FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           July 5, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
PIERRE WATSON,

      Plaintiff - Appellant,

v.                                                          No. 16-3008
                                                  (D.C. No. 5:13-CV-03035-EFM)
LISA HOLLINGSWORTH, Warden, USP-                             (D. Kan.)
Leavenworth, in her individual and official
capacity; RICHARD W. SCHOTT,
Regional Counsel, in his individual and
official capacity; MICHAEL K. NALLEY,
Regional Director, in his individual and
official capacity,

      Defendants - Appellees,

and

JOSH EVANS, Senior Officer Specialist,
USP-Leavenworth, in his individual and
official capacities,

      Defendant.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

(1971), the Supreme Court authorized private citizens to seek damages for

constitutional torts committed by federal officials. Courts disallow Bivens claims

against federal officials acting in their official capacities and limit liability to the

federal employee’s own acts. In this case, the district court dismissed Pierre Watson’s

official-capacity Bivens claims under Fed. R. Civ. P. 12(b)(1). The district court

dismissed Watson’s individual-capacity Bivens claims on summary judgment because

Watson had failed to establish any personal participation by the Defendants and had

failed to present any evidence showing a constitutional violation.1 Watson now

appeals and moves (1) to proceed in forma pauperis (IFP) and (2) for appointment of

appellate counsel. We affirm the district court’s dismissal, grant Watson’s IFP

motion, and deny his motion to appoint counsel.

                                    BACKGROUND

       On February 28, 2013, Watson filed this lawsuit purporting to assert individual

and official-capacity Bivens claims against Josh Evans, Lisa Hollingsworth, Richard

W. Schott, and Michael K. Nalley. On January 21, 2014, Watson amended his

Complaint to add additional factual allegations, again asserting Bivens claims against

the same Defendants. Watson’s allegations derived from a June 27, 2011 altercation

between Watson and corrections officer Evans.

       1
         Josh Evans is identified in the caption as a Defendant, but not as one of the
Defendants-Appellees. As noted in this order, Watson never served Evans with
process, and Evans never personally appeared and defended. So the discussion of the
district court’s rulings on the merits pertains to the three Defendants-Appellees,
Hollingsworth, Schott, and Nalley.
                                              2
       In his Amended Complaint, Watson alleged that Evans had physically

assaulted him, causing severe head trauma. Watson alleged that Evans had repeatedly

punched him in the face while Watson was handcuffed. Watson also alleged that

Evans had “grabbed [his] throat . . . very tightly . . . to the point of not being able to

breath [sic].” R. Vol. 1 at 125. Watson further alleged that Evans had slammed his

face into the ground and that other unknown officers had repeatedly struck him in the

head even though he had been restrained on the floor for minutes.

       Watson does not allege that Hollingsworth, Schott, or Nalley (collectively

referred to as Defendants-Appellees) participated in this attack. Instead, Watson

merely alleges that Hollingsworth “conspire[d] with [Schott and Nalley] to deprive

[Evans] of his equal protection of the laws as guaranteed by the 8th and 14th

Amendments of the United States Constitution.” R. Vol. 1 at 126.

       Hollingsworth was the warden at the USP Leavenworth correctional facility

during Watson’s incarceration. Schott was the Bureau of Prisons’ Regional Counsel,

and Nalley was the Bureau of Prisons’ Regional Director. Watson alleges that

Hollingsworth “refused to answer [his] Request for Administrative Remedy” and

“allowed C/O Evans to assault Plaintiff and not be disciplined for his infliction of

pain.” R. Vol. 1 at 126–27. As for Schott and Nalley, Watson alleges that they, along

with Hollingsworth, “refused to answer [his] grievances, letters, and continued to

keep [him] in the Special Housing Unit (“SHU”) under investigation pending

prosecution against Plaintiff.” 

                                              3
      After Watson filed his Amended Complaint, the district court issued

summonses for all four Defendants. Watson successfully served Schott and Nalley.

But Hollingsworth and Evans were no longer employed at USP Leavenworth, and

Watson never served them with a Summons and Complaint. Even though she was

never served, Hollingsworth appeared and participated in this action. Evans has never

been served and has never appeared.

      Hollingsworth, Schott, and Nalley responded to Watson’s Complaint by filing

a motion to dismiss, or in the alternative, a motion for summary judgment. In their

motion, Defendants-Appellees asserted that the district court should dismiss

Watson’s official-capacity Bivens claims for lack of subject-matter jurisdiction under

Fed. R. Civ. P. 12(b)(1). Next, Defendants-Appellees asserted that the district court

should dismiss all of Watson’s individual-capacity Bivens claims under Fed. R. Civ.

P. 12(b)(6) because Watson had failed to exhaust his administrative remedies. Third,

Defendants-Appellees argued that the district court should grant summary judgment

based on qualified-immunity grounds. Finally, Defendants-Appellees argued that the

district court should dismiss the Bivens claims because Watson had failed to show

any personal participation by Defendants-Appellees as required to state a claim under

Bivens.

          The district court concluded that it lacked jurisdiction over the official-

capacity Bivens claims, which are claims against the United States for which it had

not waived sovereign immunity. Thus, it dismissed those claims under Fed. R. Civ. P.

12(b)(1). Next, noting that both parties had attached materials outside of the

                                              4
Complaint, the district court considered the individual-capacity Bivens claims under

the summary-judgment standard. Under the summary-judgment standard, it rejected

the Government’s argument that Watson had failed to exhaust his administrative

remedies. Construing Watson’s claims broadly, the district court concluded that

Watson had alleged that Defendants-Appellees violated his constitutional rights by

(1) failing to discipline Evans for his alleged assault on Watson; (2) failing to

respond to Watson’s correspondence or his agency grievances related to the assault;

and (3) placing him in the Special Housing Unit after the alleged assault. The district

court also construed Watson’s Complaint to allege that Hollingsworth had covered up

medical reports and attempted to destroy video footage of the alleged assault.

      Addressing these claims, the district court first concluded that Watson had

presented insufficient evidence to impose supervisory liability under Bivens. Next, it

concluded that the Defendants’-Appellees’ alleged failures to respond to Watson’s

grievances and their decision to place him in the Special Housing Unit would not

amount to constitutional violations. And finally, the district court concluded that

Watson had presented no evidence that Hollingsworth had covered up any medical

reports or attempted to destroy video footage. Thus, the district court granted

summary judgment in favor of the Defendants-Appellees and dismissed all the claims

against them. The district court waited to enter a judgment because Watson’s claims

against Evans survived.

      On December 17, 2014, the same day it dismissed Watson’s claims against

Defendants-Appellees Hollingsworth, Schott, and Nalley, the district court issued a

                                            5
Notice and Order Regarding Service of Defendant Evans. In that Order, the district

court provided Watson thirty days to serve Evans or to provide the U.S. Marshals

Service with a current location or address for Evans. Watson didn’t respond. On

December 2, 2015, almost a year later, the district court issued a Notice and Order to

Show Cause requiring Watson, on or before December 28, 2015, to show why his

case against Evans should not be dismissed for lack of prosecution under Fed. R. Civ.

P. 41(b). Watson responded by asking the district court for a 30-day extension of

time. The district court granted Watson an extension until January 28, 2016 to

respond to its order to show cause. Watson didn’t respond to the district court’s order

to show cause.

      On February 5, 2016, after providing Watson multiple opportunities to serve

Evans, the district court dismissed Watson’s claims against Evans for failure to

prosecute. Watson appealed the district court’s dismissal of his claims against

Defendants.

                                   DISCUSSION2

I.    Watson’s Notice of Appeal


      2
         Because Watson appears pro se, “we construe his pleadings liberally.”
Ledbetter v. City of Topeka, 

, 1187 (10th Cir. 2003). In doing so, we
are more lenient with deficient pleadings, failure to cite appropriate legal authority,
and confusion of legal theories. See Garrett v. Selby Connor Maddux & Janer, 

, 840 (10th Cir. 2005). But we “cannot take on the responsibility of serving
as the litigant’s attorney in constructing arguments and searching the record.” 

will not “supply additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 

, 1173–74 (10th Cir. 1997).

                                           6
      On appeal, the Government argues that Watson’s Notice of Appeal challenges

the district court’s repeated denials of his requests for appointment of counsel, not

the dismissal of Watson’s claims against Hollingsworth, Nalley, and Schott. From

this, the Government argues that we lack appellate jurisdiction to review the district

court’s dismissal of Watson’s claims. We disagree.

      “Rule 3 of the Federal Rules of Appellate Procedure conditions federal

appellate jurisdiction on the filing of a timely notice of appeal.” Smith v. Barry, 

, 245 (1992). Rule 3(c) specifies the required content of notices of appeal:

they must “specify the party or parties taking the appeal”; “designate the judgment,

order or part thereof being appealed”; and “name the court to which the appeal is

taken.” Fed. R. App. P. 3(c). We liberally construe these requirements, meaning that

even if the filed papers are “technically at variance with the letter of [Rule 3], a court

may nonetheless find that the litigant has complied with the rule if the litigant’s

action is the functional equivalent of what the rule requires.” 

(quoting Torres v. Oakland Scavenger Co., 

, 316–17 (1988)). “While a

notice of appeal must specifically indicate the litigant’s intent to seek appellate

review, . . . the purpose of this requirement is to ensure that the filing provides

sufficient notice to other parties and the courts.” 

“document filed within the

time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice

of appeal.” 

To this already lenient standard, we add that Watson filed

his pleadings pro se, requiring us to hold his pleadings to a less stringent standard

than formal pleadings drafted by lawyers. See Hall v. Bellmon, 

, 1110

                                            7
(10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally and held

to a less stringent standard than formal pleadings drafted by lawyers.”).

      On December 31, 2015, before the district court dismissed the claims against

Evans but after it decided the merits of Watson’s claims against the Defendants-

Appellees, Watson filed a notice of appeal. In the Notice of Appeal, Watson said that

he was appealing the district court’s orders denying him counsel. Upon receipt of the

Notice of Appeal, we abated the appeal because Watson had filed a separate motion

asking the district court to reconsider its order dismissing Watson’s claims against

Evans and the Defendants-Appellees, which motion was still pending before the

district court. On February 5, 2016, after dismissing the claims against Evans, the

district court entered judgment in favor of the Defendants-Appellees. Once the

district court dismissed the claims against Evans, there were “no claims or defendants

remaining in this matter,” so the district court closed the case and we lifted the

abatement of Watson’s December 15 appeal. R. Vol. 1 at 9. On March 1, 2016,

within 30 days of the district court’s judgment, Watson filed his Opening Brief,

stating that he was appealing the district court’s dismissal of his claims. See Opening

Br. at 3 (listing first issue as “Dismissal of defendants from Civil Suit.”). Because

Watson filed his Opening Brief within 30 days from the date of the Judgment, it is

effective as a notice of appeal. 

(“[The Federal Rules] do not

preclude an appellate court from treating a filing styled as a brief as a notice of

appeal . . . if the filing is timely under Rule 4 and conveys the information required

by Rule 3(c).”).

                                            8
      “Even if a notice fails to properly designate the order from which the appeal is

taken, this Court has jurisdiction if the appellant’s intention was clear.” Fleming v.

Evans, 

, 1253–54 (10th Cir. 2007); see also Sines v. Wilner, 

, 1074 (10th Cir. 2010). The clear intent of Watson’s Opening Brief was to

appeal the district court’s order dismissing his claims against Evans and the

Defendants-Appellees.3 “[W]e should not be hypertechnical in ruling that a notice of

appeal does not challenge a judgment or order that the appellant clearly wished to

appeal.” 

. Rather, “[a] mistake in designating the judgment

appealed from is not always fatal, so long as the intent to appeal from a specific

ruling can fairly be inferred by probing the notice and the other party was not misled

or prejudiced.” 

with his Notice of Appeal, we construe Watson’s

Opening Brief as the functional equivalent of the notice of appeal designating the

district court’s judgment. Thus, we have jurisdiction to consider the district court’s

dismissal of Watson’s claims against Defendants.

II.   Official-Capacity Bivens Claims

      Watson sued Hollingsworth, Schott, and Nalley in their individual and official

capacities. The district court dismissed all Bivens claims against them in their official

capacity, concluding that the United States had not waived sovereign immunity for

those claims, a prerequisite to the district court’s subject-matter jurisdiction. We

review de novo a district court’s dismissal for lack of subject-matter jurisdiction

      3
        Watson does not contend that the district court erred by dismissing Evans for
lack of prosecution. Nor does Watson contest that he failed to serve Evans with
process.
                                            9
under Fed. R. Civ. P. 12(b)(1). Becker v. Ute Indian Tribe of the Uintah & Ouray

Reservation, 

, 946 (10th Cir. 2014). We conclude that the district court

properly dismissed Watson’s official-capacity Bivens claims.

      “There is no such animal as a Bivens suit against a public official . . . in his or

her official capacity. Instead, any action that charges such an official with

wrongdoing while operating in his or her official capacity . . . operates as a claim

against the United States.” Simmat v. U.S. Bureau of Prisons, 

, 1231

(10th Cir. 2005) (quoting Farmer v. Perrill, 

, 963 (10th Cir. 2001)). And

“[s]overeign immunity . . . shields the United States, its agencies, and its officers

acting in their official capacity from suit.” Normandy Apartments, Ltd. v. U.S. Dep’t

of Hous., 

, 1295 (10th Cir. 2009).

      This defense is jurisdictional and deprives courts of subject-matter

jurisdiction. 

seeking to assert a claim against the government must

point to a specific waiver of sovereign immunity to establish jurisdiction. 

we liberally construe Watson’s Amended Complaint, Watson has failed to

identify any such waiver of immunity. And on appeal, Watson doesn’t argue that the

district court erred in dismissing the claims against Defendants-Appellees in their

official capacity. Thus, sovereign immunity deprived the district court of jurisdiction

to entertain any of Watson’s claims against Defendants-Appellees in their official

capacities. See Peterson v. Timme, 621 F. App’x 536, 541 (10th Cir. 2015)

(unpublished) (affirming dismissal of the official-capacity claims for lack of subject-

matter jurisdiction).

                                           10
III.   Individual-Capacity Bivens Claims

       When public officials inflict constitutional injuries in the course of performing

their duties, they may be individually liable for damages. Pahls v. Thomas, 

, 1225 (10th Cir. 2013). A Bivens action provides a “private action for damages

against federal officers alleged to have violated a citizen’s constitutional rights.”

Ashcroft v. Iqbal, 

, 675 (2009) (quoting Correctional Servs. Corp. v.

Malesko, 

, 66 (2001)).

       The district court granted Defendants-Appellees summary judgment on

Watson’s individual-capacity Bivens claims based on their lack of personal

participation and their qualified-immunity defense. We review de novo a district

court’s grant of summary judgment, applying the same standards as apply in the

district court. Thomas v. Durastanti, 

, 662 (10th Cir. 2010). Summary

judgment is appropriate only where there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

       A.    Lack of personal participation

       At the heart of Watson’s Complaint is his attempt to hold someone responsible

for Evans’s alleged assault. But it is undisputed that the Defendants-Appellees played

no part in the alleged attack. To establish Bivens liability, Watson must provide

evidence that an individual directly and personally participated in the purported

constitutional violation. 

. “Government officials may not be



                                           11
held liable for the unconstitutional conduct of their subordinates under a theory of

respondeat superior.” 

.

      But we have recognized that government officials may be held responsible for

constitutional violations under a theory of supervisory liability. 

on a

suit against a supervisor, Watson must show “(1) the defendant promulgated, created,

implemented or possessed responsibility for the continued operation of a policy that

(2) caused the complained of constitutional harm, and (3) acted with the state of mind

required to establish the constitutional deprivation.” Dodds v. Richardson, 

, 1198 (10th Cir. 2010).

      Here, Watson doesn’t allege, much less present any evidence of, a policy

created or implemented by the Defendants-Appellees that caused him harm. Further,

Watson’s allegations against the Defendants-Appellees relate to conduct that

happened after Evans allegedly assaulted him. Thus, to the extent Watson attempts to

hold the Defendants-Appellees responsible for Evans’s alleged assault, the district

court properly granted summary judgment in their favor.

      B.     Qualified Immunity

      After dismissing Watson’s claims based on Evans’s conduct, we are left with

three allegations: (1) that the Defendants-Appellees failed to respond to various

correspondence or agency grievances related to the assault; (2) that the Defendants-

Appellees placed him in the Special Housing Unit after the alleged assault; and (3)

that Hollingsworth covered up medical reports and attempted to destroy video

footage of the assault. The district court awarded the Defendants-Appellees qualified

                                           12
immunity on each of these claims because Watson had failed to allege conduct on the

part of the Defendants-Appellees that amounted to a constitutional violation.

      “Public officials enjoy qualified immunity in civil actions that are brought

against them in their individual capacities and that arise out of the performance of

their duties.” 

. We review de novo a grant of summary

judgment based on qualified immunity. Puller v. Baca, 

, 1196 (10th

Cir. 2015). “[Q]ualified immunity . . . is both a defense to liability and a limited

‘entitlement not to stand trial or face the other burdens of litigation.’” 

(quoting Mitchell v. Forsyth, 

, 526 (1985)). Once a defendant

asserts qualified immunity, “the burden shifts to the plaintiff to establish (1) a

violation of a constitutional right (2) that was clearly established” at the time of the

violation. 

(citing Cortez v. McCauley, 

, 1114

(10th Cir. 2007) (en banc)).

      To meet the “heavy two-part burden” necessary to overcome a qualified-

immunity defense, plaintiffs must point to admissible evidence in the record. Medina

v. Cram, 

, 1128 (10th Cir. 2001). Watson “may not rest upon the mere

allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 

, 248 (1986) (quoting First Nat’l Bank of Ariz. V. Cities Serv. Co., 

,

288 (1968)). Instead, Watson must “present sufficient evidence in specific, factual

form for a jury to return a verdict in [his] favor.” Bacchus Indus., Inc. v. Arvin Indus.,

Inc., 

, 891 (10th Cir. 1991).



                                            13
      In his Appellate Brief, Watson states that he “is not aware of the law that the

District Court applied that was wrong.” Appellant’s Opening Br. at 4. Without

providing any additional argument, Watson claimed that “there is proof and evidence

that shows all defendants violated plaintiffs [sic] constitutional rights.” 

makes no attempt to show any specific constitutional rights that Defendants

violated.

      We have reviewed all of the documents submitted by Watson in response to

Defendants’ summary-judgment motion. Watson has presented no evidence to

support his allegations that Defendants-Appellees failed to respond to various

correspondence or agency grievances related to the assault or that Hollingsworth

covered up medical reports and destroyed video footage of the assault. In response to

the summary-judgment motions of Defendants-Appellees, Watson instead submitted

incident reports, documents related to his administrative remedies, and

correspondence between his mother and Hollingsworth. Nothing in these documents

even remotely suggests that Hollingsworth covered up medical records. And contrary

to Watson’s assertions, his submitted evidence shows that Defendants-Appellees

responded to his administrative-remedy requests. But even if his evidence supported

his claims, that conduct would not have amounted to a constitutional violation. Thus,

the district court didn’t err in granting summary judgment against these claims.

      We also agree with the district court that Watson has failed to show a

constitutional violation based on Defendants-Appellees having placed him in the

Special Housing Unit. See Stallings v. Werholtz, 492 F. App’x 841, 845 (10th Cir.

                                           14
2002) (unpublished) (confinement in administrative detention did not impose a

constitutional deprivation of liberty interest); Johnson-Bey v. Ray, 38 F. App’x 507,

509 (10th Cir. 2002) (unpublished) (concluding that plaintiff failed to allege

constitutional violation from placement in the Special Housing Unit). For these

reasons, we agree with the district court that Watson has failed to present sufficient

evidence to survive Defendants’-Appellees’ summary-judgment motion on qualified-

immunity grounds.

IV.   Request for Counsel

      Watson also challenges the district court’s repeated denials of his request for

counsel. We review the denial of appointment of counsel in a civil case for an abuse

of discretion. Rucks v. Boergermann, 

, 979 (10th Cir. 1995). “Only in

those extreme cases where the lack of counsel results in fundamental unfairness will

the district court’s decision be overturned.” Hill v. SmithKline Beecham Corp., 

, 1115 (10th Cir. 2004) (quoting McCarthy v. Weinberg, 

, 838

(10th Cir. 1985)). Unlike for criminal defendants, “[t]here is no constitutional right to

appointed counsel” for civil plaintiffs. Durre v. Dempsey, 

, 547 (10th

Cir. 1989). Instead, a court’s discretion to appoint counsel stems from 28 U.S.C.

§ 1915(e)(1), which allows the district court to appoint counsel for indigent parties.

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.” 

.

                                           15
      Watson filed two motions to appoint counsel, both of which were denied by

the district court, and two motions to reconsider the district court’s denials. The first

time the district court denied Watson’s motion, it said that it had “examined the

record and declines to appoint counsel at this point in the development of the matter.

The court therefore will deny the request at this time but may revisit this request in

the future.” R. Vol. 1 at 116. After Watson’s second motion, the district court

considered the proper factors and noted that Watson “has shown his ability to present

the operative facts and to frame his legal claims,” that the legal issues were not

“unusually complex or novel,” and that Watson was familiar with the administrative

procedures. 

On appeal, Watson presents no argument explaining how

the district court erred, instead simply repeating his conclusions that the district court

should have appointed counsel.

      We conclude that the district court did not abuse its discretion in denying

Watson’s motions to appoint counsel. In denying Watson’s motions to appoint

counsel, the district court addressed the merits of Watson’s claims, the nature and

complexity of the factual and legal issues, and his ability to investigate facts and

present his claims. 

with the district court that none of the issues in this

case are unusually complex and Watson was able to present his arguments. And, as

discussed above, Watson’s claims against the Defendants lack merit and we agree

with the district court’s summary-judgment grant. See 

(“The burden is upon the applicant to convince the court that there is sufficient merit

to his claim to warrant the appointment of counsel.”). Finally, Watson presents no

                                           16
argument that the denial of counsel resulted in fundamental unfairness. Thus, the

district court didn’t abuse its discretion. For the same reasons, we deny Watson’s

motion for appointment of counsel on appeal.

V. IFP Motion

      We have reviewed Watson’s IFP motion and conclude that “he has

demonstrated ‘a financial inability to pay the required fees and the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues raised

on appeal.’” McIntosh v. U.S. Parole Comm’n, 

, 812–13 (10th Cir.

1997) (quoting DeBardeleben v. Quinlan, 

, 505 (10th Cir. 1991)). So we

grant his motion.

                                   CONCLUSION

      For these reasons, the district court’s judgment is affirmed. We grant Watson’s

IFP motion but deny his motion for appointment of counsel. We remind Watson that

he remains obligated to continue making partial payments until the entire fee has

been paid.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




                                          17