UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

PAUL HOWARD TILLEY, 

 Plaintiff-Appellant, 

v. 

JACK CHOATE, Sheriff; DERRELL 

SUMMERS, Undersheriff; OKFUSKEE 

COUNTY SHERIFF'S DEPARTMENT; 

CREOKS MENTAL HEALTH 

SERVICES; WANDA MANOS; 

NORTHVIEW APARTMENTS; 

TRAVELENE FISH; THOMAS DODDS,

 Defendants-Appellees. 

No. 12-7016 

(D.C. No. 6:10-CV-00429-FHS) 

(E.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. 

 

 Paul Howard Tilley, proceeding pro se, appeals the district court’s dismissal of 

his civil rights and state-law tort claims for failure to state a claim under 28 U.S.C. 

 

*

 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)(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 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 Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 20, 2012

Elisabeth A. Shumaker 

Clerk of Court
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§ 1915(e)(2)(B)(ii), and also appeals the district court’s subsequent dismissal of the 

action as a sanction for discovery abuse under Fed. R. Civ. P. 37 (b)(2)(A)(v). 

Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. Background 

Filing pro se, Tilley initiated this action in Oklahoma in November 2010. He 

was granted leave to proceed in forma pauperis and permitted to amend his 

complaint after the district court determined that his complaint failed to establish a 

basis for federal jurisdiction. Tilley subsequently filed an amended complaint and a 

second amended complaint. As best we can construe his initial and amended 

pleadings, Tilley’s civil rights action derives from an alleged altercation that 

occurred when he went to the Okfuskee County Sheriff’s Department in Oklahoma to 

file a complaint concerning the inadequate investigation into the death of a friend. 

As we understand the nature of the complaint, during the encounter 

Undersheriff Derrell Summers became upset with Tilley and beat his forehead 

against Tilley’s cap, attempting to provoke a fight. Tilley was thereafter physically 

assaulted and placed in handcuffs by Summers and Sheriff Jack Choate. Meanwhile, 

he called out to others at the sheriff’s department to contact his apartment manager, 

Travelene Fish, and advise her of the situation. He was taken to Creoks Mental 

Health Services (Creoks) where he was briefly evaluated by Wanda Manos and 

diagnosed with schizophrenia and paranoia. Tilley refused medical treatment and 

was released from custody. 
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In his second amended complaint, Tilley asserted a claim of assault and 

battery, against Summers, and claims of use of excessive force, false arrest, and false 

imprisonment against both Choate and Summers. He also asserted claims of 

defamation of character, intentional infliction of emotional distress, and conspiracy 

against Choate, Summers, Manos, and Fish, whom he claimed conspired to have him 

diagnosed with a mental health condition. Additionally, he alleged that Thomas 

Dodds, whom Tilley had hired to prepare his first amended complaint, conspired with 

his co-defendants to draft the complaint so poorly that the cause of action would be 

dismissed. And he alleged that defendants Okfuskee County Sheriff’s Department, 

Creoks, and Northview Apartments should be held accountable for the actions of 

their employees. 

In February 2011, pursuant to § 1915(e)(2)(B)(ii), the district court dismissed 

Tilley’s claims of defamation, intentional infliction of emotional distress, and 

conspiracy for failure to state a claim upon which relief can be granted, thereby 

dismissing defendants Manos, Fish, Dodds, Creoks, Okfuskee County Sheriff’s 

Department, and Northview Apartments. But it found that Tilley’s allegations of 

assault and battery, excessive use of force, false arrest, and false imprisonment 

against Choate and Summers were sufficient. Tilley attempted to appeal the district 

court’s partial dismissal of his claims to this Court, but we dismissed the appeal in 

May 2011 for lack of appellate jurisdiction. 
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The litigation proceeded against Choate and Summers but was thwarted by 

discovery issues. Tilley responded to defendants’ discovery requests, but certain 

responses were allegedly deficient. Among those deficiencies, Tilley refused to sign 

releases for medical records unless ordered to do so by the district court. And he 

indicated in his responses that there was an alleged recording of the incident but did 

not produce any such recording. After defendants’ efforts to obtain revised and 

supplemented responses from Tilley failed, defendants sought the district court’s 

intervention in November 2011 by filing a motion to compel discovery. In a minute 

order, the district court granted defendants’ motion to compel, advising Tilley that 

failure to comply with the court’s order could result in sanctions, including the 

dismissal of the case. Tilley, however, did not comply. 

On defendants’ motion to dismiss Tilley’s remaining claims for failure to 

comply with the district court’s discovery order, and after a hearing on the matter, the 

district court dismissed the action in February 2012. 

II. Discussion 

Tilley appears to raise two issues on appeal: 1) Choate and Summers are not 

entitled to immunity for claims of assault and battery, use of excessive force, false 

arrest, and false imprisonment; and 2) defendants Okfuskee County Sheriff’s 
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Department, Creoks, Manos, Fish, Dodds, and Northview Apartments should be 

“reinstated.” Aplt. Opening Br. at 3.1

 

As to the first issue, in his opening brief to this court, Tilley argues the merits 

of his claims against defendants Choate and Summers, providing factual allegations 

in support of his claims and some citation to case law. But nowhere in his brief does 

he address the fundamental issue leading to the dismissal of these claims: the failure 

to comply with the district court’s discovery order and the court’s resulting sanction 

of dismissal. Although we are mindful that because Tilley is proceeding pro se we 

must view his pleadings liberally, we will not serve as his advocate in constructing 

arguments on his behalf or in searching the record. Garrett v. Selby Connor 

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). 

Defendants contend that Tilley has waived all issues on appeal due to 

inadequate briefing. We agree. Under Fed. R. Civ. P. 37(b)(2)(A)(v), a district court 

may issue an order dismissing the action if a party fails to obey an order to provide or 

permit discovery. “Determination of the correct sanction for a discovery violation is 

a fact-specific inquiry that the district court is best qualified to make,” and, therefore, 

we review the district court’s decision to dismiss the action for abuse of discretion. 

 

1

 Based on our review of the record, defendants-appellees Okfuskee County 

Sheriff’s Department, Creoks, Manos, Fish, Dodds, and Northview Apartments were 

not served a summons in the district court action, given the district court’s order 

dismissing them and directing service only upon defendants-appellees Choate and 

Summers. On appeal, only Choate and Summers have entered their appearances and 

filed a response brief. 
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Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Accordingly, the 

appropriate issue on appeal is whether the district court’s choice of dismissal as a 

sanction was a permissible exercise of its discretion. But Tilley’s brief wholly fails 

to address this issue and therefore he has waived it. United States v. Almaraz, 

306 F.3d 1031, 1041 (10th Cir. 2002) (“[A]rguments not briefed on appeal are 

waived.”). 

We note, however, that dismissal of an action for discovery violations is 

permissible and has been affirmed where, as here, a party withholds evidence. See 

Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174-75 

(10th Cir. 1995) (withholding of medical information in action for personal injuries 

was sufficient to justify sanction of dismissal); see also Ehrenhaus, 965 F.2d 

at 921-22 (sanction of dismissal upheld where party disobeyed court order to appear 

at scheduled deposition). 

As to his argument concerning the merits of his claims against Choate and 

Summers, Tilley’s brief is inadequate to raise any issue for appellate review. He has 

not claimed any error by the district court or provided any argument. See Utahns for 

Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) 

(“[I]ssues will be deemed waived if they are not adequately briefed.”), modified on 

rehr’g, 319 F.3d 1207 (10th Cir. 2003); Garrett, 425 F.3d at 841 (noting that 

“conclusory allegations with no citations to the record or any legal authority for 

support” will result in a waiver on appeal); see also Fed. R. App. P. 28. 
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Turning to the second issue on appeal, to the extent that Tilley appeals the 

district court’s order dismissing his claims of defamation, intentional infliction of 

emotional distress, and conspiracy, as with the first issue, Tilley does not address any 

error by the district court in dismissing the claims under § 1915(e)(2)(B)(ii). Instead, 

in his argument to “reinstate” defendants Okfuskee County Sheriff’s Department, 

Creoks, and Northview Apartments, he claims, with some citation to case law, that 

they are municipalities responsible for the actions of their employees and not entitled 

to absolute immunity. In support of his argument to reinstate Choate, Summers, 

Manos, Fish, and Dodds, he asserts factual allegations in support of both of his 

conspiracy claims against these defendants. 

But again, he does not explain how or why the district court erred in 

dismissing the claims, or support any argument with citation to the record or case 

law. We conclude Tilley has waived any argument on appeal. See Utahns for Better 

Transp., 305 F.3d at 1175; Garrett, 425 F.3d at 841. 

III. Conclusion 

 The judgment of the district court is AFFIRMED. 

 Entered for the Court 

 Timothy M. Tymkovich 

 Circuit Judge