UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ PHILLIP DAVID HASKETT, Plaintiff - Appellant,

v. GARY WOODROW FLANDERS; DOMINICK LUNA; COLORADO SPRINGS POLICE DEPARTMENT; CITY OF COLORADO SPRINGS, Defendants - Appellees. No. 15-1428 (D.C. No. 1:13-CV -03392-RBJ-KLM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , HOLMES , and McHUGH , Circuit Judges.

________________ _________________ Phillip David Haskett and Gary Woodrow Flanders have a c ontentious history dating back more than a decad e. This chapter of their litigation saga involves three state-law claims, brought by Mr. Haskett agains t Mr. Flanders. After the clerk of the district court had summoned the jury venire , the parties stipulat ed that the claims could be tried to the bench. On one clai m, the district court found in favor of

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### June 17, 2016 Elisabeth A. Shumaker Clerk of Court2 Mr. Haskett and awarded him damages, but on the other claims it found in favor of Mr. Flanders. The district court also assessed costs agai nst Mr. Haskett for the costs of summoning the jury. Mr. Haskett appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND The case arises from a November 1, 2012, incident in Colorado Springs, Colorado. Mr. Flanders sa w Mr. Haskett in line at th e post office. Allegedly thinking Mr. Haskett’s vehicle might be an asset available to settle a debt owed to him, Mr. Flanders took pict ures of the vehicle and of Mr. Haskett himself when he emerged from the post office. Then, as the district cour t stated, “depending on whose testimony is believed, one or both of th ese gentlemen made unpleasant remarks.” R., Vol. I at 1394. The district court foun d that these remarks included statements by Mr. Haskett threatening viol ence against Mr. Flanders. Mr. Flanders called 911 and said Mr. Ha skett had threatened to kill him and then made a police report rep eating that allegation. Afte r the investigating officer interviewed a witness who claimed to ha ve heard Mr. Haskett make threatening statements to Mr. Flanders , the officer filed a charge of harassment against Mr. Haskett. Mr. Flanders later informed a mutual business associate that Mr. Haskett had implicated th e associate in a murder plot against Mr. Flanders. The harassment charge eventually was dismissed, although not before costing Mr. Haskett more than $12,000 in fees and expenses. And Mr. Haskett allegedly lost a $90,000 deal with the busine ss associate due to Mr. Fla nders’ murder-plot remark.3 Relying on diversity juri sdiction under 28 U.S.C. § 1332, Mr. Haskett sued Mr. Flanders for defamation (based on the murder-plot stat ement), malicious prosecution (based on the harassment charge ), and interference with contractual relations (for the loss of the deal). After a bench trial, the district cour t found that Mr. Ha skett had proven his defamation claim and awarded him $500 in compensatory damages and $1,000 in punitive damages. The district court furt her found that Mr. Haskett had failed to prove malicious prosecution and interferen ce-with-contract and granted judgment to Mr. Flanders on those claims. Finally, the district court ordere d Mr. Haskett to pay jury costs in the amount of $1,54 7.65 under 28 U.S.C. § 1332(b). II. DISCUSSION Both parties appear pro se be fore this court, as they di d in the district court. “Although a pro se litigant’s pl eadings are to be construed lib erally and held to a less stringent standard than formal pleadings dr afted by lawyers, this court has repeatedly insisted that pro se partie s follow the same rules of procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005) (brackets, citation, and internal quot ation marks omitted). “[T]he court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Id.4 A. Evidentiary Issues Mr. Haskett challenges several rulings on motions in limine. Our review is for abuse of discretion. See Cavanaugh v. Woods Cross City , 718 F.3d 1244, 1249 (10th Cir. 2013). 1. Mr. Flanders’ Evidence (Issues 2 and 4) Mr. Haskett complain s that the district court allo wed Mr. Flanders to proceed at trial even though he failed to make timely pre-trial di sclosures under Fed. R. Civ. P. 26(a)(3). He also compla ins that the district court a llowed Mr. Flanders to testify about matters as to which, when being de posed, Mr. Flanders had said he had no recollection. Mr. Haskett fi led two motions in limine on these issues, seeking to strike Mr. Flanders’ untimely pre-trial e xhibit list, to excl ude all evidence and witnesses Mr. Flanders might offer at tr ial, and to preclude Mr. Flanders from testifying about any matter that he had said he did not recall when being deposed. The district court denied the motions in limine at the beginning of the trial. The record, however, does not include the trial transcript—Mr. Haskett asserts that “since he lacked funds to purchase a transcript of the trial proceedings, [he] saw no reason to submit a transcript.” Aplt. Openi ng Br. at 11 (footnote omitted). It is the appellant’s duty to “provide a ll portions of the transcript n ecessary to give the court a complete and accurate record of the proceedings related to the issues on appeal.” 10th Cir. R. 10.1(A)(1). Without the transc ript, we do not know wh at reasons, if any, the district court gave for denying the moti ons in limine. Nor can we evaluate the content or effect of any testimony or evidence received at trial. Thus, it is impossible5 for us to consider whether denying the mo tions was harmless or to “reverse the District Court’s order where it was pred icated on anything testified to by . . . Flanders,” as Mr. Haskett re quests in his fourth issue. Aplt. Opening Br. at 21. Because the record is insufficient for review of the d ecisions regarding the motions in limine, we must affirm. See Bolden v. City of Topeka , 441 F.3d 1129, 1151 (10th Cir. 2006); McGinnis v. Gustafson , 978 F.2d 1199, 1201 (10th Cir. 1992). 2. Photographs (Issue 5) Mr. Haskett also complain s that the district court allowed Mr. Flanders to introduce into evidence photographs that Mr. Flanders failed to produce in digital format until the last minute. (Mr. Haskett wanted a digita l media expert to determine whether the eight photographs that Mr. Flande rs had produced in hard copy were all the photographs that he had taken, or whet her Mr. Flanders had deleted or concealed other photographs.) Mr. Haskett filed a mo tion in limine seeking exclusion of the photographs. The district court denied the motion in a written order, allowing Mr. Flanders to offer the ei ght photographs and allowing Mr . Haskett to “attempt to show that there were othe r photographs taken, and that the defendant refused to produce his camera equipment so that the existence or non-existence of other photographs could be determin ed.” R., Vol. I at 974. Mr. Haskett’s opening brief does not explain why he believes this rulin g was an abuse of discretion, and we perceive no abuse. Mr. Fla nders was restricted to pres enting the photographs that he originally produced, and Mr. Haskett was allowed to make th e spoliation argument that he wished to present. And as disc ussed above, the lack of a trial transcript6 means that we cannot evaluate any eviden ce introduced or arguments made on this point at trial. Accordi ngly, we must affirm. See Bolden , 441 F.3d at 1151. B. District Court’s Findings (Issue 3) Mr. Haskett challenges certain of the district court’s findings regarding his malicious prosecution claim. “I n an appeal from a bench tria l, we review the district court’s factual findings for clear error and its legal conclusions de novo.” La Resolana Architects, PA v. Reno, Inc. , 555 F.3d 1171, 1177 (10th Cir. 2009) (internal quotation marks omitted). A Colorado malicious prosecution claim has the following elements: “(1) the defendant contributed to bringing a prior ac tion against the plain tiff; (2) the prior action ended in favor of the plaintiff; (3) no probable cause; (4) malice; and (5) damages.” Hewitt v. Rice , 154 P.3d 408, 411 (Colo. 200 7). The district court held that the claim failed on the element of “no probable cause. ” Mr. Haskett argues that in light of certain specific factual findings, the district court could not then logically conclude that he failed to establish a lack of probable cause. The district court found: “[I]t is more probable than not that Flanders was ‘in [Haskett’s] face;’ that his conduct was offe nsive; and that he was inviting trouble,” R., Vol. I at 1400, and “I doubt that Flande rs thought that Haskett’s statements were true threats on his life. . . . [I ]t is more probable than not that Flanders interpreted the statements as a hothead’s blow ing smoke. . . . [I]t is more likely that he was angry, and that, after reflection, he decided that the incident offered him an opportunity to cause Haskett so me trouble,” id. at 1401-02. Mr. Haskett as serts that “[t]hese very7 specific factual findings make it tautologically impossible that the Court could also find that Flanders had had probable cause to charge Hask ett with harassment.” Aplt. Opening Br. at 19. The district court also found, however, that “it is more likely than not that Haskett did make threateni ng statements to Flanders, not necessarily the exact statements that Flanders wrot e down . . . , but statements threatening violence against Flanders.” R., Vol. I at 1401. It held that Mr. Haskett failed to establish a lack of probable cause because, even though ma lice was at least one motivator for Mr. Flanders’ police report, “Haskett’s actions and statements in front of the Post Office plainly were probably made with the in tent to harass, annoy or alarm Flanders. Haskett’s conduct could reasonably be inte rpreted as insults, taunts, or challenges made in a manner likely to pr ovoke a disorderly response.” Id. at 1406-07. Such conduct, the district cour t concluded, met the defin ition of harassment under the Colorado Springs municipal code. We disagree with Mr. Haskett’s percep tion that the district court’s findings and conclusions are internally incompatible . The district court’s findings regarding Mr. Haskett’s conduct adequate ly support its conclusion re garding probable cause. We therefore decline Mr. Ha skett’s invitation to subs titute our judgment for the district court’s and to ente r judgment for him on his ma licious prosecution claim. We also decline to consider this argument as a request for a directed verdict, as Mr. Haskett argues in his repl y brief. Arguments not raised in an opening brief are waived. Reedy v. Werholtz , 660 F.3d 1270, 1274 (10th Cir. 2011).8 C. Jury Costs (Issue 1) Mr. Haskett argues that the district cour t erred in assessing jury costs because the week before the scheduled trial, he waived his right to a jury. He states that this waiver satisfied a local rule allowing assess ment of jury costs when the court is not timely notified before trial that a suit has been resolved. See D.C.COLO.LCivR 54.2. He further surmises that, given his waiver , there could have been no jury summoned for his trial, and so he was improperly asse ssed the costs of anot her jury called for that day. And he asserts that the amount assessed in jury costs—$1,547.65—was “improbably proximate to the damages award.” Ap lt. Opening Br. at 10. Mr. Haskett mistakenly focu ses on the local rule. Th e district court did not assess jury costs under th at rule, but instead base d its decision on 28 U.S.C. § 1332(b), which provides, “whe re the plaintiff who files th e case originally in the Federal courts is finally adjudged to be enti tled to recover less than the sum or value of $75,000, . . . the district court . . . may impose costs on the plaintiff.” Mr. Haskett’s opening brief does not address § 1332(b); hi s only arguments regarding that statute appear in his reply brief. But as stated, issues not raised in an opening brief are waived. Reedy , 660 F.3d at 1274. Also, it does not appear that Mr. Haskett raised his belated § 1332(b) arguments in the Fed. R. Ci v. P. 59(e) motion regarding the jury-cost award that he file d in the district court. Ge nerally, “[a]n issue is waived if it was not raised belo w in the district court,” Wilburn v. Mid–South Health Dev., Inc. , 343 F.3d 1274, 1280 (10th Cir. 2003), and Mr. Haskett gives us no reason not to apply the general rule.9 Mr. Haskett, however, did assert both in his opening brief and before the district court that the veni re was summoned for another trial and the amount assessed for jury costs was improbably close to the amount of his damages award. We therefore will review these ar guments, applying an abuse-o f-discretion standard. See Sally Beauty Co. v. Beautyco, Inc. , 372 F.3d 1186, 1189 (10t h Cir. 2004) (stating that a jury-cost order is reviewed for abuse of discretion). The district court’s clerk certified that costs in the amount of $1,547. 65 were incurred for juro rs called for this case. Mr. Haskett’s arguments to the cont rary are based only on his own speculation and innuendo. Such unsupported allegations are insufficient to show that the district court abused its discretion with re gard to the jury-cost award. D. Remaining Issues (Issues 6 and 7) The statement of issues in Mr. Haskett’s opening brie f lists seven issues. But the brief does not present any argument regard ing the sixth or seventh issues. Thus, these issues are waived fo r insufficient briefing. See Reedy, 660 F.3d at 1274 (“It is insufficient merely to state in one’s brief that one is appealing an adverse ruling below without advancing r easoned argument as to the grounds for the appeal.” (internal quotation ma rks omitted)). III. CONCLUSION Mr. Flanders’ response-brie f request for an award of costs and expenses for10 responding to frivolous arguments is denied . Fed. R. App. P. 38 requires such a request to be made in a separa te filing. The district court’ s judgment is affirmed.

Entered for the Court
Carolyn B. McHugh Circuit Judge