Gunn v. Gordon ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 3, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RICHARD Q. GUNN,
Plaintiff - Appellant,
v. No. 17-4174
(D.C. No. 2:13-CV-00659-DN)
DENNIS GORDON and RICHARD (D. Utah)
GARDEN,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
Mr. Richard Q. Gunn is a state prisoner who sued under 42 U.S.C.
§ 1983 for cruel and unusual punishment, inadequate medical care,
deprivation of due process, and denial of equal protection. On all claims,
the district court ordered dismissal or granted summary judgment to the
defendants. Mr. Gunn appeals, contending that he has a viable claim under
*
The parties agree to submission on the briefs, and oral argument
would not materially aid our consideration of the appeal. Thus, we have
decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2)(C);
10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
the Americans with Disabilities Act and that his counsel was ineffective.
We reject both contentions.
I. Americans with Disabilities Act
For the first time on appeal, Mr. Gunn alleges a violation of the
American with Disabilities Act. See 42 U.S.C. § 12132. But Mr. Gunn
waived this claim by omitting it in any of the complaints filed in district
court. J.V. v. Albuquerque Pub. Schs., 813 F.3d 1289, 1299 (10th Cr.
2016).
II. Ineffective Assistance of Counsel
Mr. Gunn also claims ineffective assistance of counsel based on his
counsel’s unfamiliarity with Title II of the Americans with Disabilities
Act. This claim is invalid because the constitutional right to effective
assistance of counsel does not apply in civil cases. MacCuish v. United
States, 844 F.2d 733, 735 (10th Cir. 1988); see also Beaudry v. Corrs.
Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003) (“[P]laintiffs have no
Sixth Amendment right to counsel in a civil case.”).
* * *
Having rejected both appellate arguments, we affirm.
III. Leave to Proceed In Forma Pauperis
Although we affirm, we must address Mr. Gunn’s motion for leave to
proceed in forma pauperis. For leave to proceed in forma pauperis, Mr.
Gunn must show that he
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 is unable to pay the filing fee and
 brings the appeal in good faith.
28 U.S.C. § 1915(a)(1), (a)(3).
Mr. Gunn satisfies both requirements. He lacks sufficient funds to
prepay the filing fee, and we have little reason to question Mr. Gunn’s
good faith. Therefore, we grant leave to proceed in forma pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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