Perry v. Encore at Boulevard One: Surviving § 1915 Screening Does Not Bar Later Rule 12(b)(6) Dismissal; Completed Eviction Moots TRO

1) Introduction

Perry v. Encore at Boulevard One LLC (10th Cir. Mar. 6, 2026) arises from an eviction dispute litigated in state court while the tenant, Shannon Perry, pursued parallel federal claims against her landlord entity and individuals (Encore at Boulevard One LLC; Ricci Donati; Jessica Brandl; Mark T. Schetter). Proceeding in forma pauperis and pro se, Perry’s federal complaint invoked the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), the Violence Against Women Act (VAWA), and 42 U.S.C. § 1983 (including a Double Jeopardy theory).

The district court screened the complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) and D. Colo. L. Civ. R. 8.1(a), allowed only the FHA claim to proceed past screening, denied a temporary restraining order (TRO) as moot after the eviction occurred, and ultimately dismissed the FHA claim on defendants’ motion. On appeal, Perry challenged (i) the denial of a TRO, (ii) summary dismissal of her non-FHA claims, (iii) dismissal of the FHA claim, and (iv) several process-related rulings (including issues about discovery timing, reconsideration, guardian ad litem/counsel, and record supplementation).

2) Summary of the Opinion

The Tenth Circuit affirmed the dismissal and the denial of reconsideration. Key holdings:

  • The request for a TRO to stop an eviction became moot once the eviction occurred.
  • A claim surviving § 1915 screening can still be dismissed later under Rule 12(b)(6) after adversarial briefing.
  • Appellate challenges were waived where the appellant asserted “clear error” without explaining why, or raised arguments too late (in a reply brief).
  • Attempts to supplement the appellate record were denied where relevance was unexplained or the invoked procedural vehicles were inapplicable.

The court also granted Perry leave to proceed in forma pauperis on appeal, denied a request to “certify” that status, and disposed of multiple ancillary motions.

3) Analysis

A. Precedents Cited

The decision is an “Order and Judgment” designated nonprecedential (except under law of the case, res judicata, and collateral estoppel), but it relies on a set of frequently invoked procedural precedents that shape federal appellate review and district-court case management.

1. Mootness of TRO after eviction: Tymiak v. Omodt

The panel treated the request to halt the eviction as moot because the eviction occurred before the federal court ruled. It cited Tymiak v. Omodt, 676 F.2d 306, 308 (8th Cir. 1982), for the straightforward proposition that an injunction to prevent ejectment is moot once ejectment has happened. The precedent supplies a clean justiciability rule: when the sought interim relief can no longer be granted (because the event has already occurred), the request is no longer a live controversy.

2. Reply-brief forfeiture: Becker v. Kroll

Perry argued (in her reply brief) that the district court should not have dismissed the FHA claim after letting it survive screening. The panel held this argument came too late, citing Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007), for the rule that arguments not raised in the opening brief are forfeited/waived. The citation underscores the appellate system’s emphasis on fair notice and orderly presentation: the opening brief frames the issues, and the reply brief is not an opportunity to raise new ones.

3. Screening vs. adversarial motion practice: Buchheit v. Green and Garewal v. Sliz

The court explained that § 1915 screening is non-adversarial: it occurs “without input from the defendants,” quoting Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir. 2012). That distinction matters because screening asks whether the complaint is plainly defective, while Rule 12(b)(6) dismissal often benefits from focused adversarial briefing.

The panel then relied on Garewal v. Sliz, 611 F. App’x 926, 931 (10th Cir. 2015) (unpub.), for the specific point that a district court’s decision not to summarily dismiss at screening does not prevent later dismissal for failure to state a claim. Even though Garewal is unpublished, the panel treated it as persuasive confirmation of a practical case-management principle: early screening is a gatekeeping step, not an irrevocable merits determination.

4. Waiver through inadequate briefing: Nixon v. City & Cnty. of Denver and Murrell v. Shalala

For multiple issues (ADA and Double Jeopardy rulings; denial of reconsideration; appointment of counsel/guardian-ad-litem framing), the panel found waiver because the appellant offered conclusions without developed reasoning. It cited Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015), and Murrell v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994), to reinforce that appellate courts are not required to craft arguments for litigants. The precedents operate as an institutional boundary: even for pro se parties, meaningful review requires identifying error and explaining why it is error.

5. Counsel in civil cases: Rachel v. Troutt

Addressing Perry’s request for appointed representation (recast on appeal as a guardian ad litem issue), the panel cited Rachel v. Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016), for two key points:

  • In civil cases, a court may “request” an attorney but cannot compel representation.
  • Because volunteer attorney resources are limited, district courts must be selective in granting such requests.

The citation supports deference to district-court discretion in timing and necessity of counsel requests—especially where the litigant fails to show why denial was erroneous.

6. “Newly discovered evidence” and timing: Wolfgang v. Mid-Am. Motorsports, Inc.

The panel denied a motion to supplement the record with medical documents created after dismissal, explaining that Fed. R. Civ. P. 60(b)(2) did not apply because “newly discovered evidence must have been in existence” when judgment entered, citing Wolfgang v. Mid-Am. Motorsports, Inc., 111 F.3d 1515, 1530 (10th Cir. 1997). This is a firm temporal limitation: later-created materials are not “newly discovered” for reopening a judgment under Rule 60(b)(2).

B. Legal Reasoning

1. Justiciability: mootness controls emergency eviction relief

The panel’s mootness reasoning is direct: the federal court could not enjoin an eviction that already occurred. The decision illustrates how quickly eviction timelines can outpace federal emergency motions—and how Article III’s “live controversy” requirement restricts judicial power to effective relief.

2. Procedural sequencing: screening is not a merits lock-in

A central procedural clarification is that surviving § 1915 screening does not immunize a claim from later dismissal. Screening is a preliminary, non-adversarial plausibility check; Rule 12(b)(6) motion practice is adversarial and can sharpen deficiencies. The court thus rejected the notion that “passing screening” confers any entitlement to discovery or continued litigation.

3. Appellate discipline: issue preservation and developed argument are mandatory

The opinion repeatedly applies preservation doctrines:

  • Timing: arguments must appear in the opening brief (Becker v. Kroll).
  • Substance: assertions of “clear error” without analysis waive review (Nixon; Murrell).

This approach is especially consequential in pro se civil-rights and housing litigation: the panel did not reach many merits questions because the appellant did not supply appellate-grade argumentation.

4. District-court management: dismissal before discovery can be proper

Perry argued dismissal should not occur before discovery and a scheduling conference. The panel rejected that framing because defendants filed a motion to dismiss before the scheduling conference, and the magistrate judge’s referral included recommending rulings on dispositive motions. The underlying point is that plausibility/legal-sufficiency challenges under Rule 12(b)(6) are designed to be resolved before discovery where appropriate.

5. Guardian ad litem vs. counsel; Rule 17(c)(2) is not triggered by assertion alone

The panel emphasized that Perry requested an attorney, not a guardian ad litem. In a footnote, it acknowledged that if a party were incompetent and the court knew it, Fed. R. Civ. P. 17(c)(2) could require protective action even absent a request. But it found the appellate presentation inadequate: Perry did not identify facts that would have alerted the district court to incompetency, nor reconcile her “extensive litigation activity” with an incompetency claim. The result is less a substantive holding on Rule 17(c)(2) and more an application of the “meaningful review requires developed facts and argument” principle.

C. Impact

Although nonprecedential, the order is likely to be cited for persuasive guidance in similar procedural postures—especially pro se, in forma pauperis cases filed alongside state eviction proceedings:

  • Eviction-related emergency motions: Litigants seeking to stop eviction must account for rapid mootness risk; once eviction occurs, the specific TRO request is generally dead on arrival.
  • Post-screening vulnerability: Plaintiffs should not treat survival of § 1915 screening as a substantive endorsement of the claim; a targeted Rule 12(b)(6) motion can still end the case early.
  • Appellate briefing standards: The decision reinforces that pro se status does not excuse failure to develop arguments or preserve issues.
  • Record and post-judgment practice: Attempts to add new materials on appeal (or via Rule 60(b)(2)) face strict limitations, particularly when documents were created after judgment.

4) Complex Concepts Simplified

  • In forma pauperis (IFP): Permission to litigate without prepaying fees. IFP status triggers court screening under 28 U.S.C. § 1915(e)(2)(B)(ii) to dismiss claims that fail to state a claim.
  • Screening vs. motion to dismiss: Screening is an early review without defendant input; a Rule 12(b)(6) motion is an adversarial challenge to whether the complaint plausibly states a legal claim.
  • Mootness: Courts decide live disputes. If the requested relief can no longer be granted (e.g., stopping an eviction that already happened), the request is moot.
  • Waiver/forfeiture on appeal: If you do not raise an argument in the opening brief, or you do not explain why the lower court was wrong, the appellate court can refuse to consider it.
  • State action (for § 1983): Section 1983 generally targets constitutional violations by government actors, not purely private parties (the district court used this to reject the Double Jeopardy/§ 1983 theory against private defendants).
  • Rule 60(b)(2) “newly discovered evidence”: Evidence must have existed at the time of judgment; later-created documents do not qualify.
  • Guardian ad litem (Rule 17(c)(2)): A court may need to protect an incompetent litigant, but a party must generally supply facts showing incompetency and that the court had reason to know it.

5) Conclusion

Perry v. Encore at Boulevard One is primarily a procedural decision: (1) once an eviction occurs, a TRO to prevent it is moot; (2) § 1915 screening does not preclude a later Rule 12(b)(6) dismissal after adversarial briefing; and (3) appellate review depends on timely, developed argument. The opinion’s practical significance lies in its clear warning to pro se and IFP litigants that passing initial screening is only the beginning—and that preservation, briefing discipline, and procedural fit (mootness, record limits, Rule 60 standards) often determine outcomes as much as underlying merits.