Flute v. United States ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GARY FLUTE, SR.,
Plaintiff - Appellant,
v. No. 17-1397
(D.C. No. 1:17-CV-01688-LTB)
UNITED STATES OF AMERICA; MRS. (D. Colo.)
LOZANO, (first name unknown to
plaintiff), official & individual capacities;
MS. M. HOFFER, (first name unknown to
plaintiff), official & individual capacities;
MR. G. STAUT, (first name unknown to
plaintiff), official & individual capacities;
FCI-ENGLEWOOD; NORTH CENTRAL
REGIONAL OFFICE OF
ADMINISTRATIVE REMEDY
COORDINATORS, (individuals unknown
to plaintiff), official & individual
capacities; MS. DEBORAH DENHAM,
official & individual capacities; MS.
SARA M. REVELL, official & individual
capacities; MRS. LEYBA, (first name
unknown to plaintiff), official & individual
capacities
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
*
After examining the appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument wouldn’t 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
isn’t binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App.
P. 32.1; 10th Cir. R. 32.1.
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Proceeding pro se,1 federal prisoner Gary Flute Sr. brought this civil action
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). Flute initially alleged five claims against eight defendants. He then
filed an amended complaint—this time asserting 14 claims against the same eight
defendants—after a magistrate judge identified various deficiencies in his original
complaint. The district court screened Flute’s amended complaint under 28 U.S.C.
§ 1915A(a) and dismissed it as frivolous under § 1915A(b)(1).2 Flute appeals.
We review a dismissal for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i) for
an abuse of discretion. Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003).
But it doesn’t appear that we have resolved whether we review a dismissal for
frivolousness under § 1915A(b)(1) under the same standard, or whether we instead
exercise de novo review. See Plunk v. Givens, 234 F.3d 1128, 1130 (10th Cir. 2000);
Robbins v. Cty. of Boulder, 592 F. App’x 710, 712 (10th Cir. 2014) (unpublished).
1
We liberally construe Flute’s pro se filings. But it’s not our role to act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
2
The district court dismissed Flute’s amended complaint—which alleges
claims arising from an August 2015 prison-job reassignment—on October 13, 2017.
On the same day, the district court also dismissed Flute’s amended complaint in a
separate action, which alleged claims arising from a March 2015 incident report and
subsequent disciplinary proceedings. See Flute v. United States, 1:17-CV-01717-
LTB, slip. op. at 2, 6 (D. Colo. Oct. 13, 2017). The district court resolved these cases
in separate orders, see id.; Flute v. United States, No. 1:17-cv-01688-LTB (D. Colo.
Oct. 13, 2017), and Flute has appealed from both. Although Flute raises many of the
same arguments in both appeals, we follow the district court’s lead and resolve the
cases in separate orders issued on the same day. See Flute v. United States, No. 17-
1401 (10th Cir. Jan. 25, 2018).
2
We need not resolve that question here; for the reasons discussed below, Flute’s
arguments fail under either standard.
We turn first to two preliminary matters: Flute argues that the magistrate judge
erred in (1) partially denying his motion for an extension of time to file his amended
complaint and (2) refusing to appoint an attorney to represent him.
According to Flute, the magistrate judge erred by granting him a 30-day
extension of time to file his amended complaint, as opposed to the 60-day extension
that he requested. But even assuming this was error, Flute isn’t entitled to relief
unless he can show that the magistrate judge’s ruling prejudiced him. See 28 U.S.C.
§ 2111 (requiring us to disregard errors that “do not affect the substantial rights of
the parties”); Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (explaining that “party
seeking reversal normally must explain why the erroneous ruling caused harm”).
Here, Flute alleges that “as a result” of the partial denial of his request for an
extension of time, he “did not have enough time in which to prepare the instant
complaint.” Aplt. Br. 4. But Flute doesn’t provide any specific information about
what additions or revisions he might have made to his complaint if the magistrate
judge had given him more time to do so. Nor does he explain how those changes
would have warded off the district court’s ultimate § 1915A(b)(1) dismissal.
Accordingly, we find this argument inadequately briefed and decline to consider it.
See Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s brief to include “appellant’s
contentions and the reasons for them”); Bronson v. Swensen, 500 F.3d 1099, 1104
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(10th Cir. 2007) (noting we routinely refuse to consider arguments that fail to meet
Rule 28’s requirements).
For related reasons, we decline to address Flute’s argument that the magistrate
judge erred in denying Flute’s motion to appoint counsel. The magistrate judge
denied Flute’s request as premature. And Flute makes no attempt to explain why that
characterization was incorrect. Flute does suggest that he later renewed his request
for counsel in his subsequent motion for an extension of time. But we see no explicit
request for counsel there.3 Neither, apparently, did the magistrate judge; his ruling on
that motion addressed only Flute’s request for an extension.
In sum, Flute provides neither (1) a basis for disturbing the magistrate judge’s
initial ruling denying his request for counsel as premature nor (2) a record citation
establishing that this issue was subsequently “raised and ruled on.” 10th Cir. R.
28.2(C)(2). Thus, we won’t reverse on this basis. See Nixon v. City & Cty. of Denver,
784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to explain to
us why the district court’s decision was wrong.”); Salt Lake Tribune Publ’g Co. v.
Mgmt. Planning, Inc., 454 F.3d 1128, 1142 (10th Cir. 2006) (declining to address
issue that district court didn’t rule on, even though parties fully briefed it below).
We turn next to Flute’s challenges to the district court’s order dismissing his
complaint as frivolous. First, Flute generally asserts that the district court
“incorrectly decide[d] the facts.” Aplt. Br. 6. But Flute fails to identify any specific
3
Instead, it appears that Flute cited his lack of counsel as one of the reasons he
needed additional time to prepare and submit his amended complaint.
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factual findings or explain why they are incorrect. And even assuming the district
court made erroneous factual findings, Flute fails to explain how those findings
affected its ultimate ruling. Accordingly, we treat this argument as waived and
decline to consider it. See Bronson, 500 F.3d at 1104.
Second, Flute asserts that the district court erred in failing to provide him with
“any proper USM-285 forms,” Aplt. Br. 6, which are “used to request service of
process,” Kiley v. Kurtz, 533 F. Supp. 465, 467 (D. Colo. 1982). But Flute doesn’t
suggest he ever asked the district court to provide him with such forms. Nor does he
explain how the district court’s alleged failure to do so prejudiced him. And we don’t
see how it could have; the district court dismissed Flute’s complaint because it
determined that his claims are legally frivolous, not because Flute failed to
adequately serve the defendants. Thus, any failure to provide the forms doesn’t
constitute a basis for reversal. See § 2111; Sanders, 556 U.S. at 410.
Third, Flute argues that the district court overlooked his claim that the
defendants violated his constitutional rights by placing him “in Food Service when
[he] already had a job assignment,” Aplt. Br. 2, in violation of a Federal Bureau of
Prisons policy. We disagree. The district court acknowledged that this job transfer
formed the basis of Flute’s claims and then proceeded to explain why the claims were
nevertheless meritless. Thus, contrary to Flute’s assertions, the district court did not
overlook this potential basis for relief.
Fourth, Flute argues that by sua sponte dismissing his complaint, the district
court improperly advocated for the defendants in violation of Greenlaw v. United
5
States, 554 U.S. 237 (2008). Specifically, he suggests the district court ran afoul of
Greenlaw’s pronouncement that under “our adversary system,” we “assign to courts
the role of neutral arbiter of matters the parties present.” Id. at 243. Here, Flute points
out, the defendants didn’t “present” any arguments at all. Id.
But Greenlaw’s actual holding—that “an appellate court may not alter a
judgment to benefit a nonappealing party,” id. at 244—didn’t prohibit the district
court from sua sponte dismissing Flute’s complaint. In fact, the district court’s
actions weren’t just permissible; they were mandatory. See § 1915A(a) (requiring
court to “review . . . a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity”);
§ 1915A(b)(1) (requiring court to dismiss if it determines “the complaint . . . is
frivolous”). Accordingly, the district court’s sua sponte decision to dismiss Flute’s
complaint is not, as he alleges, “violative of clearly established federal law under
[Greenlaw].” Aplt. Br. 3.
Finally, Flute suggests that the district court erred in failing to recognize that
he was asserting a First Amendment claim. We agree that Flute’s amended complaint
invokes the First Amendment. But we disagree that the district court failed to
recognize as much; it construed Flute’s First Amendment claim as a retaliation claim
and then analyzed it under the three-part test we identified in Shero v. City of Grove,
510 F.3d 1196, 1203 (10th Cir. 2007). Because Flute neither suggests that the district
court erred in construing his First Amendment claim as a retaliation claim nor cites
any error in the district court’s retaliation analysis, we decline to reverse on this
6
basis. See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (“The argument
section of [appellants’] opening brief does not challenge the court’s reasoning on this
point. We therefore do not address the matter.”).
In short, Flute fails to establish that the district court erred in dismissing his
complaint as frivolous. He also fails to demonstrate “the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Accordingly, we deny
his motion to proceed in forma pauperis, see id., remind Flute that he must
immediately pay any remaining filing fees, and dismiss this appeal as frivolous, see
§ 1915(e)(2)(B)(i). As a result, we note that Flute now has three strikes for purposes
of § 1915(g). See Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1175 (10th Cir.
2011) (holding that dismissal under § 1915A “counts as a strike when the action was
dismissed as frivolous, malicious, or for failure to state a claim”); Flute v. Ruehling,
No. 08-cv-484-MJR, 2009 WL 728570, at *1, 3 (S.D. Ill. Mar. 18, 2009) (dismissing
Flute’s complaint under § 1915A and assessing strike); cf. Jennings v. Natrona Cty.
Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as
frivolous the appeal of an action the district court dismissed [as frivolous], both
dismissals count as strikes.”), abrogated in part on other grounds by Coleman v.
Tollefson, 135 S. Ct. 1759 (2015).
Entered for the Court
Nancy L. Moritz
Circuit Judge
7