Filed: Mar. 31, 2020
Latest Update: Mar. 31, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 31, 2020 _ Christopher M. Wolpert Clerk of Court MAURICE L. MILES, JR., Plaintiff - Appellant, v. No. 19-3133 (D.C. No. 5:16-CV-03152-EFM) DEPUTY CONRAD, in his official (D. Kan.) capacity with Reno County Sheriff’s Department; DEPUTY SWONGER, in his official capacity with Reno County Sheriff’s Department; DEPUTY MONDRAGON, in his official capacity with Reno County Sheriff’s Department;
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 31, 2020 _ Christopher M. Wolpert Clerk of Court MAURICE L. MILES, JR., Plaintiff - Appellant, v. No. 19-3133 (D.C. No. 5:16-CV-03152-EFM) DEPUTY CONRAD, in his official (D. Kan.) capacity with Reno County Sheriff’s Department; DEPUTY SWONGER, in his official capacity with Reno County Sheriff’s Department; DEPUTY MONDRAGON, in his official capacity with Reno County Sheriff’s Department; D..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MAURICE L. MILES, JR.,
Plaintiff - Appellant,
v. No. 19-3133
(D.C. No. 5:16-CV-03152-EFM)
DEPUTY CONRAD, in his official (D. Kan.)
capacity with Reno County Sheriff’s
Department; DEPUTY SWONGER, in his
official capacity with Reno County
Sheriff’s Department; DEPUTY
MONDRAGON, in his official capacity
with Reno County Sheriff’s Department;
DEPUTY CARDER, in his official
capacity with Reno County Sheriff’s
Department,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, EID, and CARSON, Circuit Judges.
_________________________________
Maurice Miles, Jr., a Kansas inmate appearing pro se, appeals from the district
court’s entry of final judgment in favor of Defendants on his 42 U.S.C. § 1983 claims
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
stemming from an assault he endured at the hands of another inmate. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Officials at the Reno County Jail assigned Mr. Miles to a cell he shared with
inmate Robert Sallabedra. Mr. Miles did not get along with Mr. Sallabedra. He
voiced several complaints about his housing assignment via the jail’s “turnkey
system” for inmate communications. The district court recounted Mr. Miles’s
complaint history:
On May 29, 2016, Plaintiff submitted his first turnkey request
related to his cellmate. In this request, submitted at 5:03 a.m., he stated:
“Please can I move cells? i keep catching my cellie digging through my
stuff and its pissing me off.” Deputy Nall reviewed and denied the
request on May 29 at 6:47 p.m.
At 6:08 p.m., on May 30, 2016, Plaintiff submitted a second
turnkey request. In it, he said: “I dnt know why yall do this to me. Is it
a set up to fail? I do not get along with my cellie at as a room mate
theres plenty of other cells in this pod that are open. Can you please
move me?” The next day, at 6:20 p.m., Deputy Conrad responded:
“You will not be moved.”
Five days later, on June 4, 2016, at 8:09 p.m., Plaintiff sent a
message: “I just to make sure that I dont get into any truble for the
stolen books that my cellie has been hording in our cell the next time
you shake down.” Deputy Nall responded with “Noted.”
On June 6, Plaintiff sent the following message about his cell
mate: “People are talking about woopin my cellie for stealing and tering
up the librarybooks an he keeps stealing coffee from people as well.
Something need to be done soon about it.” That same day, Deputy
Wornkey replied with “noted.”
On June 7, 2016, at 9:36 p.m., Plaintiff sent his fifth turnkey
report about his cellmate: “Imasking that you please do something with
my cellie, if he steals or disrespects me one more time Im gonna end up
2
in the hole. He constantly disrespects this whole pod. Im not going to
keep putting up with his stealing from me problem.” There was no
response to this message.
On June 9, 2016, at 4:51 a.m., Plaintiff sent the following
message: “Are yall realy serious? I mean we gave a nte t the gaurds last
night with over 10 signatures on it to move salabedra out of this pod and
yall still ignore us? So what do we do now? All go to the hole for
handeling it our selvs? Everybody is ready to woop this dudes
[expletive] if something dont happen. The stealing and disrespect has
gone to far.”
R. Vol. II at 199–200.
About 10 minutes after this last turnkey communication Mr. Miles and Mr.
Sallabedra had a physical altercation. Mr. Miles bases this suit on injuries he
sustained during his fight with Mr. Sallabedra.
Mr. Miles filed three motions seeking appointment of counsel under
28 U.S.C. § 1915(e)(1). The district court denied each of these motions. The district
court dismissed the claims against Defendants Swonger, Mondragon, and Carder by
applying the doctrine of qualified immunity and Rule 12(b)(6). It then granted
summary judgment to Defendant Conrad. This appeal followed.
II. Discussion
As relevant to this appeal, Mr. Miles’s § 1983 claims seek damages for
Defendants’ alleged failure to protect him from the harm inflicted by Mr. Sallabedra,
in violation of his Eighth Amendment rights. The Eighth Amendment’s prohibition
of cruel and unusual punishment imposes a duty on prison officials to provide
humane conditions of confinement, including “reasonable measures to guarantee the
safety of the inmates.” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (internal
3
quotation marks omitted). “This duty includes ‘a duty to protect prisoners from
violence at the hands of other prisoners.’” Requena v. Roberts,
893 F.3d 1195, 1214
(10th Cir. 2018) (quoting
Farmer, 511 U.S. at 833), cert. denied,
139 S. Ct. 800
(2019). “To prevail on a failure to protect claim, an inmate must show (1) that the
conditions of his incarceration present[ed] an objective substantial risk of serious
harm and (2) prison officials had subjective knowledge of the risk of harm.”
Id.
(internal quotation marks omitted). To satisfy the second prong, an official “must
both be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at
837.
A. Rule 12(b)(6) Dismissals
We review the district court’s application of the doctrine of qualified immunity
and its Rule 12(b)(6) dismissal de novo. See Lincoln v. Maketa,
880 F.3d 533, 537
(10th Cir. 2018).
“The doctrine of qualified immunity protects officials from civil liability as
long as they do not ‘violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’”
Id. (quoting Mullenix v. Luna,
136 S. Ct. 305, 308 (2015)). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation
marks omitted). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”
Id. Where a complaint asserts
4
claims against multiple defendants, “[i]t is particularly important that plaintiffs make
clear exactly who is alleged to have done what to whom, as distinguished from
collective allegations.” Pahls v. Thomas,
718 F.3d 1210, 1225 (10th Cir. 2013)
(ellipsis and internal quotation marks omitted).
The district court found that the complaint contained nothing more than
conclusory allegations that Defendants Swonger, Mondragon, and Carder violated
Mr. Miles’s constitutional or statutory rights. And it further found that the collective
allegations against these Defendants failed to adequately specify which of them took
the alleged wrongful actions. Mr. Miles does not point to any allegations in his
complaint that undermine these conclusions or otherwise advance a reasoned
argument that the court erred in reaching them. We affirm the dismissal of
Defendants Swonger, Mondragon, and Carder for substantially the same reasons cited
by the district court.
B. Denial of Motions to Appoint Counsel
“We have previously directed district courts to evaluate, in connection with a
request to appoint counsel under § 1915, the merits of a prisoner’s claims, the nature
and complexity of the factual and legal issues, and the prisoner’s ability to
investigate the facts and present his claims.” Hill v. SmithKline Beecham Corp.,
393 F.3d 1111, 1115 (10th Cir. 2004). “The burden is upon the applicant to convince
the court that there is sufficient merit to his claim to warrant the appointment of
counsel.” McCarthy v. Weinberg,
753 F.2d 836, 838 (10th Cir. 1985) (per curiam).
5
“We review a district court’s refusal to appoint counsel for an indigent
prisoner in a civil case for an abuse of discretion.”
Hill, 393 F.3d at 1115. We will
reverse the district court’s ruling “[o]nly in those extreme cases where the lack
of counsel results in fundamental unfairness.”
Id. (internal quotation marks omitted).
In denying each of Mr. Miles’s motions seeking appointment of counsel, the
district court provided a reasoned explanation. It denied his first motion after
concluding that the entire case should be dismissed due to Mr. Miles’s failure to
exhaust his administrative remedies, and principally based this ruling on its view that
Mr. Miles did not assert a colorable claim. After Mr. Miles successfully convinced
us, while appearing pro se, to reverse the district court’s first dismissal of his case,
the district court denied his second motion for appointment of counsel without
prejudice because (1) Mr. Miles did not meet his burden to convince the court that his
claims had merit; (2) the case turned on events directly involving Mr. Miles and he
did not need professional training to explain what allegedly happened to him; (3) the
court believed Mr. Miles demonstrated an ability to represent himself, including by
convincing us to reverse the district court’s first dismissal of his case; and (4) Mr.
Miles’s case was not legally or factually complex. The district court denied Mr.
Miles’s third motion because (1) he did not point to any change in circumstances that
supported his request; (2) intervening filings in the case enlightened the court as to
additional weaknesses in his case; and (3) Mr. Miles had continued to show an ability
to competently represent himself.
6
Mr. Miles does not explain how the district court abused its discretion in
denying his motions to appoint counsel. We have reviewed the district court’s stated
rationales and conclude that it did not abuse its discretion in denying any of Mr.
Miles’s motions seeking the appointment of counsel.1
C. Summary Judgment
We review the district court’s summary judgment decision de novo, viewing
the factual record and making reasonable inferences from it in the light most
favorable to the nonmoving party. Bird v. W. Valley City,
832 F.3d 1188, 1199
(10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is
such that a reasonable jury could return a verdict for the nonmoving party, and a fact
is material when it might affect the outcome of the suit under the governing
substantive law.”
Bird, 832 F.3d at 1199 (alteration and internal quotation marks
omitted). “A movant that will not bear the burden of persuasion at trial need not
negate the nonmovant’s claim. Such a movant may make its prima facie
demonstration simply by pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Felkins v. City of
1
As a corollary to his argument regarding the appointment of counsel, Mr.
Miles complains that neither the court nor anyone else contacted witnesses on his
behalf or otherwise gathered his evidence. This remonstration misses the point that
Mr. Miles has the burden to prove his case. And Mr. Miles does not point to any
error the district court made with respect to his efforts to marshal evidence
supporting his claims.
7
Lakewood,
774 F.3d 647, 653 (10th Cir. 2014) (alteration and internal quotation
marks omitted).
The district court found that while the evidence “demonstrates that [Mr. Miles]
communicated several times with prison staff that [Mr. Miles’s] cellmate was
stealing from him and that they were not getting along,” Mr. Miles “did not
communicate concern that the conditions posed a substantial risk of serious harm.”
R. Vol. II at 204. The court therefore found no fact issue that the conditions of Mr.
Miles’s incarceration presented an objective substantial risk of serious harm. It
further found no evidence that Defendant Conrad had subjective knowledge of the
risk of harm, noting as follows: “None of the turnkey reports indicate aggressive or
threatening behavior by Sallabreda [sic] towards [Mr. Miles]. None of the turnkey
reports indicate [Mr. Miles’s] concern of any violence from Sallabreda [sic]. If
anything, the last few turnkey communications indicate that [Mr. Miles] may harm
Sallabedra.”
Id. at 205.
Mr. Miles does not advance a reasoned argument that the district court
misconstrued the evidence, nor does he cite any evidence in the record that
undermines the court’s conclusion. We affirm the grant of summary judgment to
Defendant Conrad for substantially the same reasons cited by the district court.
III. Conclusion
We affirm the district court’s (1) dismissal of Defendants Swonger,
Mondragon, and Carder, (2) denial of Mr. Miles’s motions for appointment of
counsel, and (3) entry of summary judgment in favor of Defendant Conrad.
8
We grant Mr. Miles’s motion to proceed without prepayment of costs and fees.
Entered for the Court
Jerome A. Holmes
Circuit Judge
9