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Pemberton v. Patton

United States Court of Appeals, Tenth Circuit

January 25, 2016

PAUL CURTIS PEMBERTON, Plaintiff - Appellant,
v.
ROBERT C. PATTON, New Director of the Oklahoma Department of Corrections Substitute, in his official capacity; MARY FALLIN, Governor of the State of Oklahoma, in her official capacity only; JUSTIN JONES, individually and as Past Director of the Oklahoma Department of Corrections; JOHN DOE, individually and in his official capacity; JANE DOE, individually and in her official capacity; DEBBIE MORTON, individually and in her official capacity; WALTER DINWIDDIE, individually and in his official capacity; ANITA TRAMMELL, individually and in her official capacity; SALLY WIGGINS, individually and in her official capacity; JAMES RUDEK, in his individual and official capacity; TRACY MCCOLLUM, in his individual and official capacity; CARL BEAR, individually and in his official capacity; JO BETH HARVEY-HAYNES, Individually and in her official capacity; GREG BROOKS, in his individual and official capacity; KERRY KENDAL, in his official and individual capacity; DAVID WORTHAM, in his individual and official capacity; PAULA BETHEA, individually and in her official capacity; OUIDA NICKELL, individually; CHERYL WALL, individually; MELONIE ALMAGUER, individually; ALICIA GURRERO, individually; L. D. ORMAND, individually; E. SCOTT PRUITT, Attorney General of the State of Oklahoma, in his official capacity only, Defendants-Appellees.

(D.C. No. 5:14-CV-00129-D) (W.D. Okla.)

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.

ORDER AND JUDGMENT [*]

Bobby R. Baldock Circuit Judge

Paul Curtis Pemberton, an Oklahoma inmate proceeding pro se, appeals the district court's dismissal of his 42 U.S.C. § 1983 civil rights complaint against numerous defendants, mostly prison officials. The district court determined Mr. Pemberton's appeal was frivolous and denied his motion to proceed on appeal without prepayment of fees under 28 U.S.C. § 1915. Mr. Pemberton renews his § 1915 motion here. Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss the appeal as frivolous, deny the § 1915 motion, and impose a "strike" under § 1915(g).

I. Background

Mr. Pemberton is serving a life sentence in the custody of the Oklahoma Department of Corrections. In a prior case, filed on September 7, 2010, he asserted some claims that were similar to claims he raised in this case. See Pemberton v. Jones, No. CIV-10-966-D, 2011 WL 1598194 (W.D. Okla. Apr. 27, 2011) ("Pemberton I") (unpublished order). On April 27, 2011, the district court dismissed all of the claims in Pemberton I, some with prejudice and some without, and assessed a "strike" under § 1915(g). Id. at *5. This court dismissed Mr. Pemberton's appeal on March 16, 2012, and the Supreme Court denied his petition for writ of certiorari on October 9, 2012.

Mr. Pemberton initiated this case in February 2014. In his 265-page complaint, he alleged numerous violations of his constitutional rights during his confinement. No response was filed. The district court referred the case to a magistrate judge, who issued a thorough, 53-page report and recommendation. Mr. Pemberton filed objections to the report. The district court overruled the objections and adopted the magistrate judge's report in its entirety, dismissing Mr. Pemberton's complaint for failure to state a claim and assessing another "strike" under § 1915(g).

In this appeal, Mr. Pemberton argues that the district court erred by (1) analyzing improperly his motion to join additional party defendants, (2) including in the case two defendants who were not named in the caption, (3) interpreting the complaint to include claims for money damages against some defendants in their official capacities, (4) misapplying the applicable statute of limitations, (5) misapplying the requirement to exhaust administrative remedies, (6) declining to apply equitable tolling, (7) incorrectly reading his complaint, and (8) denying his motion to proceed on appeal without prepayment of fees.

In addition, two motions filed in this court remain pending: Mr. Pemberton's renewed motion to proceed on appeal without prepayment of fees and his motion to remand the case to the district court.

II. Analysis

We review de novo the dismissal of a complaint for failure to state a claim. Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013). We construe Mr. Pemberton's pro se pleadings liberally. Id. However, pro se parties must follow the same rules of procedure as other litigants. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). We will not supply additional factual allegations or construct a legal theory on his behalf. Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). We accept the well-pleaded allegations in the complaint as true and construe them in the light most favorable to Mr. Pemberton. Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). But we are not bound to accept legal conclusions couched as factual allegations. Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir. 2013).

We review for an abuse of discretion the district court's denial of a motion to proceed on appeal without prepayment of fees. Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). A court may not deny such applications arbitrarily or on erroneous grounds. Id. at 1313.

A. Motion to Join Additional Party Defendants

The caption of Mr. Pemberton's original complaint did not include the names of defendants Mary Fallin and E. Scott Pruitt, though both were mentioned in the complaint. In response to Mr. Pemberton's motion to add them to the case, the magistrate judge amended the caption to include them. Later, the district court accepted the magistrate judge's determination that Mr. Pemberton had ...


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