Requena v. Roberts

• Decision Date: 22 June 2018
• Docket Number: No. 17-3040,17-3040
• Citation: 893 F.3d 1195
• Parties: Adrian M. REQUENA, Plaintiff–Appellant, v. Ray ROBERTS, Secretary of Corrections, in his individual and official capacity ; Sam Cline, Warden, in his individual and official capacity ; Berry Larson, Deputy Warden, in his individual and official capacity ; James Reeves, Major, in his individual and official capacity ; Thomas L. Williams, Unit Team Manager, in his individual and official capacity ; M. Lamb, CCI, in his individual and official capacity ; Joshua Pettay, CSI, in his individual and official capacity ; C. McGehee, COI, in her individual and official capacity ; G. Riemann, CCI, in his individual and official capacity ; C. Schneider, CCII, in his individual and official capacity ; (fnu) Chick, Lieutenant, in his individual and official capacity ; Douglas W. Burris, Secretary of Corrections Designee, in his individual and official capacity ; Jon Graves, Administrative Counsel, in his individual and official capacity ; Debra Lundry, RN, in her individual and official capacity ; T. Brown, CCII, in her individual and official capacity ; W. Dusseau, CCII, in his individual and official capacity ; G. Sheridan, CCII, in his individual and official capacity ; (fnu) Newkirk, CCI, in her individual and official capacity ; (fnu) Guillam, CSI, in his individual and official capacity ; Allison Schrader, CCII, in her individual and official capacity ; Don Langford, Deputy Warden, in his individual and official capacity ; (fnu) Nickels, Unit Team Manager, in his individual and official capacity ; Roland Potter, Lieutenant, in his individual and official capacity ; M. Wagner, CSI, in his individual and official capacity ; (fnu) Crotts, CSI, in his individual and official capacity ; P. Keen, COI, in her individual and official capacity ; (fnu) Rhine, Librarian, in her individual and official capacity ; M. Cranston, MHP, in his individual and official capacity ; John Doe, CO, in his individual and official capacity ; Jane Doe, LPN, in her individual and official capacity ; James Heimgartner, Warden, in his individual and official capacity ; J. Watson, Unit Team Manager, in his individual and official capacity ; (fnu) Kelly, Lieutenant, in his individual and official capacity ; (fnu) Rodriguez, COII, in his individual and official capacity ; D. J. Fromm, Food Service Director, in his individual and official capacity ; S. C. Wilson, LCP, in his individual and official capacity ; (fnu) Barnt, BHP, in her individual and official capacity ; D. Rogge, Director of Nursing, in his individual and official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

893 F.3d 1195

Adrian M. REQUENA, Plaintiff–Appellant,

v.Ray ROBERTS, Secretary of Corrections, in his individual and official capacity ; Sam Cline, Warden, in his individual and official capacity ; Berry Larson, Deputy Warden, in his individual and official capacity ; James Reeves, Major, in his individual and official capacity ; Thomas L. Williams, Unit Team Manager, in his individual and official capacity ; M. Lamb, CCI, in his individual and official capacity ; Joshua Pettay, CSI, in his individual and official capacity ; C. McGehee, COI, in her individual and official capacity ; G. Riemann, CCI, in his individual and official capacity ; C. Schneider, CCII, in his individual and official capacity ; (fnu) Chick, Lieutenant, in his individual and official capacity ; Douglas W. Burris, Secretary of Corrections Designee, in his individual and official capacity ; Jon Graves, Administrative Counsel, in his individual and official capacity ; Debra Lundry, RN, in her individual and official capacity ; T. Brown, CCII, in her individual and official capacity ; W. Dusseau, CCII, in his individual and official capacity ; G. Sheridan, CCII, in his individual and official capacity ; (fnu) Newkirk, CCI, in her individual and official capacity ; (fnu) Guillam, CSI, in his individual and official capacity ; Allison Schrader, CCII, in her individual and official capacity ; Don Langford, Deputy Warden, in his individual and official capacity ; (fnu) Nickels, Unit Team Manager, in his individual and official capacity ; Roland Potter, Lieutenant, in his individual and official capacity ; M. Wagner, CSI, in his individual and official capacity ; (fnu) Crotts, CSI, in his individual and official capacity ; P. Keen, COI, in her individual and official capacity ; (fnu) Rhine, Librarian, in her individual and official capacity ; M. Cranston, MHP, in his individual and official capacity ; John Doe, CO, in his individual and official capacity ; Jane Doe, LPN, in her individual and official capacity ; James Heimgartner, Warden, in his individual and official capacity ; J. Watson, Unit Team Manager, in his individual and official capacity ; (fnu) Kelly, Lieutenant, in his individual and official capacity ; (fnu) Rodriguez, COII, in his individual and official capacity ; D. J. Fromm, Food Service Director, in his individual and official capacity ; S. C. Wilson, LCP, in his individual and official capacity ; (fnu) Barnt, BHP, in her individual and official capacity ; D. Rogge, Director of Nursing, in his individual and official capacity, Defendants–Appellees.

No. 17-3040

United States Court of Appeals, Tenth Circuit.

FILED June 22, 2018

Submitted on appellant's brief:^*

Adrian M. Requena, Pro se.

Before BRISCOE, O'BRIEN, and BACHARACH, Circuit Judges.

O'BRIEN, Circuit Judge.

Adrian M. Requena is an inmate housed by the Kansas Department of Corrections (KDOC). His initial 42 U.S.C. § 1983 complaint named 11 prison employees as defendants and alleged various violations of his First, Eighth, and Fourteenth Amendment rights. Two months later, he amended that complaint, without leave to do so, again asserting various violations of his constitutional rights and adding nine defendants. The district judge screened that complaint as required by 28 U.S.C. § 1915A(a). After setting forth the claims, he decided they were "not linked by a common question of law or fact, involve different defendants, and arose from different transactions." (R. Vol. 1 at 379.) He concluded Requena "may not present all of the claims in a single action" and directed him to decide which claims he wished to pursue and file a second amended complaint accordingly. (Id. )

The second amended complaint (hereinafter complaint) named 38 defendants and alleged myriad violations of his First, Eighth, and Fourteenth Amendment rights. Attached to the complaint was over 450 pages of exhibits. The complaint fell far short of containing "a short and plain statement" of the claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2). Nor did it provide any citations to the exhibits to aid the judge (or us) in navigating the swamp.¹

The judge did another § 1915A(a) screening of the complaint. He concluded "many of [the] claims lack support or substance, and much of the material submitted as exhibits appears to be irrelevant and disorganized." (R. Vol. 1 at 1150.) At the end of the day, the judge identified two claims meriting discussion—(1) denial of hygiene supplies and (2) denial of access to the courts. Both failed to state a claim for relief. He dismissed the entire complaint with prejudice,² but did not first explicitly address whether amendment of the complaint would be futile, even though Requena's complaint requested leave to amend if necessary to cure any deficiencies.³ Judgment was entered the same day. Requena filed a motion to alter or amend judgment, which the judge denied.

Our review is de novo. McBride v. Deer , 240 F.3d 1287, 1289 (10th Cir. 2001). In conducting our review, we "accept all ... well-pleaded allegations ... as true and ... construe them in the light most favorable to the plaintiff." Young v. Davis , 554 F.3d 1254, 1256 (10th Cir. 2009) (quotation marks omitted). To survive dismissal, "[a] plaintiff must nudge his claims across the line from conceivable to plausible...." Khalik v. United Air Lines , 671 F.3d 1188, 1190 (10th Cir. 2012) (brackets and quotation marks omitted). "[T]he complaint [must] include[ ] enough facts to state a claim to relief that is plausible on its face." Young , 554 F.3d at 1256 (quotations omitted); see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We also consider the exhibits to Requena's complaint in determining whether he stated plausible claims. Gee v. Pacheco , 627 F.3d 1178, 1186 (10th Cir. 2010). Ordinarily, "[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kan. Dep't of Corr. , 165 F.3d 803, 806 (10th Cir. 1999).

Because Requena appeared pro se, we liberally construe his pleadings. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). Nevertheless, he bears "the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). In doing so, he must comply with the same rules of procedure as other litigants. Ogden v. San Juan Cty. , 32 F.3d 452, 455 (10th Cir. 1994).

Requena (still pro se) has failed to follow the federal rules of appellate procedure. Rule 28(a)(6) requires briefs to contain "a concise statement of the case setting out the facts relevant to the issues submitted for review ... with appropriate references to the record ." (Emphasis added). In his brief, he provides us with a nine-page statement of the facts with no record citations. His cavalier approach has made our review overly and unnecessarily burdensome. We will not act as his counsel, searching the record for arguments he could have, but did not, make, particularly when he has not made the slightest effort to tie his arguments to the record.

In his brief, he raises eight arguments addressing nine different claims. However, because he failed to raise one of those claims in the complaint, we will not consider it.⁴ Similarly, although the complaint raised numerous claims, we will address only those challenged on appeal. See Coleman v. B–G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997) ("Issues not raised in the opening brief are deemed abandoned or waived."). To reiterate, we will not consider arguments on appeal not tied to the allegations in the complaint and we will not consider claims in the complaint not raised on appeal.

Although the judge did not explicitly address futility of amendment, it is implicit in his treatment of the case (a series of patiently delivered orders) that he considered further amendment futile. We nevertheless consider futility, as it is a question of law. Cohen v. Longshore , 621 F.3d 1311, 1314–15 (10th Cir. 2010). In doing so, however, we will not conjure facts Requena might conceivably raise in support of his claims; that would make us his advocate. Our restraint is particularly critical when he made no appropriate effort in the district court to seek amendment or to indicate, there or here, how amending his complaint would cure its deficiencies (he contends, implicitly at least, that his pleadings are adequate). A proper motion to amend, accompanied by a proposed amended complaint or a detailed description of proposed amendments, provides notice to the screening judge (and the opposing parties when appropriate) of the purpose to be served by the amendment. Calderon v. Kan. Dep't of Soc. & Rehab. Servs. , 181 F.3d 1180, 1186–87 (10th Cir. 1999). It should include reality-based facts in sufficient detail to satisfy Iqbal and Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). If properly done the judge can fairly decide whether amendment would be fruitful. Anything less simply invites a "merry-go-round" ride. But here, the failure of a disciplined approach is ameliorated. Requena has provided us with "everything but the kitchen sink," attaching what appears to be every grievance and claim he filed in the prison for over two years (October 2011 to February 2014). We have reviewed his complaint AND the materials pertinent to each claim in deciding whether amendment would be futile. Most likely, we have here merely repeated the district judge's thought processes (which he often did not explain) in evaluating Requena's claims. We do so as a matter of judicial economy, all the while recognizing that thorough explanation by the district court would obviate our need to do so. That said, avoiding a remand to the district court for a detailed explanation of what is by now patently...