Starnes v. Smith

37 F.3d 1455 David Clyde STARNES, Shannon Rumley, Plaintiffs-Appellants, v. Ivan SMITH, Detective, in his individual and official capacity; Desi GARCIA, Sergeant, in his individual and official capacity, Defendants-Appellees, and City of Albuquerque, a municipality within the State of New Mexico; Thrift Town, Inc., a New Mexico corporation; Association for Retarded Citizens of Albuquerque, Inc., a New Mexico corporation, Defendants. No. 93-2307. United States Court of Appeals, Tenth Circuit. Oct. 20, 1994. — 1 — Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-91-761-LFG). — 2 — Paul J. Kennedy, Albuquerque, NM, for plaintiffs-appellants. — 3 — Luis Robles, Asst. City Atty., Albuquerque, NM, for defendants-appellees Ivan Smith and Desi Garcia. — 4 — Before TACHA, BRORBY, Circuit Judges, and KANE,* Senior District Judge. — 5 — KANE, Senior District Judge. — 6 — Plaintiffs David Starnes and Shannon Rumley appeal from a summary judgment dismissing their claims against defendants Desi Garcia and Ivan Smith.1 Plaintiffs argue that 1) they were denied an opportunity to respond adequately to defendants' motion for summary judgment, 2) certain material facts remain disputed, and 3) the district court's grant of summary judgment to defendants was inconsistent with applicable case law. — 7 — Plaintiffs' brief fails to comply with various rules found in Fed.R.App.P. 28 and 10th Cir.R. 28.2. In particular, the brief contains no statement of subject matter and appellate jurisdiction, as required by Fed.R.App.P. 28(a)(2); no separate statement of the issues presented for review, as required by Fed.R.App.P. 28(a)(3); and no statement of the applicable standard of review before discussion of each issue in the argument portion of the brief, as required by 10th Cir.R. 28.2(b). Of particular concern is plaintiffs' failure to include a statement of facts with supporting references to the record, as required by Fed.R.App.P. 28(a)(4). — 8 — Nevertheless, we have read and considered plaintiffs' arguments and are convinced that even if their brief had been in compliance with these rules, we would find their arguments to be meritless. See SEC v. Thomas, 965 F.2d 825, 827 (10th Cir.1992). Therefore, the judgment of the United States District Court for the District of New Mexico is AFFIRMED. The matter is referred to the clerk for institution of disciplinary proceedings against Attorney Paul J. Kennedy for repeated filings of an appellant's brief in violation of Fed.R.App.P. 28 and 10th Cir.R. 28.2, as set forth above. Footnotes [-s] * Honorable John L. Kane, Jr., Senior District Judge, United States District Court for the District of Colorado, sitting by designation [1] 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