*

 This order and judgment is not binding precedent except under the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

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

March 18, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HENRY MORGAN SMITH and

DESIREE SMITH, for themselves and

on behalf of their minor children,

BRANDON SMITH and MORGAN

MARIE SMITH,

Plaintiffs-Appellants,

No. 08-2263

v.

(D. of N.M.)

BOARD OF COUNTY

COMMISSIONERS FOR THE

COUNTY OF OTERO, NEW

MEXICO; OTERO COUNTY

SHERIFF JOHN BLANSET,

individually and in his official

capacity; OTERO COUNTY DEPUTY

ROB HANSEN, individually and in

his official capacity; DEPUTY M.

MACHEWICH, individually and in his

official capacity; DEPUTY F.

PICAZO, individually and in his

official capacity; DEPUTY JOHN

DOES #1-14, and DEPUTY JANE

DOE #1, individually and in their

official capacities,

Defendants-Appellees.

(D.C. No. CIV-07-1107-WJ)

ORDER AND JUDGMENT*
*

(...continued)

Cir. R. 32.1.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.** 

Henry Morgan Smith and Desiree Smith bring this appeal challenging the

district court’s dismissal of their civil rights complaint against various Otero

County officials. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

Because the parties are familiar with the facts, we provide only a brief

summary. The Smiths owned and operated the Grubsteak Restaurant & Saloon

and the Alamarosa Travel Center. The Smiths allege their family also used the

property as their residence, with bedrooms located in separate parts of the

building. 

On September 21, 2007, the Otero County sheriff’s department received a

complaint about smoking being allowed in the Grubsteak Restaurant. Deputy Rob

Hanson went to the restaurant to investigate the complaint and spoke with the

owner, Henry Morgan Smith. After a visual investigation confirming the smoking

complaint, Deputy Hanson issued a citation to Smith for a violation of New
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Mexico’s Dee Johnson Clean Indoor Air Act (Act), which prohibits smoking in

public facilities and places of employment, including restaurants. 

Over the following week, Otero County sheriff’s deputies appeared at the

restaurant and issued additional citations for violations of the Act; people had

continued to smoke in the Grubsteak Restaurant and Smith had posted a sign

expressly stating that smoking was permitted. In total, sixteen citations were

issued to Smith over the entire course of this dispute. All but one of the citations

were eventually upheld as valid in state court.

The Smiths brought suit against the Otero County Board of County

Commissioners, the Otero County Sheriff, and various sheriff’s deputies

(collectively Defendants). In their complaint, the Smiths alleged the Defendants

had committed various torts and violated their constitutional and civil rights.

In particular, Count I of the complaint alleged the sheriff’s deputies

violated the Smiths’ Fourth Amendment rights by coming onto their premises. 

Count II alleged the deputies deprived Henry Morgan Smith of his identity by

putting his social security number on the citations. Count III alleged a violation

of the Fourteenth Amendment’s Due Process Clause and stated that the deputies

acted with an intent to falsely imprison Henry Morgan Smith. Count IV alleged a

deprivation of liberty. Count V alleged the Defendants engaged in a conspiracy

to violate the Smiths’ civil rights, including their rights to due process, equal

protection, and “to be secure persons, houses, and effects” in violation of 42
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U.S.C. § 1985. Count VI alleged the Defendants violated Article II, Section 10 of

the New Mexico Constitution—a parallel provision to the United States

Constitution’s Fourth Amendment. Finally, Count VII, brought under the New

Mexico Tort Claims Act, raised a tort claim against the Defendants for abuse of

process.

The district court dismissed all of the Smiths’ claims, with prejudice, for

failure to state any plausible case for relief. Notably, the district court found that

the Smiths had no reasonable expectation of privacy in their restaurant as it was

open to the public and the deputies’ actions had taken place during business

hours. Further, the court found the Smith’s deprivation of liberty allegations were

without merit because Henry Morgan Smith had never been detained, arrested, or

imprisoned. The court also found the Smith’s civil rights claims were without

merit because the facts failed to demonstrate the deprivation of any federal right. 

Finally, the court dismissed the abuse of process claim because Deputy Hanson

had the authority and probable cause to issue the citations as a matter of law.

The Smiths filed this timely appeal.

II. Analysis

The Smiths contend the district court erred in dismissing their Fourth

Amendment claims. According to the Smiths, the Defendants violated their

Fourth Amendment rights by coming into their restaurant without a warrant and

without probable cause. Additionally, they claim the Defendants attempted to
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enforce an unconstitutional state law that banned smoking in certain public

establishments.

We review de novo a district court’s grant of a motion to dismiss pursuant

to Rule 12(b)(6), applying the same legal standard applicable in the district court. 

Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1275 (10th Cir. 2009). “In

reviewing a motion to dismiss, this court must look for plausibility in the

complaint. Under this standard, a complaint must include enough facts to state a

claim [for] relief that is plausible on its face.” Id. (quotation omitted). The

allegations must be sufficient such that, if assumed to be true, the plaintiff

plausibly—not just speculatively—has a claim for relief. Id. Even under the

liberal standard by which we judge a pro se litigant’s pleadings, see Ford v.

Pryor, 552 F.3d 1174, 1178 (10th Cir. 2008), the Smiths have failed to meet this

pleading requirement. 

We conclude based on our independent review of the record, and for

substantially the same reasons given by the district court in its thorough opinion,

the Smiths have failed to state any facts that demonstrate a deprivation of any

federal or constitutional rights. As the district court concluded, the Smiths

retained no reasonable expectation of privacy in the public areas of their

restaurant. Consequently, they cannot point to any constitutional deprivation that
1

 The Smiths’ appellate brief states that they seek relief for violation of

their “civil rights as secured by the Fourth, Tenth, and Fourteenth Amendments.” 

Aplt. Br. at 1. But the Smiths only present arguments relating to alleged Fourth

Amendment violations by the Defendants. To the extent the Smiths challenge the

district court’s dismissal on these other grounds as well, we agree with the district

court and find the facts fail to demonstrate the Defendants deprived the Smiths of

any federal or constitutional rights.

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could form the basis for a 42 U.S.C. § 1983 cause of action.1 Therefore, even

assuming all their allegations are true, the Smiths have failed to state any

plausible claim for relief.

Lastly, we address the Smiths’ contention the district court erred in failing

to appoint counsel to help prosecute their civil rights claims. There is no

automatic right to appointment of counsel in a civil rights case. Beaudry v.

Corrections Corp. of America, 331 F.3d 1164, 1169 (10th Cir. 2003); MacCuish

v. United States, 844 F.2d 733, 735 (10th Cir. 1988). In determining whether to

appoint counsel, the district court should consider the merits of the litigant’s

claims, the nature and complexity of the factual and legal issues, and the litigant’s

ability to investigate the facts and to present his claims. Hill v. SmithKline

Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). We review a district

court’s refusal to appoint counsel for a litigant in a civil case for abuse of

discretion. Id. (“The burden is on the applicant to convince the court that there is

sufficient merit to his claim to warrant the appointment of counsel.”). “Only in

those extreme cases where the lack of counsel results in fundamental unfairness
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will the district court’s decision be overturned.” Id. (quoting McCarthy v.

Weinberg, 753 F.2d 836, 839 (10th Cir. 1985)). 

We conclude the district court did not abuse its discretion in denying the

Smiths’ motion for appointment of counsel. It appears from the record the Smiths

did not feel they were capable of representing themselves. However, the Smiths

were able to recount all the pertinent facts and the district court was able to

understand their claims. Even with appointed counsel, the Smiths would have had

little likelihood of prevailing on the merits. The fact that appointed counsel may

have presented the strongest possible case is not sufficient to warrant reversal; the

same could be said in almost every pro se case. Rucks v. Boergermann, 57 F.3d

978, 979 (10th Cir. 1995). Therefore, there was no fundamental unfairness in the

district court’s decision declining to appoint counsel to the Smiths in their civil

case against the Defendants.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s judgment

dismissing the Smiths’ claims with prejudice.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge