Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JAMES RICKY EZELL, III,
Plaintiff - Appellant,
v. No. 23-7007 (D.C. No. 6:19-CV-00302-JFH-JAR) DAMON HININGER, CEO of Core Civic; (E.D. Okla.) JAMES YATES, Warden, Davis Correctional Facility; DEPUTY WARDEN GENTRY; (FNU) PEREZ, Deputy Warden, Davis Correctional Facility; TERRY UNDERWOOD, Grievance Coordinator, Davis Correctional Facility; JESSICA PATTERSON, Law Library Supervisor, Davis Correctional Facility; TIFFANY ADE, Echo Maximum Unit Manager, Davis Correctional Facility; S. PFAFF; CARLA HOOVER, a/k/a Carl Hoover; SCOTT CROW, Interim Director, Oklahoma Department of Corrections; MARK KNUTSON, Designee, Oklahoma Department of Corrections; DAVID A. CINCOTTA, General Counsel, Oklahoma Department of Corrections; JASON BRYANT, Warden, Joseph Harp Correctional Center; R. HODGSON, Captain, James Crabtree Correctional Center; LT. AUSTIN PARKS, Lt., James Crabtree Correctional Center; SERGEANT WALKER, Correctional Officer, James Crabtree Correctional Center; JAMES NALL, Captain, James Crabtree Correctional Center; MS. PIRECE, Correctional Officer; MR. VANCE; MR. BULLOCK, Correctional Officer; MR. KEYS; MR. ADKINS, Correctional Officer; ANDREW SMITH, Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 2
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, EID, and CARSON, Circuit Judges. _________________________________
James Ricky Ezell III is confined in the Oklahoma Department of Corrections
(ODOC). He filed this 42 U.S.C. § 1983 lawsuit against ODOC officials (the ODOC
defendants) and employees of a privately owned facility that houses ODOC inmates
(the Core Civic defendants). The district court dismissed some claims and granted
summary judgment to the defendants on the remaining claims. We affirm.
I.
Mr. Ezell’s filings are difficult to follow, and our first task is to identify the
issues properly before us. Because Mr. Ezell represents himself, we construe his
filings liberally. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). But we can go only so far. We may not take on an advocate’s role
by searching the record and crafting arguments. See id. Even pro se litigants must
give us more than generalized assertions of error. See id. at 840–41. Like all
* 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. 2 Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 3
litigants, they must provide their contentions and the reasons for them, with citations
to the legal authority and the parts of the record supporting the contentions. See id.
Falling short of this standard will waive an issue. See id. at 841.
Mr. Ezell has waived any challenge to the district court’s decision to dismiss
several claims against the ODOC defendants for failure to state a claim. See
Fed. R. Civ. P. 12(b)(6). The district court dismissed claims against ODOC
defendants alleging violations of the First Amendment (access to courts), the Sixth
Amendment, and the Fourteenth Amendment. Mr. Ezell’s briefs present no coherent
challenge to the dismissal of these claims.
Mr. Ezell has also waived any challenge against summary judgment for the
Core Civic defendants. He never responded to their motion for summary judgment in
district court. And so we would review any challenge to the district court’s granting
the motion only for plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,
1130 (10th Cir. 2011). Because Mr. Ezell does not argue for plain-error review, he
has waived any argument against summary judgment for the Core Civic defendants.
See id. at 1130–31.
Mr. Ezell makes various allegations of error that are too perfunctory to warrant
review. In single-sentence assertions without any citations, for example, he suggests
the district court erred when it denied his motions to appoint counsel and his request
for a preliminary injunction. See Opening Br. at 11. This insufficient briefing
amounts to waiver. See Garrett, 425 F.3d at 841.
3 Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 4
Mr. Ezell has waived one final argument. He argues that the district court
should not have granted summary judgment without allowing him to obtain
additional evidence through discovery. But if he needed more discovery to respond
to a motion for summary judgment, then he should have filed an affidavit saying so.
See Fed. R. Civ. P. 56(d). By failing to file an affidavit under Rule 56(d), he waived
any argument that we should set aside summary judgment for insufficient discovery.
See Campfield v. State Farm Mut. Auto. Ins., 532 F.3d 1111, 1124 (10th Cir. 2008).
II.
We now turn to the two issues Mr. Ezell has properly presented: Did the
district court err when it granted summary judgment to ODOC defendants on
Mr. Ezell’s claims that they violated his rights under the Eighth Amendment
(excessive force) and the First Amendment (retaliation)?
We review the summary judgment rulings de novo, viewing the evidence in
the light most favorable to Mr. Ezell and drawing any reasonable inferences in his
favor. See Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020). Courts
will grant summary judgment if there is no genuine dispute over any material fact
and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
If no reasonable juror could return a verdict for the nonmovant, then there is no need
for a trial, and summary judgment is proper. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255–56 (1986).
The material facts (described favorably to Mr. Ezell) are straightforward. One
day Mr. Ezell stuck his arm through the food slot in his cell door. He refused orders
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Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court JAMES RICKY EZELL, III,
Plaintiff - Appellant,
v. No. 23-7007 (D.C. No. 6:19-CV-00302-JFH-JAR) DAMON HININGER, CEO of Core Civic; (E.D. Okla.) JAMES YATES, Warden, Davis Correctional Facility; DEPUTY WARDEN GENTRY; (FNU) PEREZ, Deputy Warden, Davis Correctional Facility; TERRY UNDERWOOD, Grievance Coordinator, Davis Correctional Facility; JESSICA PATTERSON, Law Library Supervisor, Davis Correctional Facility; TIFFANY ADE, Echo Maximum Unit Manager, Davis Correctional Facility; S. PFAFF; CARLA HOOVER, a/k/a Carl Hoover; SCOTT CROW, Interim Director, Oklahoma Department of Corrections; MARK KNUTSON, Designee, Oklahoma Department of Corrections; DAVID A. CINCOTTA, General Counsel, Oklahoma Department of Corrections; JASON BRYANT, Warden, Joseph Harp Correctional Center; R. HODGSON, Captain, James Crabtree Correctional Center; LT. AUSTIN PARKS, Lt., James Crabtree Correctional Center; SERGEANT WALKER, Correctional Officer, James Crabtree Correctional Center; JAMES NALL, Captain, James Crabtree Correctional Center; MS. PIRECE, Correctional Officer; MR. VANCE; MR. BULLOCK, Correctional Officer; MR. KEYS; MR. ADKINS, Correctional Officer; ANDREW SMITH, Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 2
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, EID, and CARSON, Circuit Judges. _________________________________
James Ricky Ezell III is confined in the Oklahoma Department of Corrections
(ODOC). He filed this 42 U.S.C. § 1983 lawsuit against ODOC officials (the ODOC
defendants) and employees of a privately owned facility that houses ODOC inmates
(the Core Civic defendants). The district court dismissed some claims and granted
summary judgment to the defendants on the remaining claims. We affirm.
I.
Mr. Ezell’s filings are difficult to follow, and our first task is to identify the
issues properly before us. Because Mr. Ezell represents himself, we construe his
filings liberally. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). But we can go only so far. We may not take on an advocate’s role
by searching the record and crafting arguments. See id. Even pro se litigants must
give us more than generalized assertions of error. See id. at 840–41. Like all
* 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. 2 Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 3
litigants, they must provide their contentions and the reasons for them, with citations
to the legal authority and the parts of the record supporting the contentions. See id.
Falling short of this standard will waive an issue. See id. at 841.
Mr. Ezell has waived any challenge to the district court’s decision to dismiss
several claims against the ODOC defendants for failure to state a claim. See
Fed. R. Civ. P. 12(b)(6). The district court dismissed claims against ODOC
defendants alleging violations of the First Amendment (access to courts), the Sixth
Amendment, and the Fourteenth Amendment. Mr. Ezell’s briefs present no coherent
challenge to the dismissal of these claims.
Mr. Ezell has also waived any challenge against summary judgment for the
Core Civic defendants. He never responded to their motion for summary judgment in
district court. And so we would review any challenge to the district court’s granting
the motion only for plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,
1130 (10th Cir. 2011). Because Mr. Ezell does not argue for plain-error review, he
has waived any argument against summary judgment for the Core Civic defendants.
See id. at 1130–31.
Mr. Ezell makes various allegations of error that are too perfunctory to warrant
review. In single-sentence assertions without any citations, for example, he suggests
the district court erred when it denied his motions to appoint counsel and his request
for a preliminary injunction. See Opening Br. at 11. This insufficient briefing
amounts to waiver. See Garrett, 425 F.3d at 841.
3 Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 4
Mr. Ezell has waived one final argument. He argues that the district court
should not have granted summary judgment without allowing him to obtain
additional evidence through discovery. But if he needed more discovery to respond
to a motion for summary judgment, then he should have filed an affidavit saying so.
See Fed. R. Civ. P. 56(d). By failing to file an affidavit under Rule 56(d), he waived
any argument that we should set aside summary judgment for insufficient discovery.
See Campfield v. State Farm Mut. Auto. Ins., 532 F.3d 1111, 1124 (10th Cir. 2008).
II.
We now turn to the two issues Mr. Ezell has properly presented: Did the
district court err when it granted summary judgment to ODOC defendants on
Mr. Ezell’s claims that they violated his rights under the Eighth Amendment
(excessive force) and the First Amendment (retaliation)?
We review the summary judgment rulings de novo, viewing the evidence in
the light most favorable to Mr. Ezell and drawing any reasonable inferences in his
favor. See Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020). Courts
will grant summary judgment if there is no genuine dispute over any material fact
and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
If no reasonable juror could return a verdict for the nonmovant, then there is no need
for a trial, and summary judgment is proper. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255–56 (1986).
The material facts (described favorably to Mr. Ezell) are straightforward. One
day Mr. Ezell stuck his arm through the food slot in his cell door. He refused orders
4 Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 5
to remove it, and then refused orders to stick his other arm through the slot so that
prison officials could handcuff him. He demanded that the officials obtain a video
camera, presumably to record their interaction with him. The officials decided to
handcuff the arm Mr. Ezell had put through the food slot to the handle on the outside
of the cell door. As they tried to secure his arm, they twisted and bent it. At some
point, Mr. Ezell used a cup to throw urine and feces on the officials. The officials
sprayed him with pepper spray.
Before this conflict, officials at Mr. Ezell’s facility had recommended that he
be transferred to a medium-security facility. After the conflict, however, officials
recommended he be transferred to maximum-security housing, citing his failure to
comply with security directives and his violent history.
Mr. Ezell argues that prison officials violated his Eighth Amendment rights by
using excessive force during the conflict near his cell door. And he argues that his
transfer to maximum-security housing amounted to retaliation for his threatening to
file grievances and a lawsuit over the officials’ conduct during the conflict.
A.
An excessive-force claim has two elements: (1) an objective element requiring
that the alleged wrongdoing be harmful enough to establish a constitutional violation;
and (2) a subjective element requiring the plaintiff to show that the officials acted
with a sufficiently culpable state of mind. Redmond v. Crowther, 882 F.3d 927, 936
(10th Cir. 2018). An official’s state of mind is sufficiently culpable “if he uses force
maliciously and sadistically for the very purpose of causing harm, rather than in a
5 Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 6
good faith effort to maintain or restore discipline.” Id. (internal quotation marks
omitted).
The district court correctly granted summary judgment to the ODOC
defendants on the excessive-force claim. No reasonable juror could conclude that
prison officials acted with a sufficiently culpable state of mind during their conflict
with Mr. Ezell. They acted with a legitimate purpose—getting Mr. Ezell under
control after he refused to comply with orders and threw human waste on them. And
they used a level of force proportionate to their legitimate purpose.
B.
A First Amendment retaliation claim has three elements: (1) the plaintiff
engaged in constitutionally protected activity; (2) the defendant caused an injury to
the plaintiff that would chill a person of ordinary firmness from continuing to engage
in that activity; and (3) responding to the plaintiff’s protected activity was a
substantial motive for the defendant’s action. Shero v. City of Grove, 510 F.3d 1196,
1203 (10th Cir. 2007).
The district court correctly granted summary judgment on the retaliation claim
too. No reasonable juror could find that Mr. Ezell’s threats to file grievances and a
lawsuit substantially motivated the recommendation that he be placed in
maximum-security housing.1 After all, Mr. Ezell cites no evidence showing that the
1 In addition to pursuing his claim that officials retaliated against him in changing their housing recommendation, Mr. Ezell suggests that an ODOC official named Jesse Barker retaliated against him by giving an affidavit to the local district attorney (leading to a criminal charge for throwing human waste on an ODOC 6 Appellate Case: 23-7007 Document: 010111015790 Date Filed: 03/14/2024 Page: 7
officials who made the housing recommendation even knew about his threats to file
grievances and a lawsuit. At bottom, Mr. Ezell relies on the temporal proximity
between his threats and the change to his housing recommendation (these events
occurred on the same day). But temporal proximity alone cannot prove a retaliatory
motive. See VDARE Found. v. City of Colo. Springs, 11 F.4th 1151, 1174 (10th Cir.
2021). That is especially true here because Mr. Ezell’s behavior gave officials a
legitimate reason to reconsider the appropriate level of security for him.
III.
The district court’s judgment is affirmed.
Entered for the Court
Joel M. Carson III Circuit Judge
official). See Opening Br. at 3. But although Mr. Ezell mentioned Mr. Barker in his complaint, he did not name him as a defendant, we see no indication that Mr. Barker was served, and he is not a party to this appeal. And so we do not consider the argument about his conduct.