Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 27, 2024 _________________________________ Christopher M. Wolpert Clerk of Court IRINEO GARCIA,
Plaintiff - Appellant,
v. No. 23-3053 (D.C. No. 5:19-CV-03108-DDC) DAN SCHNURR; MISTI (D. Kan.) KROEKER; GERALD SHERIDAN; CHRIS SCHNEIDER; MICHAEL LAMB; DAVID GORGES; JEFFREY PETTIJOHN; NATASHA HAYS; APRIL RICHARDS; ANGELA WEST; MACY ROOT; JOE JACKSON; DEB LUNDRY; TIM MEAD; CORIZON; DOUGLAS W. BURRIS,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH and KELLY, Circuit Judges, and LUCERO, Senior Circuit Judge. _________________________________
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 2
Mr. Irineo Garcia is an inmate who was previously housed at the
Hutchinson Correctional Facility. Mr. Garcia had the bottom part of his
right leg amputated, so showering could be dangerous. Given the dangers,
Mr. Garcia asked officials at Hutchinson to provide safety accommodations
in the showers. Dissatisfied with what they provided, Mr. Garcia sued,
invoking 42 U.S.C. § 1983 and the Americans with Disabilities Act to
claim that Hutchinson officials had acted with deliberate indifference and
had failed to provide adequate accommodations.
The district court dismissed all of the claims. Mr. Garcia appeals,
and we affirm because he has not provided a viable reason to question the
district court’s rulings.
Denial of motion to appoint counsel
In his opening brief, Mr. Garcia contends that the district court
should have appointed counsel because “ADA law is complicated.”
Appellant’s Opening Br. at 4 ¶ 7.
In district court, Mr. Garcia moved for appointment of counsel based
on the complexity of the legal issues, limited access to the law library
during his time in segregation, and limited knowledge of the law. The
district court denied the motion, reasoning that Mr. Garcia had been able to
present his claims “cogently and intelligently.” R. vol. 1, at 199.
In reviewing this ruling, we apply the abuse-of-discretion standard.
Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012). To determine whether
2 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 3
the court abused its discretion, we consider the limitations on what the
court could do. The court couldn’t require an attorney to take the case; the
court could only ask an attorney to represent Mr. Garcia. Rachel v. Troutt,
820 F.3d 390, 396–97 (10th Cir. 2016). Courts may be reluctant to ask too
often because so many indigent parties seek help in getting legal
representation “and only a small number of attorneys are available to
accept these requests.” Id. at 397. In determining whether Mr. Garcia’s
claims merited a request among this limited pool of attorneys, the court
needed to consider not only the complexity of the issues but also
Mr. Garcia’s ability to present the claims. Id.
In gauging the complexity of the issues and Mr. Garcia’s ability to
present the claims, the district court acted within its discretion. On appeal,
Mr. Garcia says that an attorney could help him put the case in “legal
terms the Court can understand.” Appellant’s Opening Br. at 4 ¶ 8. But the
district court didn’t express confusion about Mr. Garcia’s allegations. He
filed a meticulous, 22-page complaint identifying his claims, his factual
allegations, and his demands.
He says that “ADA law is complicated.” Appellant’s Opening Br. at 4
¶ 7. But the ADA claims survived initial screening, with the district court
concluding that Mr. Garcia had stated a plausible claim under the ADA. So
when the district court ruled on the motion to appoint counsel, Mr. Garcia
3 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 4
had already done everything required of him. The court thus had little
reason to seek representation for Mr. Garcia.
The district court denied the motion without prejudice to a future
motion. So Mr. Garcia could seek counsel again if circumstances were to
change. We thus conclude that the district court didn’t abuse its discretion
in denying Mr. Garcia’s motion for appointment of counsel.
Dismissal of claims
Nor did the court err in dismissing the claims.
1. Mr. Garcia didn’t show that the court had erred by dismissing his claim involving a denial of equal protection.
In the complaint, Mr. Garcia claimed a denial of equal protection.
The district court dismissed this claim for failure to exhaust available
administrative remedies.
Mr. Garcia waited until his reply brief to address the dismissal of his
equal protection claim. The reply brief was too late because Mr. Garcia had
needed to present his appellate argument in his opening brief. Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000).
But even in the reply brief, Mr. Garcia doesn’t address the district
court’s reasoning. Mr. Garcia instead insists that he presented his claim
within the applicable period of limitations. But the district court didn’t
dismiss the claim based on the limitations period; the dismissal instead
rested on a failure to exhaust available administrative remedies. Mr.
4 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 5
Garcia’s failure to address the court’s rationale prevents us from disturbing
this ruling. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366
(10th Cir. 2015) (stating that an appellant must “explain what was wrong
with the reasoning that the district court relied on in reaching its
decision”). 1
2. The district court didn’t err in dismissing the claim of cruel and unusual punishment.
Because Mr. Garcia was an amputee, prison authorities provided him
with a bench so that he could sit while showering. But Mr. Garcia believed
that the bench was unsafe and would create cruel and unusual punishment.
The district court dismissed this claim, concluding that the alleged safety
risk hadn’t amounted to cruel and unusual punishment.
Mr. Garcia appeals this ruling, but argues only that prison authorities
had other facilities that could have eliminated the risk of injury. This
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Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 27, 2024 _________________________________ Christopher M. Wolpert Clerk of Court IRINEO GARCIA,
Plaintiff - Appellant,
v. No. 23-3053 (D.C. No. 5:19-CV-03108-DDC) DAN SCHNURR; MISTI (D. Kan.) KROEKER; GERALD SHERIDAN; CHRIS SCHNEIDER; MICHAEL LAMB; DAVID GORGES; JEFFREY PETTIJOHN; NATASHA HAYS; APRIL RICHARDS; ANGELA WEST; MACY ROOT; JOE JACKSON; DEB LUNDRY; TIM MEAD; CORIZON; DOUGLAS W. BURRIS,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH and KELLY, Circuit Judges, and LUCERO, Senior Circuit Judge. _________________________________
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 2
Mr. Irineo Garcia is an inmate who was previously housed at the
Hutchinson Correctional Facility. Mr. Garcia had the bottom part of his
right leg amputated, so showering could be dangerous. Given the dangers,
Mr. Garcia asked officials at Hutchinson to provide safety accommodations
in the showers. Dissatisfied with what they provided, Mr. Garcia sued,
invoking 42 U.S.C. § 1983 and the Americans with Disabilities Act to
claim that Hutchinson officials had acted with deliberate indifference and
had failed to provide adequate accommodations.
The district court dismissed all of the claims. Mr. Garcia appeals,
and we affirm because he has not provided a viable reason to question the
district court’s rulings.
Denial of motion to appoint counsel
In his opening brief, Mr. Garcia contends that the district court
should have appointed counsel because “ADA law is complicated.”
Appellant’s Opening Br. at 4 ¶ 7.
In district court, Mr. Garcia moved for appointment of counsel based
on the complexity of the legal issues, limited access to the law library
during his time in segregation, and limited knowledge of the law. The
district court denied the motion, reasoning that Mr. Garcia had been able to
present his claims “cogently and intelligently.” R. vol. 1, at 199.
In reviewing this ruling, we apply the abuse-of-discretion standard.
Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012). To determine whether
2 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 3
the court abused its discretion, we consider the limitations on what the
court could do. The court couldn’t require an attorney to take the case; the
court could only ask an attorney to represent Mr. Garcia. Rachel v. Troutt,
820 F.3d 390, 396–97 (10th Cir. 2016). Courts may be reluctant to ask too
often because so many indigent parties seek help in getting legal
representation “and only a small number of attorneys are available to
accept these requests.” Id. at 397. In determining whether Mr. Garcia’s
claims merited a request among this limited pool of attorneys, the court
needed to consider not only the complexity of the issues but also
Mr. Garcia’s ability to present the claims. Id.
In gauging the complexity of the issues and Mr. Garcia’s ability to
present the claims, the district court acted within its discretion. On appeal,
Mr. Garcia says that an attorney could help him put the case in “legal
terms the Court can understand.” Appellant’s Opening Br. at 4 ¶ 8. But the
district court didn’t express confusion about Mr. Garcia’s allegations. He
filed a meticulous, 22-page complaint identifying his claims, his factual
allegations, and his demands.
He says that “ADA law is complicated.” Appellant’s Opening Br. at 4
¶ 7. But the ADA claims survived initial screening, with the district court
concluding that Mr. Garcia had stated a plausible claim under the ADA. So
when the district court ruled on the motion to appoint counsel, Mr. Garcia
3 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 4
had already done everything required of him. The court thus had little
reason to seek representation for Mr. Garcia.
The district court denied the motion without prejudice to a future
motion. So Mr. Garcia could seek counsel again if circumstances were to
change. We thus conclude that the district court didn’t abuse its discretion
in denying Mr. Garcia’s motion for appointment of counsel.
Dismissal of claims
Nor did the court err in dismissing the claims.
1. Mr. Garcia didn’t show that the court had erred by dismissing his claim involving a denial of equal protection.
In the complaint, Mr. Garcia claimed a denial of equal protection.
The district court dismissed this claim for failure to exhaust available
administrative remedies.
Mr. Garcia waited until his reply brief to address the dismissal of his
equal protection claim. The reply brief was too late because Mr. Garcia had
needed to present his appellate argument in his opening brief. Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000).
But even in the reply brief, Mr. Garcia doesn’t address the district
court’s reasoning. Mr. Garcia instead insists that he presented his claim
within the applicable period of limitations. But the district court didn’t
dismiss the claim based on the limitations period; the dismissal instead
rested on a failure to exhaust available administrative remedies. Mr.
4 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 5
Garcia’s failure to address the court’s rationale prevents us from disturbing
this ruling. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1366
(10th Cir. 2015) (stating that an appellant must “explain what was wrong
with the reasoning that the district court relied on in reaching its
decision”). 1
2. The district court didn’t err in dismissing the claim of cruel and unusual punishment.
Because Mr. Garcia was an amputee, prison authorities provided him
with a bench so that he could sit while showering. But Mr. Garcia believed
that the bench was unsafe and would create cruel and unusual punishment.
The district court dismissed this claim, concluding that the alleged safety
risk hadn’t amounted to cruel and unusual punishment.
Mr. Garcia appeals this ruling, but argues only that prison authorities
had other facilities that could have eliminated the risk of injury. This
argument doesn’t address the district court’s reason for dismissing the
claim. See Reynolds v. Powell, 370 F.3d 1028, 1031–32 (10th Cir. 2004)
(concluding that prison authorities were entitled to summary judgment
because a slippery shower floor didn’t violate the Eighth Amendment by
1 Mr. Carter’s pro se status doesn’t relieve him of the obligation to identify an error in the district court’s reasoning. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]his court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” (internal quotation marks omitted)). 5 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 6
creating a risk that a prisoner would fall). We thus lack any basis for
disturbing this ruling. See p. 4, above.
3. Mr. Garcia hasn’t preserved a claim involving substantive due process.
Mr. Garcia claims that the safety risk not only constituted cruel and
unusual punishment, but also violated his right to substantive due process.
But Mr. Garcia didn’t present this claim in district court. So he failed to
preserve this claim. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,
1130–31 (10th Cir. 2011).
4. Mr. Garcia hasn’t addressed the district court’s reasons for rejecting his claims under the Americans with Disabilities Act.
Mr. Garcia also asserted a claim under the Americans with
Disabilities Act, seeking damages and an injunction. The district court
dismissed this claim, reasoning that (1) the defendants enjoyed sovereign
immunity as to damages and (2) the request for an injunction was moot. In
his opening brief, Mr. Garcia again argues that the defendants violated the
Act, but he doesn’t address the district court’s reasons for dismissing the
claim. So we have no basis for disturbing the ruling. See p. 4, above. 2
2 In his reply brief, Mr. Garcia argues that the claim for an injunction wasn’t moot because authorities could return him to Hutchinson. But Mr. Garcia needed to make this argument in the opening brief rather than wait until the reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000).
6 Appellate Case: 23-3053 Document: 010111006097 Date Filed: 02/27/2024 Page: 7
Request for appellate counsel
Mr. Garcia asks us to appoint an attorney for him to show that (1) the
claim under the Americans with Disabilities Act is not moot because he
could be returned to Hutchinson and (2) an attorney could put the case in
legal terms that we can understand.
Like the district court, however, we cannot force an attorney to take
the case. See Part 1, above. We can only ask an attorney to represent Mr.
Garcia. See id. Without some basis to expect Mr. Garcia’s return to
Hutchinson, we doubt that Mr. Garcia would have standing to base a claim
on the possibility of a future injury. See Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1087 (10th Cir. 2006) (stating that allegations about
the possibility of a future injury would not create standing). We thus lack a
basis to seek representation for Mr. Garcia.
** *
We affirm the district court’s dismissals and denial of the motion for
appointment of counsel. We also decline to request appellate counsel for
Mr. Garcia. But we grant Mr. Garcia’s request for leave to proceed in
forma pauperis.
Entered for the Court
Robert E. Bacharach Circuit Judge