment of the district court is affirmed.

Entered for the Court
Nancy L. Moritz Circuit Judge