FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              December 4, 2015
                     UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                 Clerk of Court
                                  TENTH CIRCUIT



KATHERINE HAN-NOGGLE, as
daughter and next of kin to Mary Y.C.
Han, deceased; ELIZABETH
WALLBRO, as Personal Representative
of the Estate of Mary Y.C. Han,

       Plaintiffs - Appellants,
v.                                                      No. 14-2156
CITY OF ALBUQUERQUE; ROBERT                   (D.C. No. 1:13-CV-00894-CG-GBW)
PERRY, in his individual capacity and                      (D. N.M.)
official capacity as the City Attorney;
CHIEF RAYMOND D. SCHULTZ, in his
individual and official capacity as the
Chief of Police of the Albuquerque Police
Department for municipal and supervisory
claims; DEPUTY CHIEF PAUL FEIST;
DEPUTY CHIEF ELIZABETH PAIZ;
DEPUTY CHIEF ALLEN BANKS, in
their individual and official capacities as
supervisors and trainers within the
Albuquerque Police Department; MARC
ADAMS, in his individual and official
capacity as manager, investigator, and
trainer of the Albuquerque Police
Department Crime Lab; FIELD
INVESTIGATOR MICHAEL MUNIZ, in
his individual
and official capacity; OFFICER TRICIA
K. HOFFMAN, in her individual and
offical capacity; TODD J. WILHAM,
Albuquerque Police Department Public
Information Officer in his individual and
official capacity; JOHN DOES 1!2,

      Defendants - Appellees.
KATHERINE HAN-NOGGLE, as
daughter and next of kin to Mary Y.C.
Han, deceased; ELIZABETH
WALLBRO, as Personal Representative
of the Estate of Mary Y.C. Han,

      Plaintiffs-Appellees/Cross-
      Appellants,
v.                                                    Nos. 15-2051 and 15-2052
CITY OF ALBUQUERQUE; DARREN                       (D.C. No. 1:13-CV-00894-CG-GBW)
WHITE, in his individual and official                          (D. N.M.)
capacity as Public Safety Director for the
City of Albuquerque; ROBERT PERRY,
in his individual capacity and official
capacity as the City Attorney; CHIEF
RAYMOND D. SCHULTZ, in his
individual and official capacity as the
Chief of Police of the Albuquerque Police
Department for municipal and supervisory
claims; DEPUTY CHIEF PAUL FEIST;
DEPUTY CHIEF ELIZABETH PAIZ;
DEPUTY CHIEF ALLEN BANKS, in
their individual and official capacities as
supervisors and trainers within the
Albuquerque Police Department; MARC
ADAMS, in his individual and official
capacity as manager, investigator, and
trainer of the Albuquerque Police
Department Crime Lab; FIELD
INVESTIGATOR MICHAEL MUNIZ, in
his individual and official capacity;
OFFICER TRICIA K. HOFFMAN, in her
individual and official capacity; TODD J.
WILHAM, Albuquerque Police
Department Public Information Officer, in
his individual and official capacity; JOHN
DOES 1-2,

      Defendants-Appellants/Cross-


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           Appellees.

 ---------------------

 CAMPAIGN LEGAL CENTER,

           Movant.


                               ORDER AND JUDGMENT*


Before BRISCOE, McKAY and McHUGH, Circuit Judges.



       Katherine Han-Noggle, the daughter and next-of-kin of Mary Y.C. Han, and

Elizabeth Wallbro, Han’s sister and the personal representative of her estate (Plaintiffs),

appeal the district court’s dismissal of their claims brought pursuant to 42 U.S.C. § 1983

(Case. No. 14-2156). Plaintiffs alleged that the Defendants, City of Albuquerque (City)

and nine of its officers (City Officers) improperly and inadequately investigated Han’s

death, which resulted in the denial of Plaintiffs’ constitutional rights to due process and

access to the courts. On motion of the City Officers, the district court applied qualified

immunity to dismiss the federal claims and then remanded the state law claims. The

district court subsequently awarded attorneys’ fees to the Defendants, which has




       *
        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.

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generated both an appeal by the Defendants (Case No. 15-2051) and a cross-appeal by

Plaintiffs (Case No. 15-2052).

                                     BACKGROUND

       Plaintiffs’ complaint alleged that Han was found dead inside her car in her garage.

Han was discovered by her law partner, Paul Kennedy, who went to her home to check on

her after she uncharacteristically did not call her office. Kennedy called 9-1-1 to report

what “look[ed] like an accidental suicide.” 14-2156 Aplt. App. at 11.1 He reported that

he had opened the car door to check on Han and discovered that “she was not breathing,

was ‘in rigor’ and ‘stiff.’” 

reported that all four car windows were

open when he arrived and that the engine was turned off, though “[he] guess[ed] it had

been” running. 

the Albuquerque Police Department (APD) responded

to the call.

       Plaintiffs’ complaint alleged that initially Han’s death was treated as an

“unattended death/dead on arrival.” 

But after “several high-ranking members

of the APD and high-ranking civilian employees of the City . . . arrived on the scene,” her

death was treated as a suicide. 

Because of this change in classification, many

investigative procedures were not followed, which Plaintiffs contend could have revealed

whether Han’s death was the result of foul play. “Specifically, neighbors, family, and

close friends were not interviewed. Physical evidence was not collected. Fingerprints


       1
       Because this appeal involves multiple cases with separate appendices, citations to
an appendix are preceded by the corresponding case number.

                                             4
were not preserved. No effort was made to determine the identity and interview the last

person who may have seen . . . Han alive.” 

During the investigation, the City

Officers allowed between twenty-six to fifty individuals to “trample the scene,” which

contaminated evidence and hindered the effectiveness of the investigation. 

They

also failed to inventory Han’s expensive diamond rings, her personal cell phone, and her

laptop, all of which disappeared during the investigation.

       Two and a half years after Han’s death, the New Mexico Attorney General’s

Office examined her death and the APD’s subsequent investigation. It concluded, among

other things, that “the death scene was terribly mishandled by the [APD] due to

inappropriate directions from high-ranking police and civilian administrators with the

city” and that “fundamental police procedures for suspicious deaths were inexplicably not

followed.” 

       Plaintiffs initiated this lawsuit in state court alleging, among other things, that the

City Officers’ inadequate investigation violated their right to access to the courts by

preventing them from bringing a wrongful death action. Defendants removed the case to

federal court and then filed a motion to dismiss. The district court dismissed the federal

claims, remanded the state claims, and entered judgment in favor of all Defendants. The

Defendants subsequently moved for an award of attorneys’ fees under 42 U.S.C. § 1988,

requesting more than $60,000 in fees. After reducing the fees for non-frivolous claims,

overbilling, duplicative work, and equitable considerations, the district court awarded




                                               5
$5,000 in fees. Plaintiffs appeal the dismissal of their right of access claim,2 and both

parties appeal the fee award.

                                      JURISDICTION

       The City Officers suggest that we are without jurisdiction because the district

court’s ruling was not a final, appealable order for purposes of 28 U.S.C. § 1291. “[I]n

this circuit, ‘whether an order of dismissal is appealable’ generally depends on ‘whether

the district court dismissed the complaint or the action. A dismissal of the complaint is

ordinarily a non-final, nonappealable order (since amendment would generally be

available), while a dismissal of the entire action is ordinarily final.’” Moya v.

Schollenbarger, 

, 448–49 (10th Cir. 2006) (quoting Mobley v. McCormick,

, 339 (10th Cir. 1994)). In making this distinction, “we look to the substance

and objective intent of the district court’s order, not just its terminology.” 

“In

cases where the district court order is ambiguous, our approach is to determine as best we

can whether the district court’s order evidences an ‘inten[t] to extinguish the plaintiff’s

cause of action,’ and ‘whether [the] plaintiff has been effectively excluded from federal

court under the present circumstances.’” 

(alterations in original) (citation

omitted) (first quoting Landmark Land Co. of Okla., Inc. v. Buchanan, 

, 720

       2
         The complaint separates this claim into two counts. Count I is titled “Violation
of substantive and procedural due process” and Count II is titled “Interference with
plaintiffs’ right of access to the courts.” 14-2156 Aplt. App. at 32, 34. However,
Plaintiffs’ briefs and statements made at oral argument make clear that both counts assert
the same claim: interference with Plaintiffs’ right of access to courts, which arises (in
part) from the Due Process Clause of the Fourteenth Amendment. Accordingly, we will
treat these claims as one claim.

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(10th Cir. 1989), abrogated on other grounds by Fed. Lands Legal Consortium ex rel.

Robart Estate v. United States, 

, 1195–96 (10th Cir. 1999); and then

quoting Facteau v. Sullivan, 

, 1319 (10th Cir. 1988)).

       The City Officers emphasize that some of Plaintiffs’ claims were dismissed for

failure to allege sufficient facts, meaning that an amendment to add additional factual

allegations could potentially cure the deficient complaint. A dismissal for this reason

generally suggests the court intended to dismiss only the complaint, rather than the case

as a whole. See 

However, other circumstances are present here which point

toward the conclusion that the case was dismissed, not just the complaint. First, the order

granting dismissal did not mention a leave to amend, which would have been required

absent the opposing party’s consent. See 

(no reference to leave to amend, at

least when required for the case to proceed, “is at least some indication” that the court

intended finality). Second, the district court filed a separate document titled “Final

Judgment” on the same day that it entered the order. 14-2156 Aplt. App. at 164–65; see

Utah v. Norton, 

, 1286 (10th Cir. 2005) (“[A] judgment is made final when

it is ‘set forth on a separate document’ as is required by Fed.R.Civ.P. 58(a).”).

       The City Officers also note the district court’s failure to specifically rule on the

claims against the City. Failing to resolve all claims against all defendants suggests a

lack of finality. See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however

designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer

than all the parties does not end the action as to any of the claims or parties.”); Norton,

                                              

(“A final judgment is one that terminates ‘all matters as to all parties

and causes of action.’” (quoting Dodge v. Cotter Corp., 

, 1221 (10th Cir.

2003))). But other facts presented here suggest that the district court’s failure to specify

that it was also dismissing the claims against the City was inadvertent. Although the

court’s order does not address these claims, the judgment, which was entered that same

day, “dismisse[d] all [federal] claims against all Defendants.” 14-2156 Aplt. App. at 165

(emphasis added). Additionally, in granting qualified immunity to the City Officers, the

court concluded that no constitutional violation occurred. It follows that if the City

Officers’ actions did not violate Plaintiffs’ rights, the City could not be held liable either.

Jennings v. City of Stillwater, 

, 1205 n.1 (10th Cir. 2004) (“[A]

municipality cannot be liable for constitutional violations unless its officers committed a

constitutional violation.”).

       The City Officers also argue that the district court’s failure to resolve the state law

claims also suggests a lack of finality. We note that although the district court did not

resolve the merits of the state law claims, it did address these claims by remanding them

to state court and thereby removing them from federal jurisdiction. For purposes of

finality, the remand of the state law claims left nothing for the federal district court to

adjudicate. See Hyde Park Co. v. Santa Fe City Council, 

, 1209 n.1 (10th

Cir. 2000) (“Federal appeals courts have consistently held . . . that they have jurisdiction

to review a district court order dismissing federal claims on the merits where the district




                                               8
court subsequently exercised its discretion under [28 U.S.C. ] § 1367 to remand

supplemental state law claims to state court.”).

          Other circumstances also suggest that the district court intended to extinguish the

Plaintiffs’ federal causes of action. Namely, it awarded attorneys’ fees in the case, cf.

(ordering each party to “bear their own costs and fees” indicates

finality), and its dismissal was based on qualified immunity, see 

(granting

qualified immunity suggests intent to dismiss the entire action). We conclude that the

district court intended to resolve the entire case, leaving nothing further for resolution in

federal district court. Accordingly, we conclude we have jurisdiction to proceed to the

merits.

                                 RIGHT OF ACCESS CLAIM

          Plaintiffs allege that the City Officers inadequately investigated Han’s death,

which prevented them from bringing a wrongful death claim and thus interfered with their

right of access to the courts. The district court dismissed this claim after concluding that

the complaint failed to “provide sufficient notice of the grounds for a wrongful death suit

to a potential defendant.” 14-2156 Aplt. App. at 154. We review the dismissal de novo.

Thomas v. Kaven, 

, 1190 (10th Cir. 2014). In doing so, we accept all well-

pled factual allegations as true and view them in the light most favorable to the Plaintiffs.

Defendants’ motion to dismiss, Plaintiffs’ complaint must contain

sufficient allegations to “state a claim to relief that is plausible on its face.” Ashcroft v.




                                                9
Iqbal, 

, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 

,

570 (2007)). Applying that standard, we affirm the dismissal.

       The right of access to the courts “is ancillary to the underlying claim, without

which a plaintiff cannot have suffered injury by being shut out of court.” Christopher v.

Harbury, 

, 415 (2002). Accordingly, “the underlying cause of action . . . is

an element that must be described in the complaint, just as much as allegations must

describe the official acts frustrating the litigation.” 

Supreme Court did

not “describe pleading standards for the entire spectrum of access claims,” it did

emphasize “the need for care in requiring that the predicate claim be described well

enough to apply the ‘non-frivolous’ test and to show that the ‘arguable’ nature of the

underlying claim is more than hope.” 

Moreover, it linked the pleading

requirements for the underlying claim with the standards of Federal Rule of Civil

Procedure 8(a). 

       The complaint at issue here identifies only one potential underlying cause of

action: a wrongful death claim. Under New Mexico law, the personal representative of an

estate may bring a wrongful death claim where the decedent’s death was “caused by the

wrongful act, neglect or default of another . . . [and] is such as would, if death had not

ensued, have entitled the party injured to maintain an action and recover damages in

respect thereof.” N.M. STAT. ANN. §§ 41-2-1 (stating the cause of action), 41-2-3




                                              10
(identifying the personal representative as the proper party to bring such a claim).3 The

complaint provides no theory as to how Han died or who allegedly caused her death, let

alone the type of action that Han would have had against the party at fault had she

survived. The complaint only generally identifies a wrongful death claim, which is not

enough to meet the pleading requirements of Rule 8. See 

(Rule 8

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” (citation omitted) (quoting 

)).

                                   ATTORNEYS’ FEES

       We review an award of attorneys’ fees for abuse of discretion except “to the extent

that the district court’s decision was premised on an error of law,” in which case we

review de novo. Clajon Prod. Corp. v. Petera, 

, 1581 (10th Cir. 1995).

Attorneys’ fees can only be awarded to a defendant who prevails on civil rights claims

that are “frivolous, unreasonable, or without foundation” 

v. Rowe,

, 14 (1980)). If a case involves multiple claims, only some of which are

frivolous, the court can grant fees “only for costs that the defendant would not have

incurred but for the frivolous claims.” Fox v. Vice, 

, 2211 (2011).

       The district court found that the due process claim (Count I) was frivolous, but that

the remaining four claims, although lacking sufficient allegations to survive the City

       3
        The standing of Han-Noggle to bring this claim was disputed below, but on
appeal she concedes that a wrongful death claim can only be brought by the personal
representative of the estate.

                                             11
Officers’ motion to dismiss, were not frivolous such that “‘no reasonable attorney’ would

bring suit based on the facts alleged.” 15-2051 & 15-2052 Aplt. App. at 410–12 (quoting

Crabtree ex rel. Crabtree v. Muchmore, 

, 1479 (10th Cir. 1990)). The

district court also found that the official capacity claims were frivolous, but that they did

not result in “significant additional expenses” because they were “duplicative of the

claims against the City.” 

414. Based on these findings, the district court

reduced the requested fees by eighty percent. 

The court then further

reduced the amount of fees in light of overbilling, duplicative work, and equitable

considerations, ultimately concluding that $5,000 was a reasonable award.

       Both parties contend that the district court erred in finding that one of the five

claims was frivolous: Defendants argue that all of Plaintiffs’ federal claims were

frivolous, while Plaintiffs suggest that none were. Defendants further challenge the

district court’s other considerations, as well as the process by which the district court

reached the ultimate award. Although we may have reached a different conclusion in a

different manner, we conclude that the district court did not abuse its discretion. We

affirm the fee award.4




       4
         The Campaign Legal Center, a nonprofit organization that litigates voting rights
matters and who is a party to an appeal from attorneys’ fees in a different case against the
City, has moved to file an amicus curiae brief in the attorneys’ fees appeals. We deny the
motion because the Center’s case is too dissimilar and therefore its brief is not helpful in
resolving the issues presented here.

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                                      CONCLUSION

       The district court rulings are final and appealable, thereby providing us with

appellate jurisdiction under 28 U.S.C. § 1291. We conclude that the district court did not

err in dismissing Plaintiffs’ denial of access claim. Nor did the district court abuse its

discretion in awarding the Defendants $5,000 in attorneys’ fees. Accordingly, we affirm.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Circuit Judge




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