OpenJurist

1 F3d 1249 Nutter v. Wefald

1 F.3d 1249

Colleen M. NUTTER, Plaintiff-Appellant,
v.
Jon WEFALD, President, Kansas State University; Kansas
State University, and its representatives; Lou
Ann Smith; United States of America,
Defendants-Appellees.

No. 92-3414.

United States Court of Appeals, Tenth Circuit.

July 26, 1993.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

1

Before BALDOCK and KELLY, Circuit Judges, and BENSON,* District Judge.

2

ORDER AND JUDGMENT**

3

BENSON, District Judge.

4

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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

5

Plaintiff commenced this action pro se to obtain redress on a number of civil rights and state law claims arising out of her unsuccessful attendance of Kansas State University (KSU) in 1985-86. She alleged that KSU breached its duty to accommodate her stress-related handicap, forcing her withdrawal from school; that Judith E. Banks, regional civil rights director for the United States Department of Education,1 failed properly to investigate and prosecute her resulting federal discrimination charge against KSU, defaming her in the process; and that Lou Ann Smith n/k/a Lou Ann Clintsman Thoms, investigating commissioner for the Kansas Commission on Civil Rights, knowingly made an erroneous finding of no probable cause on her state discrimination complaint against KSU.

6

For reasons explained at length in its memorandum and order, the district court granted summary judgment in favor of defendants on various grounds, and then denied as futile plaintiff's motion to amend her thrice-amended complaint to include additional defendants. This appeal followed, challenging both rulings.

7

We review the district court's summary judgment determination de novo, Long v. United States, 972 F.2d 1174, 1177 (10th Cir.1992), and its denial of amendment for an abuse of discretion, id. at 1183. Upon consideration of the materials submitted by the parties, we affirm both rulings for substantially the reasons stated in the district court's thorough and thoughtful order.

8

Sometime after her appeal was docketed, plaintiff filed with this court a "Motion for a New Trial," citing Fed.R.Civ.P. 59(2). This motion, which merely encloses several medical articles relating to plaintiff's handicap, is both procedurally inappropriate in this appellate court and substantively without merit.

9

Accordingly, the judgment of the United States District Court for the District of Kansas is AFFIRMED, and plaintiff's motion for new trial is DENIED.

10

The mandate shall issue forthwith.

*

Honorable Dee V. Benson, District Judge, United States District Court for the District of Utah, sitting by designation

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

1

The United States was substituted as party defendant for Ms. Banks pursuant to 28 U.S.C. Sec. 2679(d)