*

This order and judgment is not binding precedent except under the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

January 24, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GENE AUTREY BURRIS, SR.,

individually and as a business, d/b/a

Customer Development Service,

Plaintiff - Appellant,

No. 07-6181

v. W.D. Okla.

UNITED STATES DEPARTMENT

OF JUSTICE, FBI Oklahoma City

Division; SAMUEL J. MACALUSO,

Officer (ASAC); SALVADOR

HERNANDEZ, Officer (SAC); JOHN

P. MABRY, Officer (CDC);

RICHARD C. A. SMITH, Officer

(SA); WILLIAM W. WEAVER,

Officer (SA); WILLIAM A. LARSH,

Officer (SSA),

Defendants - Appellees.

(D.C. No. 07-CV-50-HE)

ORDER AND JUDGMENT*

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
1

 We liberally construe pro se pleadings. Ledbetter v. City of Topeka, Kan.,

318 F.3d 1183, 1187 (10th Cir. 2003).

2

 In addition to requesting criminal prosecution, Burris’ letters to officials

at the Department of Justice and FBI included several pages of quotations from

The Bible and the movie The Hurricane.

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unanimously that oral argument would not materially assist in 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.

Gene Autrey Burris, Sr., appearing pro se,1

 appeals from the dismissal of

his claims against the Federal Bureau of Investigation (FBI) and six of its

employees. We affirm.

I. BACKGROUND

The record reveals multiple attempts by Burris to have the FBI and

Department of Justice investigate and criminally prosecute the entities he named

as defendants in a state court personal injury case.2

 After reviewing his materials,

the FBI informed Burris it does not investigate civil matters and an Assistant

United States Attorney for the Western District of Oklahoma informed him his

allegations did not give rise to a violation of federal criminal law. The

Department of Justice informed Burris his allegations did not involve a federal

civil rights law it was authorized to enforce and therefore it would take no further

action. The FBI, Assistant United States Attorney and Department of Justice

separately advised Burris he should seek the advise of a private attorney because
3

 The newspaper article appears to refer to this Court’s decision in

Crownover v. City of Lindsay, Okla., 229 F.3d 1162 (10th Cir. 2000) (unpublished

table decision) (“To establish municipal liability, a plaintiff must show ‘that the

unconstitutional actions of an employee were representative of an official policy

or custom of the municipal institution or were carried out by an official with final

policy making authority with respect to the challenged action.’” (quoting Seamons

v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000)). 

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he risked being barred by the statute of limitations on any potential civil claims. 

The Department of Justice went so far as to provide the addresses and phone

numbers of the Oklahoma Bar Association and a legal aid service in Burris’ area.

Because the agencies did not act according to his wishes, Burris brought

suit against the FBI and six current or former employees in the agency’s

Oklahoma City office. In his initial complaint, Burris cited to a newspaper article

from The Daily Oklahoman which featured a story about a civil rights case.3

Based on the newspaper article, Burris alleged the defendants violated his civil

rights and unlawfully discriminated against him by failing to comply with its

official policies and customs. He claimed the Department of Justice and FBI

violated his civil rights through inaction. Burris did not, however, identify which

of his federal civil rights were allegedly violated. 

On April 9, 2007, the defendants filed a motion to dismiss the complaint. 

The district court, pursuant to the local rules, gave Burris eighteen days (until

April 27, 2007) to oppose the motion or have it be deemed confessed. See W.D.

Okla. LCvR 7.1(g) (motion practice). Even though Burris failed to timely

respond, the district court considered the merits of the defendants’ motion. It
4

 Section 2284 calls for a district court of three judges when “required by

Act of Congress, or when an action is filed challenging the constitutionality of the

apportionment of congressional districts or the apportionment of any statewide

legislative body.” 

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liberally construed Burris’ complaint, but dismissed it by order dated May 24,

2007, because he failed to identify an alleged constitutional violation or plead

facts supporting an identifiable claim. See Fed. R. Civ. P. 12(b)(6). The court

explained that although Burris was not required to plead specific legal theories,

he was required to provide the defendants with notice of the basis of his claims

and had failed to do so. It did not address the other grounds for dismissal urged

by the defendants.

On June 12, 2007, Burris filed a motion to extend the time to file a

response to the defendants’ motion to dismiss claiming he never received a copy

of it. The district court denied Burris’ motion, but granted him leave to amend

his complaint. Burris filed an amended complaint but again did not identify a

constitutional claim or plead facts to support one. After liberally construing

Burris’ amended complaint, the court sua sponte dismissed it.

Burris then filed a motion requesting a three-judge panel pursuant to 28

U.S.C. § 22844

 and Rule 9.1 of the Local Civil Rules. In a separate filing, Burris

asserted a three-judge panel was necessary because the defendants failed to follow

various local civil rules and the district court conspired with the defendants to

violate his right to a fair trial. The district court denied the motion because the
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statute did not authorize a three-judge panel for the claims asserted by Burris.

Subsequently, Burris filed a second complaint and notice requesting a

three-judge panel, and a response to the district court’s order dismissing his

amended complaint. The court made a docket entry on July 24, 2007, indicating

the action had been dismissed and nothing further should be filed except for

pleadings associated with an appeal. Burris filed a notice of appeal on August 1,

2007. 

II. DISCUSSION

A. Motion to Dismiss

We construe Burris’ request that “this Honorable Court would restore and

reopen [his] closed case in its entirety” to be an appeal from the district court’s

dismissal of his complaint. Our review of a district court’s dismissal for failure

to state a claim is de novo. Macarthur v. San Juan County, 497 F.3d 1057, 1064

(10th Cir. 2007). “We may uphold the grant of a motion to dismiss if, viewing

the well-pleaded factual allegations in the complaint as true and in the light most

favorable to the non-moving party, the complaint does not contain ‘enough facts

to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic

Corp. v. Twombly, -- U.S. --, 127 S.Ct. 1955, 168-69, 1974 (2007)). “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and conclusions, and a
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formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp., 127 S.Ct. at 1964-65 (citations omitted). “Factual allegations

must be enough to raise a right to relief above the speculative level . . . on the

assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Id. at 1965 (citation omitted). Burris’ complaint and amended complaint

failed to meet these basic requirements. Neither filing identifies which of his

civil rights were allegedly violated or an evidentiary basis for the alleged

violations. 

B. Motion for a Three-Judge Panel

We also construe the scattered allegations in Burris’ appellate brief

concerning the denial of his motion for a three-judge panel to be an appeal from

that decision. “We review a district court’s interpretation of federal statutes and

regulations de novo.” United States v Davis, 339 F.3d 1223, 1226 (10th Cir.

2003) (quotation omitted). Burris has “neither challenged the apportionment of

any congressional districts or statewide legislative bodies nor alleged any facts

for which an applicable congressional act would require the convening of a threejudge district court.” Tillett v. Lujan, 931 F.2d 636, 642 (10th Cir. 1991). The 
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district court did not err in failing to grant Burris’ motion to convene a threejudge district court. 

AFFIRMED. 

ENTERED FOR THE COURT

Terrence L. O’Brien

Circuit Judge