Requena v. Roberts

          Appeal from the United States District Court for the District of Kansas (D.C. No. 5:13-CV-03043-SAC)

         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 (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 (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 obvious is the most efficient approach.

         A. Eighth Amendment-Denial of Hygiene

         On October 3, 2011, Requena ordered supplies, including hygiene items, from canteen. The next day, he was placed in administrative segregation. He again ordered canteen (presumably also including hygiene items) on October 10. The next day, he was transferred from administrative segregation to disciplinary segregation. That same day, he filed a Request to Staff asking that the supplies he ordered on October 3 be sent to him in disciplinary segregation. The next day, his unit team manager Schneider informed him there are limits on the items inmates can purchase and possess when in disciplinary segregation. As a result, it was likely his canteen items included proscribed items and were therefore returned and the purchase price refunded. He suggested Requena seek confirmation from canteen.

         On October 19, 2011, Requena filed a grievance claiming Warden Sam Cline and his unit team managers, Schneider, Williams, and Riemann, had denied him hygiene supplies since entering disciplinary segregation and he could not reorder the supplies until the previous amounts were refunded to his account. On October 21, 2011, Riemann formally responded to the grievance stating prison policy prohibits inmates from possessing certain items while in disciplinary segregation. Although acknowledging that such inmates are entitled to hygiene items, he informed Requena that because he had ordered both prohibited and permissible items, the entire order was returned. He said the amount of the October 3 order had been refunded to his account and the purchase price of the second order should soon be refunded.^[5] Warden Sam Cline rejected Requena's subsequent appeal on November 10, 2011, finding his account had since been refunded for both canteen orders. He also concluded that based on Requena's previous stints in segregation, he should have known how personal property is handled in administrative and disciplinary segregation. Requena appealed to the Secretary of Corrections, Ray Roberts. Douglas Burris, the Secretary's designee, denied relief. Requena received hygiene supplies on November 2, 2011.

         In his complaint, Requena alleged Schneider, Riemann, Williams, Cline, Burris, and Roberts violated his Eighth Amendment rights by denying him hygiene supplies (soap, toothpaste, and toothbrush) for 30 days. The judge decided "[t]he deprivations alleged, while unpleasant, do not suggest that [Requena] suffered any injury or that he was denied all access to hygiene. His access to hygiene supplies was limited due to his segregated status, but inmates in that status are issued at least small amounts of hygiene supplies." (R. Vol. 1 at 1152.) He concluded the allegations were "not sufficient to state an objectively serious threat to [his] wellbeing or demonstrate deliberate indifference by prison officials, as required to state a claim under the Eighth Amendment." (Id.)

         The judge was mistaken in part-Requena was without any hygiene items in October 2011. But the mistake is understandable considering Requena's undisciplined approach to litigation. The complaint and the materials attached thereto reveal there were two relevant periods of time in which Requena was in segregation-first in October 2011 and then again in February 2012. During both stints, he complained of a lack of hygiene supplies. However, during the February 2012 period, the materials attached to the complaint show he was provided some hygiene items upon entering segregation.^[6] During the October 2011 stint, on the other hand, he alleges he was without hygiene supplies for 30 days and the materials attached to the complaint do not show otherwise. It is this 30-day period in October 2011 of which he complains.

         The judge is correct, however, that the complaint did not allege any injury resulting from the lack of hygiene supplies in October 2011. "A deprivation of hygiene items without any corresponding injury would not state an Eighth Amendment violation." Whitington v. Ortiz, 472 F.3d 804, 808 (10th Cir. 2007); see also Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (per curiam) (denial of toothpaste and razors for over 2 months which caused gums to bleed and recede and tooth decay "raised a genuine issue of material fact in regard to whether prison officials[] . . . caused plaintiff serious harm"); Scott v. Case Manager Owens (SCF), 80 Fed.Appx. 640, 643 (10th Cir. 2003) ("Scott has alleged nothing that suggests he has been subjected to inhumane conditions of confinement. . . . Although a denial of basic hygiene items might meet this standard under extreme conditions, Scott has not come close to alleging a substantial risk of serious harm in this case. In fact, Scott has not alleged any injury whatsoever . . . ." (citations omitted)). Dismissal for failure to state a claim was proper.

         However, as previously stated, the judge did not explicitly say an amendment of the complaint would be futile. On appeal, in the caption of the argument concerning this issue, Requena contends that as the result of the denial of hygiene supplies, he "acquired rashes on his body from not being able to wash off dirt and . . . sustained scars from the rashes." (Appellant Br. at 13.) Such injury might suffice.

         But Requena "failed to take advantage of available opportunities to amend." Weldon v. Ramstad-Hvass, 512 Fed.Appx. 783, 797 (10th Cir. 2013) (unpublished). "If a party seeks to amend a pleading following the court's grant of a motion to dismiss, the party must first move to reopen the case under Fed.R.Civ.P. 59(e) or 60(b) and then file a motion under Fed.R.Civ.P. 15 for leave to amend" which gives "adequate notice . . . of the basis for the proposed amendment." Calderon, 181 F.3d at 1185-87; see also Switzer v. Coan, 261 F.3d 985, 989-90 (10th Cir. 2001) ("[I]t was incumbent upon [the pro se plaintiff] to seek leave from the district court to make the attempt [to amend] after dismissal of his action below." (quotation marks omitted)). Requena filed a post-judgment motion to alter or amend judgment but did not seek leave to amend the complaint in that motion or allege an actual injury resulting from the denial of hygiene items, even though the judge's dismissal order alerted him to this deficiency. Even on appeal, he has not argued he should have been allowed to amend the complaint to cure its deficiencies. Whatever prompted him to forgo a motion to amend, it was not a lack of notice. We decline to allow him the opportunity to amend now.

         B. First Amendment-Denial of Access to the Courts

         In October 2011, Requena submitted several poems to the prison librarian for proofreading. Believing some of the poems were inappropriately directed at her, the librarian reported Requena to prison staff. He was charged with "undue familiarity with a correctional staff member" and, after a disciplinary hearing at which Requena alleges he was unable to present documentary evidence in his favor, he was found guilty. He filed a state petition for post-conviction relief pursuant to Kan. Stat. Ann. § 60-1501 challenging the disciplinary finding. The state court judge rejected his petition concluding "some evidence" existed to support the disciplinary decision. See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (to satisfy due process, there must be "some evidence in the record" supporting a prison disciplinary decision). Requena appealed to the Kansas Court of Appeals. His appellate docketing statement indicated he wanted to challenge the "some evidence" standard as ambiguous and unconstitutional. His appeal was ultimately dismissed for failing to provide the requisite number of copies of his appellate brief.

         In the complaint, Requena alleged certain defendants denied him access to the courts by not allowing him to use his forced savings account to pay to photocopy his appellate brief. The judge dismissed this claim because, inter alia, Requena had not shown "actual injury" as the claim he sought to raise to the Kansas Court of Appeals was frivolous. See Gee, 627 F.3d at 1191 (to state a constitutional claim for denial of access to the courts, "a prisoner must demonstrate actual injury from interference with his access to the courts-that is, that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement" (emphasis added)).

         Here, Requena claims he did plead actual injury-the denial of photocopies prevented him from pursuing a legitimate claim that he was not guilty of the disciplinary action and he was denied due process in the disciplinary hearing because he was not allowed to present documentary evidence showing the poems to have been written ten years earlier. But that was not the claim he presented in the appellate docketing statement. The claim he presented (attacking the "some evidence" rule) had no chance of success and was frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (an argument, like a complaint, "is frivolous where it lacks an arguable basis either in law or in fact"). Simply claiming a long-standing legal doctrine is unconstitutional fails to make the cut. Nevertheless, even if he could allege an actual injury, dismissal was appropriate and amendment of the complaint would be futile because we have already rejected his denial of access claim. See Requena v. Sheridan, 691 Fed.Appx. 523, 525 (10th Cir. 2017) (unpublished). Collateral estoppel (issue preclusion) bars this claim. See Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009) ("Collateral estoppel bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim."); see also Arizona v. California, 530 U.S. 392, 412 (2000) ("[I]f a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised. This result is fully consistent with the policies underlying res judicata: it is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste." (quotation marks omitted)).^[7]

         C. Fourteenth ...