Lopez v. Roark ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 2, 2016
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Elisabeth A. Shumaker
Clerk of Court
PAUL ARTHUR LOPEZ,
Plaintiff - Appellant,
v. No. 15-2080
(D.C. No. 2:13-CV-00743-JCH-CG)
JERRY ROARK; JOE BOOKER; JAMES (D.N.M.)
FRAWNER; MICHAEL GONZALEZ,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
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After Paul Lopez arrived at the Otero County prison in New Mexico, he sought
placement in the prison protective custody unit and in support of his request gave
Michael Gonzalez (a gang intelligence officer) a list of “enemies” he feared in the
general prison population. In response, the prison provisionally acceded to
Mr. Lopez’s placement request pending an investigation by the New Mexico Security
Threat Intelligence Unit (STIU). Ultimately, STIU informed the prison that it
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
thought Mr. Lopez should be housed in the general population and soon Mr. Lopez
found himself transferred there. Later, Mr. Lopez was injured in a fight with David
Sisneros, a prisoner who, it turns out, wasn’t on his enemies list. Then, shortly after
Mr. Lopez filed a grievance against prison officials related to the fight, he failed a
drug test administered by Mr. Gonzalez. In response, Mr. Lopez filed this lawsuit
alleging that James Frawner (the prison’s warden) and Mr. Gonzalez violated his
constitutional rights by housing him with the general prison population and
retaliating against him for filing his grievance. Ultimately, the district court granted
summary judgment for the defendants and it’s this ruling Mr. Lopez now asks us to
review.1
Though mindful of our duty to construe Mr. Lopez’s pro se arguments
liberally, we can discern no reversible error here. To succeed on his primary claim
under the Eighth Amendment, Mr. Lopez must show (among other things) that the
defendants were deliberately indifferent to his safety. Farmer v. Brennan, 511 U.S.
825, 843 (1994). But the record before us shows that the defendants didn’t disregard
Mr. Lopez’s safety concerns and instead took them seriously enough to refer them to
the state’s experts who studied and ultimately found them wanting. Neither was Mr.
Sisneros on the list of “enemies” Mr. Lopez warned the defendants about and the
1
Before ruling on summary judgment for Messrs. Frawner and Gonzalez, the
district court dismissed sua sponte all claims against two other defendants, Jerry
Roark and Joe Booker, for failure to state a claim under 28 U.S.C. § 1915(e) and
Fed. R. Civ. P. 12(b)(6). Mr. Lopez’s perfunctory argument in his opening appeal
brief challenging this dismissal order is, however, insufficient to permit our appellate
review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
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record reveals no connection between Mr. Sisneros and anyone who was on that list.
These facts simply are not sufficient as a matter of law to establish a triable question
of deliberate indifference. See, e.g., Verdecia v. Adams, 327 F.3d 1171, 1176 (10th Cir.
2003) (finding prison officials were not deliberately indifferent to a prisoner’s risk of
gang-related harm where they investigated an altercation involving the prisoner and
found no evidence it was gang related).
Mr. Lopez’s First Amendment claim is premised on the theory that the
defendants retaliated against him for filing his administrative grievance by finding
him guilty of a drug infraction. But “[i]f a prisoner is found guilty of an actual
disciplinary infraction after being afforded due process and there was evidence to
support the disciplinary panel’s fact finding, the prisoner cannot later state a
retaliation claim against the prison employee who reported the infraction.” O’Bryant
v. Finch, 637 F.3d 1207, 1215 (11th Cir. 2011). And the record before us shows that
Mr. Lopez was afforded considerable process before being found guilty of his drug
infraction. Mr. Lopez’s remaining claims, that his due process and equal protection
rights were also violated, are insufficiently developed to permit us to review them
meaningfully and from what we do have before us we can discern no error in the
district court’s disposition. See Murrell, 43 F.3d at 1389 n.2; Fed. R. App. P.
28(a)(8)(A) (requiring citations to the parts of the record the appellant relies on).
Separately, Mr. Lopez challenges the district court’s denial of his motion for
leave to amend his complaint. But his motion to that court did not include a
proposed amended complaint as required by the local rule. See D.N.M.LR-Civ. 15.1.
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Finally, Mr. Lopez shows error neither in the district court’s denial of his motion for
appointment of counsel nor in its denial of his motion to expand the record.
The district court’s judgment is affirmed. We grant Mr. Lopez’s motion to
proceed on appeal without prepayment of fees and costs, but he is reminded of his
obligation to make partial payments until the fee has been paid in full.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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