Appellate Case: 23-3046 Document: 010110988380 Date Filed: 01/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 23, 2024 _________________________________ Christopher M. Wolpert Clerk of Court LEON HENDERSON ASKEW,
Plaintiff - Appellant,
v. No. 23-3046 (D.C. No. 5:20-CV-03058-TC) UNITED STATES OF AMERICA, (D. Kan.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, HARTZ, and MORITZ, Circuit Judges. _________________________________
Leon Henderson Askew, a federal prisoner appearing pro se, filed the
underlying lawsuit against the United States and several individual federal
employees, asserting an Eighth Amendment claim for physical and sexual battery and
Kansas state law claims for sexual assault and physical battery pursuant to the
Federal Tort Claims Act (FTCA). The district court dismissed the claims against the
individual defendants and most of the claims against the United States, and granted
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-3046 Document: 010110988380 Date Filed: 01/23/2024 Page: 2
summary judgment on the remaining claim. Mr. Askew appeals the judgment only as
to the United States.1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
The parties stipulated to the following facts in a pretrial order. Mr. Askew
refused to submit to handcuffs to facilitate his transfer. He barricaded himself in his
cell and disabled the locking mechanism. Guards cut the lock and shot pepper ball
spray into his cell before removing the barricade and entering the cell. They
restrained Mr. Askew and escorted him to another cell for documentation and
medical assessment. The assessment indicated that his eye was swollen. He was
taken to another building where his clothing was cut off and he was placed in clean
clothing. A piece of cloth attached to a shoe strap had been wrapped around his
genitals. A Public Health Services (PHS) nurse removed the material. In doing so,
the nurse touched Mr. Askew’s scrotum and penis. Mr. Askew was then transferred
to the Federal Transfer Center in Oklahoma City. While there, he reported eye pain.
Mr. Askew filed an administrative complaint alleging physical and sexual
assault. He then filed suit in district court against the United States, the nurse, four
correctional officers identified as John Doe defendants, and two prison employees
who allegedly attempted to cover up the incident. Mr. Askew alleged that the nurse
1 The John Doe defendants were never served and Mr. Askew did not identify them as appellees in his notice of appeal. He filed a motion indicating that the United States is the only defendant. We construed the motion as a motion to voluntarily dismiss all appellees except the United States from the appeal, see Fed. R. App. P. 42(b)(2), and granted the motion. 2 Appellate Case: 23-3046 Document: 010110988380 Date Filed: 01/23/2024 Page: 3
sexually assaulted him while he was naked and pinned down by the four correctional
officers, that one of the officers hit him with a blunt object, and that the other three
attacked and punched him while he was on the ground. Mr. Askew also asserted
claims against the district court judge who sentenced him.
On screening, the district court dismissed the claims against the sentencing
judge and the two individual defendants involved in the alleged cover up for failure
to state a claim, see 28 U.S.C. § 1915A(a), (b)(1), and allowed the matter to proceed
against the United States, the nurse, and the four correctional officers. The parties
later stipulated to the dismissal of the nurse.
Following discovery and entry of the pretrial order, the United States filed
a combined motion to dismiss and motion for summary judgment on behalf of itself
and the John Doe defendants. The district court dismissed the claims against the
John Doe defendants under Federal Rule of Civil Procedure 12(b)(1) for lack of
jurisdiction because Mr. Askew had not exhausted his administrative remedies
against them, dismissed the Eighth Amendment claim against the United States
and the FTCA sexual assault claim under Rule 12(b)(1) for lack of jurisdiction on
sovereign immunity grounds, and granted summary judgment on the FTCA
physical battery claim.2 As noted above, Mr. Askew appeals the judgment only as
2 Mr. Askew filed two post-judgment motions, one seeking transfer of the case to a different court, and another seeking to present newly discovered evidence and reconsideration of the order dismissing his claims. The district court denied both motions. Mr. Askew does not seek review of those rulings, so has waived any challenge he might have had. See Tran v. Trs. of State Colls. in Colo., 355 F.3d 3 Appellate Case: 23-3046 Document: 010110988380 Date Filed: 01/23/2024 Page: 4
to the United States.3
II. Standard of Review
We recognize that because Mr. Askew represents himself, he is entitled to
a liberal reading of his filings. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187
(10th Cir. 2003). We thus make some allowances for deficiencies, such as unfamiliarity
with pleading requirements, failure to cite appropriate legal authority, and confusion of
legal theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). But we “cannot take on the responsibility of serving as [his] attorney
in constructing arguments and searching the record.” Id.
We review de novo both the dismissal of a complaint on sovereign immunity
grounds and the grant of summary judgment, applying the same standards that
applied in district court. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013)
(sovereign immunity dismissal); Rocky Mountain Prestress, LLC v. Liberty Mut. Fire
Ins. Co., 960 F.3d 1255, 1259 (10th Cir. 2020) (summary judgment).
When, as here, a motion to dismiss based on sovereign immunity challenges
the sufficiency of the plaintiff’s allegations concerning subject matter jurisdiction,
1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or waived.”). 3 Because Mr. Askew does not appeal the judgment as to the individual defendants, we need not address his challenges to the district court’s dismissal of the claims against the John Doe defendants on exhaustion grounds, including his argument that exhaustion would have been futile. We note, however, that there is no futility exception to the exhaustion requirement. See Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). 4 Appellate Case: 23-3046 Document: 010110988380 Date Filed: 01/23/2024 Page: 5
we must accept the factual allegations in the complaint as true. Peterson, 707 F.3d
at 1205. “However, we are not bound to accept as true a legal conclusion couched as
a factual allegation.” Id. at 1206 (internal quotation marks omitted).
At the summary judgment stage, we “view facts in the light most favorable to
the non-moving party and draw all reasonable inferences in [their] favor.” Dewitt v.
Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017) (ellipsis and internal
quotation marks omitted). When summary judgment in an FTCA case depends on
the interpretation of state law, we review the district court’s interpretation and
determination of state law de novo. Aldrich Enter., Inc. v. United States, 938 F.2d
1134, 1138 & n.4 (10th Cir. 1991).
To survive summary judgment, Mr. Askew had to “present some evidence”
beyond the allegations in his complaint to support his allegations. Serna v. Colo.
Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (internal quotation marks
omitted). “Unsubstantiated allegations carry no probative weight in summary
judgment proceedings.” Id. (internal quotation marks omitted). A district court
must “grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
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III. Discussion
A. We decline to consider Mr. Askew’s unpreserved arguments.
Mr. Askew raises several issues on appeal that the district court did not
address in the dismissal order, including that (1) the United States tricked him into
dismissing the claims against the nurse; (2) the district court improperly “inserted” an
Eighth Amendment claim against the John Doe defendants, Aplt. Opening Br. at 9;
(3) the court misconstrued his version of the facts in the pretrial order; (4) the United
States did not represent his version of the facts in the pretrial order; (5) there was
a conflict of interest between the United States and the court; and (6) the court
failed to rule on a number of his filings. He has not provided record citations
demonstrating that he raised these issues in district court as required by our local
rule, see 10th Cir. R. 28.1(A) (“For each issue raised on appeal, the briefs must cite
the precise reference in the record where the issue was raised and ruled on.”). We
will not comb the record to determine whether he preserved these issues, see Garrett,
425 F.3d at 840, and presume that he did not, see United States v. Leffler, 942 F.3d
1192, 1196 (10th Cir. 2019) (recognizing that absent precise record citations to where
an issue was raised and ruled upon, an appellate court may assume an issue was not
preserved). And because Mr. Askew does not argue for plain error review of the
unpreserved issues, we decline to review them. See Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1130-31 (10th Cir. 2011).
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B. The district court properly dismissed the Eighth Amendment claim.
“The concept of sovereign immunity means that the United States cannot be
sued without its consent,” and courts do not have subject matter jurisdiction over a
claim against the United States unless sovereign immunity has been waived. Iowa
Tribe of Kan. & Neb. v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010) (internal
quotation marks omitted). A waiver “must be unequivocally expressed in statutory
text,” and “will be strictly construed, in terms of its scope, in favor of the sovereign.”
Id. at 1236 (internal quotation marks omitted). Thus, to survive dismissal of his
Eighth Amendment claim against the United States on sovereign immunity grounds,
Mr. Askew needed to establish that the United States has waived its sovereign
immunity with respect to that claim. See id. at 1232. It was impossible for him to do
so, because the law is clear that the United States has not waived immunity from suit
for constitutional claims for damages.
A plaintiff can bring a claim for money damages against individual federal
officers for an Eighth Amendment violation under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Carlson v. Green,
446 U.S. 14, 18-20 (1980). But a Bivens action “may not be brought directly against
the United States,” Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001), which is
immune from suit for constitutional claims for damages, see FDIC v. Meyer,
510 U.S. 471, 477-78 (1994). And Mr. Askew’s assertion of an FTCA claim does not
save his Eighth Amendment claim against the United States, because although the
FTCA allows some state tort claims to be asserted against the United States, it does
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not waive the United States’ sovereign immunity from suit for constitutional tort
claims. See id. Accordingly, the district court properly dismissed Mr. Askew’s
Eighth Amendment claim against the United States.
C. The district court properly dismissed the FTCA claims.
Mr. Askew asserted FTCA claims against the United States for sexual assault
based on the nurse having touched his genitals, and for battery based on the
correctional officers’ alleged attack on him. He sought relief for physical injuries
and mental and emotional trauma. The district court dismissed the sexual assault
claim and granted summary judgment on the battery claim, concluding that the
United States was immune from liability on both claims. The court also concluded
that Mr. Askew could not recover damages for mental and emotional trauma because
his physical injuries were de minimis and he was not the victim of a sexual act.
Mr. Askew takes issue with each of those rulings.
1. The district court correctly dismissed the sexual assault claim.
The FTCA waives sovereign immunity for some actions against the United
States stemming from injuries caused by the wrongful acts of its employees while
acting in the scope of their employment. See 28 U.S.C. § 1346(b)(1). This waiver
does not apply to claims for assault and battery unless the acts complained of were
committed by “investigative or law enforcement officers of the United States.”
28 U.S.C. § 2680(h). An investigative or law enforcement officer is “any officer of
the United States who is empowered by law to execute searches, to seize evidence, or
to make arrests for violations of Federal law.” Id. Section 2680(h) thus preserves the
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government’s sovereign immunity from liability for assault and battery claims arising
from the conduct of employees who do not fit this definition. See Millbrook v.
United States, 569 U.S. 50, 52-53 (2013).
In the pretrial order, the parties stipulated that, as a PHS officer, the nurse was
“not empowered by law to execute searches, to seize evidence, or to make arrest[s]
for violation of federal law,” and was “not a law enforcement officer.” R. at 224.
Based on that stipulation, the district court concluded that the nurse was not an
investigative or law enforcement officer under § 2680(h) and that the United States
was therefore immune from liability for the nurse’s alleged sexual assault on
Mr. Askew. The court thus dismissed the sexual assault claim for lack of
jurisdiction. See Dry v. United States, 235 F.3d 1249, 1257-58 (10th Cir. 2000).
On appeal, Mr. Askew provides a factual narrative regarding the alleged
sexual assault and the emotional and mental trauma it caused. But his brief does not
explain why the district court’s reason for dismissing the claim was wrong, and he
points to no evidence establishing that the nurse was acting as an investigative or law
enforcement officer. Mr. Askew’s factual narrative is not a “substitute for legal
argument,” and because he has failed to show any reversible error, we affirm the
district court’s dismissal of this claim. Nixon v. City & Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015) (affirming dismissal of claim where appellant’s brief
failed to challenge the basis for the district court’s ruling).
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2. The district court properly granted summary judgment on the battery claim.
Under the FTCA, Congress granted a “limited waiver of sovereign immunity”
by “making the Federal Government liable to the same extent as a private party for
certain torts of federal employees.” United States v. Orleans, 425 U.S. 807, 813
(1976). Liability may arise for physical injuries caused by the wrongful acts of
federal employees only “under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place where
the act . . . occurred.” 28 U.S.C. § 1346(b)(1). This requires application of “relevant
state law.” Stokes v. United States, 967 F.3d 1034, 1037-38 (10th Cir. 2020). Here,
the events occurred in Kansas and the parties agree that Kansas law governs
Mr. Askew’s claim.
Under Kansas law, civil battery is “the unprivileged touching or striking of one
person by another, done with the intent of bringing about either a contact or an
apprehension of contact that is harmful or offensive.” McElhaney v. Thomas,
405 P.3d 1214, 1219 (Kan. 2017) (brackets and internal quotation marks omitted);
see Kan. Stat. Ann. § 21-5413(a). By statute, law enforcement officers may use
reasonable force to make an arrest. Kan. Stat. Ann. § 21-5227(a). The statute
provides a defense to officers in a civil lawsuit. Dauffenbach v. City of Wichita,
8 Kan. App. 2d 303, 310 (Kan. Ct. App. 1983) (applying predecessor statute).
The statutory right to use reasonable force also applies to correctional officers in
“maintaining security, control, and discipline in a correctional institution.”
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Kan. Admin. Regs. § 44-5-106(a) (incorporating predecessor statute by reference).
Thus, a correctional officer “has discretion to determine the degree of force required
under the circumstances as they appear to the officer at the time,” and “[t]he degree
of force used may be reasonable even though it is more than is actually required,” as
long as the officer does not use “an unreasonable amount of force or wantonly or
maliciously injure” someone. Dauffenbach, 8 Kan. App. 2d at 308.
In support of its motion for summary judgment, the government submitted a
video of the incident and declarations from the nurse and each of the correctional
officers describing the incident. The video shows that Mr. Askew had barricaded
himself in his cell and refused the officers’ orders to submit to handcuffs for transfer.
After he tried to hit the officers through the cell bars, they sprayed gas into the cell
and used a ram to push him away from the door. When they entered, they restrained
him and led him out of the cell. After the nurse physically examined him, he was put
in a wheelchair and pushed to a different building, where the officers carried him to a
room and removed his clothes. The nurse removed the materials wrapped around
Mr. Askew’s genitals,4 and the officers dressed him in clean clothes. Throughout the
incident, the officers asked Mr. Askew to cooperate voluntarily before resorting to
any use of force. The video does not show any guards hitting Mr. Askew, either with
their fists or with any other objects.
4 In his deposition, Mr. Askew testified that he had wrapped the materials around his genitals sometime before the incident.
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In opposing summary judgment, Mr. Askew insisted that “ALL these
defendants lied” in their declarations, R. at 505, but he presented no factual or
evidentiary support for that contention. He did not dispute the accuracy of the video,
and he presented no evidence beyond the allegations in his complaint that the officers
used unreasonable force.
Mr. Askew had the burden of proving sovereign immunity has been waived,
see James v. United States, 970 F.2d 750, 753 (10th Cir. 1992), and, having reviewed
the video and other summary judgment evidence, we agree with the district court’s
conclusion that he failed to meet his burden. The video shows that the officers
used reasonable force to maintain order, as permitted under Kansas Administrative
Regulations § 44-5-106(a), so would not be liable for battery under Kansas law.
Accordingly, the United States could not be held liable for their actions under the
FTCA, and was entitled to summary judgment. See Ayala v. United States, 49 F.3d
607, 610 (10th Cir. 1995) (holding that “the government is not liable under the FTCA
unless state law recognizes a comparable liability for private persons”); see also Scott
v. Harris, 550 U.S. 372, 380 (2007) (holding that defendant in civil rights excessive
force case was entitled to summary judgment where the plaintiff’s version of events
was “blatantly contradicted” by a video of the incident).
Finally, having upheld the district court’s conclusion that the United States
was immune from liability on both of Mr. Askew’s tort claims, we need not address
its determination that he could not recover damages for mental and emotional trauma
he claims to have suffered as a result of the conduct giving rise to those claims
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because his physical injuries were de minimis and he was not the victim of a sexual
act. See 28 U.S.C. § 1346(b)(2) (“No person convicted of a felony who is
incarcerated . . . while serving a sentence may bring a civil action against the United
States or . . . any employee of the Government for mental or emotional injury
suffered while in custody without a prior showing of physical injury or the
commission of a sexual act (as defined in section 2246 of title 18”). We thus do not
consider Mr. Askew’s argument that his physical injuries were more than de minimis,
or the government’s argument about whether § 1346(b)(2)’s incorporation of the
definition of “sexual act” in § 2246, see 18 U.S.C. § 2246(2), also incorporates
§ 2246’s definition of “sexual contact,” see id. § 2246(3), for purposes of the
limitation on recovery for mental and emotional injuries.
D. The district court did not violate Mr. Askew’s right to due process.
In upholding the district court’s judgment, we reject Mr. Askew’s argument
that the court violated his right to due process by dismissing his claims “outside of
the scheduling order set forth in the pre-trial order” and “before and absent of
notifying [the] parties.” Aplt. Opening Br. at 6.
The pretrial order put Mr. Askew on notice that the United States “will file a
summary judgment motion,” and that the case could be decided on the dispositive
motions without a trial. R. at 235. Contemporaneously with the filing of its motion,
the government mailed a notice to Mr. Askew informing him the motion “asked the
Court to decide this case without a trial, based on written materials, including
affidavits, submitted in support of the motion.” R. at 497. The notice explained that
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Mr. Askew could “not oppose summary judgment simply by relying upon the
allegations in [his] complaint,” id., and that if he did not respond to the motion
“with affidavits and/or documents contradicting the material facts asserted by the
defendants, the court may accept defendants’ facts as true, in which event [the]
case may be dismissed and judgment entered in defendants’ favor without a trial,”
id. at 498. Mr. Askew filed a response in opposition to the motion, which the district
court considered in ruling on the motion. He thus had notice and adequate
opportunity to submit evidence in opposition to the government’s motion. The fact
that the district court set a trial date in the pretrial order does not mean it was
required to hold a trial—judicial efficiency is served when a district court schedules a
trial but also entertains dispositive motions that may obviate the need for trial. Nor
was the court required to hold an evidentiary hearing on the motion. See Geear v.
Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir. 1988). Instead, “the parties’ right
to be heard may be fulfilled by the court’s review of the briefs and supporting
affidavits and materials submitted to the court.” Id.
IV. Conclusion
We affirm the district court’s judgment. We grant Mr. Askew’s motion for
leave to proceed without prepayment of fees and costs. We deny his “Motion for
Leave to Proceed Outside Any Time Barred Limitations/Motion to Appoint Special
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Counsel” and his motions for court-appointed counsel and for leave to present newly
discovered evidence.
Entered for the Court
Jerome A. Holmes Chief Judge