Carter v. Wyoming Department of Corrections

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 13, 2022
• Docket: 22-8044
• Status: Unpublished

Opinion

Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 13, 2022 _________________________________ Christopher M. Wolpert Clerk of Court CHARLES KENZELL CARTER,

Plaintiff - Appellant,

v. No. 22-8044 (D.C. No. 2:22-CV-00145-NDF) WYOMING DEPARTMENT OF (D. Wyo.) CORRECTIONS CLASSIFICATION AND HOUSING MANAGER, in his official capacity also known as Carl Voightsberger; CARL VOIGHTSBERGER, individually; WYOMING DEPARTMENT OF CORRECTIONS DIRECTOR, in his official capacity also known as Daniel Shannon; DANIEL SHANNON, individually; WYOMING DEPARTMENT OF CORRECTIONS,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges. _________________________________

* After examining the brief 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 2

Charles Carter, a state prisoner proceeding pro se, 1 appeals the district court’s

order dismissing his 42 U.S.C. § 1983 complaint. For the reasons explained below,

we affirm.

Background

Carter’s complaint asserts claims against the Wyoming Department of

Corrections (WDOC) and two WDOC employees, Classification and Housing

Manager Carl Voightsberger and Director of the WDOC Daniel Shannon, in their

official and individual capacities. His claims stem in part from his 2019 transfer from

a Wyoming prison to Wallens Ridge State Prison in Virginia and a later June 2020

transfer to a different Virginia facility, Red Onion State Prison. Carter asserts that

although defendants contend the 2019 transfer was for compassionate reasons (so

Carter could be closer to his home in North Carolina), their true motive for

transferring him was to retaliate against him for filing grievances and threatening to

sue. Carter also alleges various forms of mistreatment at Red Onion State Prison in

2021 and 2022. He asserts claims under the First, Eighth, and Fourteenth

Amendments, as well as claims alleging supervisory liability and negligence. He

seeks an injunction requiring (among other things) a transfer back to Wyoming, a

declaratory judgment, and compensatory damages.

Carter sought to proceed in forma pauperis (IFP) at the district court and thus

avoid “prepayment of fees.” 28 U.S.C. § 1915(a)(1); see also § 1915(b) (explaining

1 We liberally construe Carter’s pro se filings, but we will not act as his advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 2 Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 3

that litigant proceeding IFP must eventually pay full filing fee). Accordingly, the

district court screened Carter’s complaint for frivolousness, failure to state a claim,

and immune defendants. See § 1915(e)(2) (noting that “court shall dismiss the case at

any time if” any of these three conditions is met).

The district court began with Carter’s claims for damages against WDOC and

Voightsberger and Shannon in their official capacities. It noted that absent abrogation

by Congress or waiver by a state, the Eleventh Amendment generally makes both

states and state officials acting in their official capacities immune from suit in federal

court. See Collins v. Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019). And the district

court found no abrogation or waiver in this case. The district court further rejected

Carter’s attempt to invoke the exception to Eleventh Amendment immunity under Ex

Parte Young, 209 U.S. 123 (1908), for his claims seeking prospective injunctive

relief.

The district court next turned to Carter’s individual-capacity claims against

Voightsberger and Shannon. As for the Eighth and Fourteenth Amendment claims

arising from the conditions at Red Onion State Prison, the district court noted the

personal-involvement requirement for § 1983 liability and determined that “[n]othing

in [Carter’s] complaint indicates any personal participation by [Voightsberger or

Shannon] in [Carter’s] treatment or conditions of confinement at [Red Onion State

Prison].” R. 116; see also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)

(“Individual liability under § 1983 must be based on personal involvement in the

alleged constitutional violation.” (quoting Foote v. Spiegel, 118 F.3d 1416, 1423

3 Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 4

(10th Cir. 1997))). The district court also rejected the claims arising from Carter’s

transfer, noting that there is no constitutional “right to incarceration in a particular

institution.’” R. 114 (quoting Al-Turki v. Tomsic, 926 F.3d 610, 615 (10th Cir.

2019)). And it further found Carter’s other transfer-related individual-capacity claims

against Voightsberger and Shannon—a First Amendment retaliation claim, Eighth

Amendment claims, and Fourteenth Amendment claims—insufficiently pleaded

under Federal Rule of Civil Procedure 8(a).

Last, the district court rejected Carter’s supervisory-liability claim because

Carter “fail[ed] to plead any policy created, promulgated, or implemented by

[Voightsberger or Shannon]” that could establish supervisory liability under § 1983.

Id. at 117; see also Dodds v. Richardson, 614 F.3d 1185, 1194–95 (10th Cir. 2010)

(explaining that supervisory liability under § 1983 requires showing affirmative link

between supervisor and constitutional violation). And it found Carter’s negligence

claim inadequately pleaded under Rule 8. Thus, because all Carter’s claims either

failed to state a claim or sought relief from immune defendants, the district court

dismissed the official-capacity compensatory claims with prejudice, the official-

capacity injunction claims without prejudice, and the individual-capacity claims

without prejudice. See § 1915(e)(2)(B). It also concluded that leave to amend would

be futile.

Carter appeals.

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Analysis

Our review is de novo. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)

(reviewing § 1915(e)(2)(B)(ii) dismissal de novo); Guiden v. Morrow, 92 F. App’x

663, 665 (10th Cir. 2004) (reviewing § 1915(e)(2)(B)(iii) dismissal de novo); see

also Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174, 1181 (10th Cir. 2015) (noting

de novo review of Eleventh Amendment immunity). “In determining whether a

dismissal is proper, we must accept the allegations of the complaint as true and

construe those allegations, and any reasonable inferences that might be drawn from

them, in the light most favorable to the plaintiff.” Kay, 500 F.3d at 1217 (quoting

Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002)).

Carter first argues that the district court erred in concluding that WDOC and

Voightsberger and Shannon in their official capacities were immune from suit under

the Eleventh Amendment. In particular, he contends that the district court overlooked

exhibits to his complaint that he says show waiver of immunity. The exhibits he

references appear to be a 1990 contract between Wyoming and Virginia providing for

transfer of prisoners between those two states and WDOC’s Policy and Procedure

#4.000, which provides guidelines for “transfer of inmates pursuant to an interstate

compact or out-of-state contract housing.” R. 95. Carter contends that these

documents show that Wyoming “[a]ccepted [r]esponsibility of any wrong[d]oings

concerning inmates under [c]ontract and interstate[-]compact housing.” Aplt. Br. 4.

But even assuming that is true, it does not waive Eleventh Amendment immunity.

“States can voluntarily waive their immunity by choosing to invoke federal

5 Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 6

jurisdiction.” Arbogast, 789 F.3d at 1182. A state can also waive immunity by

unequivocally expressing an intent to submit to federal jurisdiction “by statute,

constitutional provision, or through its ‘actions, specifically, its participation in a

particular federal program.’” Id. (quoting Robinson v. Kansas, 295 F.3d 1183, 1189

(10th Cir. 2002)). And simply put, we see nothing in the contract or the WDOC

policy document that expresses Wyoming’s intent to submit to federal jurisdiction.

We therefore reject Carter’s argument that the district court erred in finding that

Eleventh Amendment immunity barred some of his claims.

Next, Carter attempts to challenge the district court’s assessment of his Eighth

Amendment deliberate-indifference claims, asserting without elaboration that the

district court “provided for my [d]eliberate[-]indifference claims an err[or] of law.”

Aplt. Br. 4. But on the next page, he accuses the district court of “never address[ing]”

such claims. Id. at 5. Aside from the fact that these two arguments are inconsistent,

the latter is incorrect; although the district court did not separately address the

deliberate-indifference claim, it collectively considered and rejected all of Carter’s

Eighth Amendment claims. And the former statement—Carter’s unadorned position

that the district court legally erred—is not an adequately presented appellate

argument. Although we construe pro se briefs liberally, we cannot create arguments

out of thin air. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005) (explaining that we “cannot take on the responsibility of serving as

the [pro se] litigant’s attorney in constructing arguments”); Perry v. Woodward, 199

F.3d 1126, 1141 n.13 (10th Cir. 1999) (explaining that we “will not craft a party’s

6 Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 7

arguments for [them]”). Thus, because Carter fails to explain how or why the district

court’s analysis is incorrect, we decline to consider Carter’s deliberate-indifference

challenge. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e

routinely have declined to consider arguments that are not raised, or are inadequately

presented, in an appellant’s opening brief.”); Nixon v. City & Cnty. of Denver, 784

F.3d 1364, 1366 (10th Cir. 2015) (noting that “first task of an appellant is to explain

to us why the district court’s decision was wrong”).

Carter also argues that the district court abused its discretion in dismissing his

complaint without allowing him an opportunity to amend his complaint. In support,

he cites Bazrowx v. Scott, 136 F.3d 1053 (5th Cir. 1998). There, the Fifth Circuit

noted that generally, “a district court errs in dismissing a pro se complaint for failure

to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to

amend.” Id. at 1054 (italics omitted). But importantly, the court in Bazrowx

ultimately found no reversible error because although the district court dismissed

without leave to amend, it also did so without prejudice, effectively allowing the

plaintiff to refile if so desired. See id. at 1054–55; cf. Denton v. Hernandez, 504 U.S.

25, 34 (1992) (holding that under a prior version of § 1915, if complaint “could be

remedied through more specific pleading, a court of appeals . . . should consider

whether the district court abused its discretion by dismissing the complaint with

prejudice or without leave to amend” (emphasis added)).

Similarly, the district court here dismissed most of Carter’s claims—the claims

for injunctive relief and the claims against Voightsberger and Shannon in their

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individual capacities—without prejudice. The only claims dismissed with prejudice

were those seeking monetary relief from WDOC and Voightsberger and Shannon in

their official capacities, and we agree with the district court that amendment would

be futile for such claims because of Eleventh Amendment immunity. See Collins, 916

F.3d at 1315 (explaining that states and state officials in their official capacity may

not be sued in federal court absent consent, abrogation, or application of the Ex Parte

Young exception to state sovereign immunity); Curley v. Perry, 246 F.3d 1278,

1281–82 (10th Cir. 2001) (affirming dismissal of pro se complaint for failure to state

a claim under § 1915(e)(2)(B)(ii) with prejudice and without leave to amend because

no amendment could cure defect in complaint). We thus find no reversible error on

the district court’s decision not to provide Carter with an opportunity to amend.

Carter relatedly argues that the district court denied him access to the courts by

dismissing his complaint without requiring defendants to file an answer and without

“even say[ing] if this was a screening process.” Aplt. Br. 3. Yet on the contrary, the

district court expressly stated that it was “undertak[ing] an initial review under . . .

§ 1915.” R. 111. And doing so was entirely proper, given § 1915(e)(2)’s mandate that

“the court shall dismiss the case at any time” if the complaint fails to state a claim or

seeks monetary relief from an immune defendant. 2

2 We have also held “that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.” Curley, 246 F.3d at 1284. 8 Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 9

Finally, Carter asserts that the district court erred by failing “to address any

and all other claims [he d]id not articulate in the complaint.” Aplt. Br. 5. But a

district court is not obligated to advocate for a pro se litigant by creating and ruling

on claims not asserted in the complaint. See Garrett, 425 F.3d at 840. We thus find

no error on this basis. And for the same reason, we reject Carter’s request that we

consider “[a]ny and [a]ll other causes, claims, a[nd] arguments [n]ot articulated in the

appeal.” Aplt. Br. 4.

Conclusion

Because Carter’s arguments on appeal either fail on their merits or are

inadequately briefed, we affirm the district court’s order. 3 As a final matter, we grant

Carter’s motion to proceed IFP on appeal.

Entered for the Court

Nancy L. Moritz Circuit Judge

3 Carter asks that we “provide court[-]appointed counsel.” Aplt. Br. 5. But civil litigants do not have a right to court-appointed counsel, and given our disposition of this appeal, we decline to appoint counsel here. See Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). 9