ADRIAN M. REQUENA, Plaintiff-Appellant,
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.
from the United States District Court for the District of
Kansas (D.C. No. 5:13-CV-03043-SAC)
on appellant's brief:[*]
M. Requena, Pro se.
BRISCOE, O'BRIEN, and BACHARACH, Circuit Judges.
O'BRIEN, CIRCUIT JUDGE.
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.)
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
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,  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. Judgment was entered the
same day. Requena filed a motion to alter or amend judgment,
which the judge denied.
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).
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).
(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.
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.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.
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
Eighth Amendment-Denial of Hygiene
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.
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. 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.
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
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. 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
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.
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
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.
First Amendment-Denial of Access to the Courts
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
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)).
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)).