Easter v. Damron

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 14, 2007
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
DEE ARLIN EASTER,
Plaintiff-Appellant,
v. Nos. 06-6288 & 06-6346
(D.C. No. 05-cv-509-F)
LARRY DAMRON, District 2 Drug (W.D. Okla.)
Task Force; R.C. DANIELS, Officer,
District 2 Drug Task Force, WADE
LOWERY, Deputy Sheriff,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.
Dee Arlin Easter sued for damages and injunctive relief under 42 U.S.C.
§ 1983 for an alleged violation of his civil rights. The district court dismissed his
complaint against defendant Wade Lowery for failure to obtain service of process
and later granted summary judgment in favor of defendants Larry Damron and
*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
R.C. Daniel on the grounds of qualified immunity. We have jurisdiction under
28 U.S.C. § 1291 and we affirm.
Background
On May 2, 2003, an Oklahoma state-court judge signed a search warrant for
Mr. Easter’s home in Sayre, Oklahoma. On May 9, officers Damron and Daniel,
assisted by deputy sheriff Lowery, executed the search warrant. According to
Mr. Easter’s deposition testimony, he was breaking up a brick of marijuana in his
kitchen when he heard the doorbell ring, followed immediately by a loud knock.
He heard loud voices outside, but could not understand what was being said.
Thinking that it might be his son, he “put everything down and hollered ‘[j]ust a
minute,’ and [] started to the door.” Aplt. App., Doc. 49, Ex. C at 8-9.
There were two kicks on the door, and while Mr. Easter was unlocking the
door and had his hand on the knob, a third kick forced the door open. Officer
Daniel pointed a gun at his head and ordered him to “hit the floor.” Id. at 13.
While he was turned to the side, Officer Daniel struck him on the left shoulder
with his open hand to force him to the floor. It was then that Mr. Easter lost his
balance and fell on his left arm. Deputy Lowery tried three times to cuff his
hands behind his back, but Mr. Easter told him to stop because his arm was hurt.
Deputy Lowery then helped him to his feet and handcuffed him in front.
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Following a search of the home, Deputy Lowery took Mr. Easter to the
hospital where x-rays revealed that his left shoulder was fractured as a result of
the fall. He was eventually released and allowed to return home.
Analysis
This first issue concerns the district court’s order for summary judgment in
favor of Officers Daniel and Damron on the grounds of qualified immunity. In
his brief, Mr. Easter frames the issue as “[e]xcessive [f]orce and [b]rutality.”
Aplt. Br. at 3. As authority he cites Farrell v. McDonough, 966 F.2d 279(7th Cir. 1992), but Farrell has nothing to do with the merits of a § 1983 case.
Instead, it holds that an Illinois prison inmate’s § 1983 complaint against a prison
official is governed by Illinois’ two-year statute of limitations for personal injury
suits. Mr. Easter further argues in a conclusory fashion that the court should have
analyzed his § 1983 claim under the Eighth Amendment. However, he does not
cite any authority for this proposition. Although we construe his pro se pleading
liberally, the failure to “advanc[e] [any] reasoned argument as to the grounds for
the appeal,” is insufficient appellate argument. Am. Airlines v. Christensen,
967 F.2d 410, 415 n.8 (10th Cir. 1992).
Next, Mr. Easter argues that the district court erred by denying his requests
to appoint counsel. We review the court’s refusal to appoint counsel for an
indigent prisoner in a civil lawsuit for an abuse of discretion. Steffey v. Orman,
461 F.3d 1218, 1223 (10th Cir. 2006). The burden was on Mr. Easter “to
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convince the [district] court that there [wa]s sufficient merit to his claim to
warrant the appointment of counsel. . . . Only in those extreme cases where the
lack of counsel results in fundamental unfairness will the district court’s decision
be overturned.” Id. (quotation marks omitted).
The district court’s decision to deny Mr. Easter’s requests for appointed
counsel did not result in fundamental fairness. His complaint adequately
explained the factual and legal basis for his claim, and the court construed his
pleadings liberally. Therefore, there was no abuse of discretion.
Last, Mr. Easter argues that the district court erred in granting Deputy
Lowery’s motion to quash the summons that was served after the claims against
him were dismissed without prejudice for failure to obtain service of process. 1
“Because [Mr. Easter] is representing himself, we liberally construe his pleadings;
however, we do not act as his advocate.” Cardoso v. Calbone, 490 F.3d 1194,
1197 (10th Cir. 2007). In his brief, however, he never mentions the motion to
quash, recommendation, or order whatsoever. We therefore consider the issue
waived on appeal. Arst v. Stifel, Nicolaus & Co., Inc., 86 F.3d 973, 981 n.7
(10th Cir. 1996).
1
At the time Mr. Easter filed his notice of appeal from the district court’s
order granting the motion to quash, which was assigned 06-6288, a final judgment
under 28 U.S.C. §1291 had not entered. Therefore, the order granting the motion
to quash merged with the court’s final judgment entered November 6, 2006 and
appealed in 06-6346. The initial redundant appeal 06-6288 is dismissed as moot.
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The judgment of the district court is AFFIRMED. Mr. Easter’s motion in
06-6288 to proceed on appeal without prepayment of fees is DENIED as moot in
light of our disposition of that redundant appeal. And because Mr. Easter has
paid in full the filing fee in 06-6346, no further payment is due. We GRANT
Kathryn D. Terry’s motion to withdraw as counsel for Larry Damron and R.C.
Daniel.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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