Richardson v. Werner ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 29, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
SHELBY RICHARDSON,
Plaintiff - Appellant,
v. No. 19-1043
(D.C. No. 1:18-CV-02432-LTB)
SERGEANT WERNER, Washington (D. Colo.)
County Jail, Sheriff’s Office;
DEPUTY SMERE, Washington
County Jail, Sheriff’s Office,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HOLMES, MURPHY, and CARSON, Circuit Judges.
After examining the parties’ briefs and the 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This order and judgment is not binding precedent except under the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.
Shelby Richardson filed a 42 U.S.C. § 1983 civil rights complaint, asserting
a claim of constitutionally inadequate medical treatment against two guards at the
Washington County Jail. Richardson asserted he injured his big toe and, in
response the guards provided him with bandages, “which did not stop the bleeding
and told me I could see the nurse the next day.”
Because Richardson was proceeding in forma pauperis, the district court
screened his complaint pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).
Upon such screening, the district court concluded Richardson’s complaint was
legally frivolous because the allegations in his complaint, read liberally and
treated as true, did not come close to demonstrating deliberate indifference on the
part of the defendant guards. Thus, the district court dismissed Richardson’s
complaint. The district court’s decision is soundly based on legal precedent and
principles and Richardson’s brief on appeal, even construed liberally, offers no
authority or argument that calls the decision into question. See Hernandez v.
Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (“Because the appellant comes to
the court of appeals as the challenger, he bears the burden of demonstrating the
alleged error and the precise relief sought.”). Nor does Richardson tie his
appellate arguments, to the extent any exist in his brief, to the facts and to
relevant authorities. See Fed. R. App. P. 29(a)(9) (requiring that the appellant’s
brief contain an argument supported by citations to pertinent legal authorities and
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the parts of the record upon which the appellant relies). Instead, Richardson’s
brief on appeal attempts to hold the defendant guards responsible for each other’s
conduct and the conduct of a non-defendant nurse, an approach Richardson was
specifically informed was at odds with governing law. See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (holding that a
plaintiff like Richardson must explain what each defendant did to him, when the
defendant did it, how the defendant’s action harmed him, and what specific legal
right he believes the defendant violated); see also Kentucky v. Graham, 473 U.S.
159, 166 (1985) (holding that to establish personal participation in the alleged
constitutional violation, a plaintiff must show how each named individual caused
the deprivation of a federal right).
Therefore, for those reasons set out above, this court exercises jurisdiction
pursuant to 28 U.S.C. § 1291 and AFFIRMS the district court’s judgment.
Furthermore, because Richardson’s brief does not 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),
we DENY his request to proceed on appeal in forma pauperis. Richardson is
ordered to immediately remit the entire unpaid balance of the appellate filing fee.
Finally, we DENY Richardson’s motion for appointment of counsel. That motion
is predicated entirely on Richardson’s supposed need for an attorney to litigate
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this case when it goes to trial. Given this court’s affirmance of the district court’s
order dismissing Richardson’s appeal as frivolous, there exists in the record no
basis to appoint counsel on Richardson’s behalf.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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