Bustillo v. Hawk

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 2, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FERNANDO BUSTILLO,
Plaintiff-Appellant,
No. 04-1069
v. (D.C. No. 97-WM-445 (PAC))
(D. Colo.)
KATHLEEN HAWK; G.
HERSHBERGER; T. FLEMING;
JENIFER GRUNDY; LOUIS WINN;
R. BRYANT; ROBERT BAYSINGER;
R. K. STEVEN; KAREN TODD; T.
SMITH; T. JENKS; J. BENAVIDEZ;
J. RYMER; ELENA WHITE; MAX
DEAKINS; DAVID GRAYSON;
MICHELLE GREEN; JEAN
EDWARDS; J. OLIVER; M. E.
SWOPE; JOHN BATULIS;
ADAM HOLLADAY; MICHAEL
BERGER; RICHARD BROWN;
MICHAEL BERNHARDT; J.
BALTAZAR; R. KURETICH; B.
TARNASKI; M. MANESS; M.
BARRY, in their official and
individual capacities,
Defendants-Appellees,
and
PATRICK KANE; CLARENCE
STRATMAN; R. RAU, in their
official and individual capacities,
Defendants.
ORDER AND JUDGMENT *
Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Plaintiff-appellant Fernando Bustillo is a prisoner at the United States
Penitentiary-Administrative Maximum at Florence, Colorado, where he has been
serving, in addition to other sentences, a life sentence for murder. He brought
this civil rights suit under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics , 403 U.S. 388 (1971), asserting numerous claims under the
First, Fifth, and Eighth Amendments against thirty-three defendants–including
prison guards, their supervisors, the warden, the assistant warden, prison
librarians, prison medical staff, and others–in both their individual and official
capacities. His claims were based on events in 1996 that he characterized as “an
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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ongoing campaign of harassment, intimidation, and violence against plaintiff in
retaliation for petitioning the Courts for redress of grievances.” R., Complaint
at 1.
Appellant originally filed this suit in the District Court for the District of
Columbia in August 1996, but after some initial, non-dispositive proceedings, it
was transferred to the District of Colorado. The claims against defendant Kane
were dismissed due to his death. The claims against defendant Stratman were
dismissed on May 25, 2000, before he ever filed a responsive pleading in the
district court. Id. , Doc. 257; Doc. 261, at 2-3. Defendants-appellees maintain
that defendant Rau was never served and did not appear in the district court,
although they do not point to any district court order stating as much; it suffices
for us to say that appellant does not raise any specific issue with respect to
defendant Rau until his reply brief, and it is therefore deemed waived, see Codner
v. United States , 17 F.3d 1331, 1332 n.2 (10th Cir. 1994). The district court
granted in full the dispositive motions filed by the following twenty defendants:
Barry, Benavides, Berger, Bernhardt, Brown, Bryant, Deakins, Edwards, Fleming,
Grayson, Green, Grundy, Hawk, Holladay, Hershberger, Rymer, Steven, Todd,
White, and Winn. R., Docs. 195, 207, 211, 249, 261, 386, 403. The district court
granted in part the dispositive motions filed by the following ten defendants:
Baltazar, Batulis, Baysinger, Jenks, Kuretich, Maness, Oliver, Smith, Swope, and
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Tarnaski. Id. , Docs. 195, 211, 249, 261, 386, 403. The remaining claims against
the latter defendants were tried to a jury. Upon the close of the evidence at trial,
the district court dismissed the claims against defendant Swope, id. , Doc. 501,
and the claims against defendants Baltazar and Jenks were dismissed on
stipulation of the parties, id. The jury returned a verdict in favor of the remaining
defendants. Id. , Docs. 503, 506. Appellant appeals, appearing pro se on appeal.
The district court granted appellant leave to proceed in forma pauperis on appeal.
Appellant designates six, and only six, issues for appeal. See Aplt. Reply
Br. at 26. These six issues (which we list in a different order than appellant
presented them in his opening brief) are: (1) whether he was denied an impartial
judge and magistrate judge; (2) whether the district court abused its discretion in
denying his numerous motions for sanctions; (3) whether the district court
knowingly employed improper procedures in denying documents that he had
subpoenaed; (4) whether the district court denied him due process and equal
protection of the laws by holding a jury trial via closed-circuit television where he
was in shackles and a stun belt; (5) whether the district court lacked jurisdiction
to grant defendants an extension of time to file their bill of costs; and (6) whether
defendants were entitled to summary judgment on his claims for interference with
access to the courts; interference with access to the prison’s grievance
procedures; denial of exercise, running water in his cell, and medical treatment
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for his hepatitis and hunger pains; retaliation; and unconstitutional disciplinary
proceedings.
First, we briefly address what appellant has not challenged on appeal.
Appellant does not challenge the district court’s dismissal of his claims for money
damages against all of the defendants in their official capacities as barred by
sovereign immunity. Therefore, those dismissals are affirmed without discussion.
Appellant has not raised an issue challenging the district court’s dismissal of
some of his claims under Fed. R. Civ. P. 12(b)(6). Therefore, those decisions are
affirmed without discussion. Appellant does not challenge the jury instructions or
the jury verdicts, and they are affirmed without discussion.
Now we address the issues appellant has actually raised. Appellant argues
that the district court erred in deciding to hold the trial by closed-circuit
television and to allow appellant and his inmate witnesses to be kept in full
restraints. Appellant challenged the use of full restraints before trial, see R.,
Doc. 498, at 1-2, and his objection to conducting the trial by closed-circuit
television is noted in the final pretrial order, id. , Doc. 434, at 23 at Part 9. But he
utterly fails to address on appeal the district court’s obvious reason for its
rulings–that these measures were necessary to maintain security, considering that
appellant and his inmate witnesses are prisoners in the highest security prison in
the nation. See, e.g. , id. , Doc. 526, at 3. Appellant’s conclusory arguments that
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closed-circuit television impairs the senses of sight and hearing and that restraints
limited his movement are frivolous.
Appellant’s arguments that he was denied an impartial judge and magistrate
judge are frivolous. Adverse rulings alone are rarely sufficient to demonstrate
bias. Liteky v. United States , 510 U.S. 540, 555 (1994). Appellant’s allegations
of judicial deceit, perjury, and bias are based on nothing but his opinion and
speculation, and are therefore insufficient to form a basis for recusal. See
Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987).
Appellant’s arguments that the district court abused its discretion in
denying his numerous motions for sanctions against defense counsel and his
appointed counsel are frivolous and do not warrant discussion.
Appellant’s argument that the district court knowingly employed improper
procedures in denying documents that he had subpoenaed is frivolous. He fails to
identify the specific documents he means, and fails in his obligation to provide a
legal basis for any document to have been procured. See Phillips v. Calhoun ,
956 F.2d 949, 953 (10th Cir. 1992).
Appellant’s argument that the district court lacked jurisdiction to grant
defendants an extension of time to file their bill of costs is based on his
misunderstanding of the procedural rules, which the district court explained. See
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R., Doc. 526, at 4-5. Appellant’s argument related to defendants’ bill of costs is
therefore frivolous.
Finally, we address appellant’s arguments that summary judgment was
improperly granted. “We review the grant of summary judgment de novo
applying the same standard as the district court embodied in
[Fed. R. Civ. P.] 56(c).” Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670
(10th Cir. 1998). “Summary judgment is proper if the movant[s] demonstrate[]
that there is ‘no genuine issue as to any material fact’ and that [they are] ‘entitled
to a judgment as a matter of law.’” Id. (quoting Rule 56(c)).
Appellant’s arguments directed at the district court’s summary judgment
decisions, though he has presented them in two long briefs, are inadequate for our
consideration. Appellant clearly misunderstands his burdens on summary
judgment and on appeal. After defendants moved for summary judgment,
attaching their declarations denying the allegations in appellant’s verified
complaint, the burden shifted to appellant to produce evidence tending to prove
every element of each and every one of his claims–sufficient evidence to require
submission of every claim to the jury. See Anderson v. Liberty Lobby, Inc. ,
477 U.S. 242, 247-250 (1986). Because we apply the same legal standard on
appeal, appellant is obligated to point us to specific evidence against specific
defendants on specific claims, showing that the district court erred in granting
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summary judgment because there were genuine issues of material fact to be tried.
See id. ; see also Adler , 144 F.3d at 671-72. Summary judgment is appropriate
“against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). It
is insufficient, both in the district court and in this court, for appellant to rely on
vague generalities and conclusory assertions that he proved up his claims. See
United States v. Rodriguez-Aguirre , 108 F.3d 1228, 1237 n.8 (10th Cir. 1997);
Hernandez v. Starbuck , 69 F.3d 1089, 1093 (10th Cir. 1995). Despite appellant’s
inadequate briefing, however, we have thoroughly reviewed the record, including
appellant’s evidence, and we are convinced that the district court correctly
granted summary judgment where appropriate, and appropriately reserved claims
for trial to the extent appellant produced specific evidence to create genuine
issues of material fact.
This court must dismiss an in forma pauperis appeal if it determines that
the appeal is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i); see also Stafford v. United
States , 208 F.3d 1177, 1179 n.4 (10th Cir. 2000) (citing 28 U.S.C.
§ 1915(e)(2)(B)). An appeal is frivolous if “it lacks an arguable basis in either
law or fact.” Thompson v. Gibson , 289 F.3d 1218, 1222 (10th Cir. 2002). We
hold that this appeal is frivolous, and therefore it is DISMISSED. This appeal
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counts as a strike under 28 U.S.C. § 1915(g). Appellant is reminded that he
remains obligated to make partial payments to this court until the entire appellate
filing fee is paid in accordance with 28 U.S.C. § 1915(b). Appellant’s motion to
strike appellees’ answer brief and for monetary sanctions is denied. Appellant’s
motion for free trial transcripts is denied. The mandate shall issue forthwith.
Entered for the Court
David M. Ebel
Circuit Judge
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