FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court FREDERICK RIDEOUT GRAY, JR.,
Plaintiff - Appellant,
v. No. 17-6135 (D.C. No. 5:17-CV-00137-F) GEO GROUP, INC.; LAWTON (W.D. Okla.) CORRECTIONAL FACILITY; JOE M. ALLBAUGH; MARK KNUTSON; GREG WILLIAMS; HECTOR A. RIOS, JR.; JOHN/JANE DOE; CHRISTINA THOMAS; BUDDY HONAKER; DR. FNU LANGE, Ph.D.; DR. JANNA MERGAN, Ph.D.; FNU COLLINS; LT. FNU MECDE; LT. FNU ENGLE; MIKE PLUME; JAMIE RICHMAND; DR. SAM MUSLLAM, M.D.; DR. FNU SHAH; FNU SIMPKINS, LPN; FNU JUAREZ, C/O; FNU TUNSTAL, C/O; FNU WASHINGTON, C/O; FNU BLACK, CCM IV, in their individual (personal) and/or official capacities,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
* After examining Plaintiff-Appellant’s brief and the 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________
Frederick Rideout Gray, Jr., a state inmate proceeding pro se and in forma
pauperis, filed suit under 42 U.S.C. § 1983 and Oklahoma law against various prison and
Oklahoma Department of Corrections (ODOC) officials in their personal and/or official
capacities. He appeals the district court’s dismissal of his action and its denial of his
motions for leave to amend his complaint and for appointment of counsel. He also
requests leave to proceed on appeal in forma pauperis. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm the dismissal with prejudice of several claims and the
district court’s denial of Gray’s motions for appointment of counsel. We reverse the
judgment dismissing other claims, reverse denial of leave to amend, and remand for
further proceedings. We also grant the IFP motion.
BACKGROUND
According to his complaint, Gray is a long-time Oklahoma state inmate who
was housed in the Inmate Mental Health Unit of the Oklahoma State Penitentiary
until he was transferred in June 2016 to the Lawton Correctional Facility (LCF).
Gray alleged that after his transfer various LCF staff and ODOC officials were
deliberately indifferent to his previously diagnosed mental health and other medical
concerns, filed unjustified misconduct reports against him to cover up their wrong-
doing and in retaliation for his verbal and written grievances, failed to address his
grievances, and promulgated an unconstitutional 10:00 p.m. lights-out policy. As a
result, Gray filed a civil rights complaint under § 1983 against more than
2 20 defendants alleging their actions had deprived him of rights secured by the
U.S. Constitution and other federal and state laws. As relief, he sought monetary
damages, declaratory relief, an injunction ordering his transfer to another prison where he
could receive mental health treatment, treatment of various physical injuries, and
expungement of his disciplinary convictions.
On referral from the district court, the magistrate judge screened Gray’s
complaint pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2) and
recommended that his claims be dismissed for failure to state a claim, some with
prejudice and some without prejudice. The magistrate judge also recommended that
the district court deny Gray’s motion for appointment of counsel and decline to
exercise supplemental jurisdiction over his state law claims. Gray filed objections to
most of these recommendations, as well as a motion for leave to amend his complaint
and amended complaint and a second motion for appointment of counsel that
included a request for appointment of a guardian ad litem. The district court adopted
the magistrate judge’s recommendation in full, denied Gray’s motion for leave to
amend, struck his amended complaint, denied his second motion for appointment of
counsel or guardian ad litem, and entered judgment against him. It also denied
Gray’s subsequent motions under Rule 59(e) and Rule 60(b) in which he sought relief
from judgment in order to amend his complaint. This appeal followed.
3 DISCUSSION
Gray appeals the district court’s dismissal of certain of his claims and its denial of
his motions to amend his complaint and for appointment of counsel. We address each in
turn.
A. Dismissal of claims1
We review de novo a district court’s dismissal of a prisoner’s claims under
28 U.S.C. § 1915A and § 1915(e)(2) for failure to state claim. McBride v. Deer,
240 F.3d 1287, 1289 (10th Cir. 2001). In this review, we consider whether Gray’s
complaint contains sufficient facts “to state a claim to relief that is plausible on its
face,” taking all well-pleaded facts, but not conclusory allegations, as true and
construing them in the light most favorable to him. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks omitted); see also Kay v. Bemis, 500 F.3d 1214,
1217 (10th Cir. 2007). We also consider the exhibits to Gray’s complaint in
determining whether he stated a claim, see Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001), as well as factual allegations included in his objections to the
magistrate’s report and recommendation, see McBride, 240 F.3d at 1289. Although
we liberally construe Gray’s pro se complaint and other filings in our review, we do
1 Mr. Gray abandoned or has forfeited appellate review of two additional claims asserted in his complaint. In his objections to the magistrate judge’s report and recommendation, he expressly abandoned his claim that various defendants failed to protect him from inmate assault. R. at 327. He forfeited appellate review of the district court’s dismissal with prejudice of his claim regarding access to prison programs by failing to address dismissal of this claim in his opening brief. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
4 not act as his advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). Notwithstanding his pro se status, Gray also still 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), and of complying with the same
rules of procedure as other litigants, Garrett, 425 F.3d at 840.
1. Deliberate indifference to medical needs
“A prison official’s deliberate indifference to an inmate’s serious medical
needs is a violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). Gray alleges a
number of the defendants violated his Eighth Amendment rights after his transfer to
the LCF by: (1) not properly treating his previously diagnosed mental illness; and
(2) failing to adequately address his previously injured knee and neck as well as
diabetic nerve pain in his feet and other injuries.
The test for a deliberate indifference claim has both objective and subjective
components. Id. The objective component requires that the harm suffered as a result
of the prison’s inadequate medical care be sufficiently serious to implicate the Eighth
Amendment’s Cruel and Unusual Punishment Clause. See id. at 753. “[A] medical
need is sufficiently serious if it is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Id. at 751 (internal quotation marks
omitted).
5 The subjective component of the deliberate indifference test requires that the
plaintiff “present evidence of the prison official’s culpable state of mind,” id., and is
met by showing that the defendant knew the plaintiff “faced a substantial risk of
harm and disregarded that risk, by failing to take reasonable measures to abate it,”
Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009) (internal quotation marks
omitted); see also Mata, 427 F.3d at 751. Allegations or evidence that the defendants
were negligent in diagnosing or treating a medical condition does not meet this
standard. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Nor does mere
disagreement with the type of medical care provided establish an Eighth Amendment
violation. See Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (prisoners
do not have Eighth Amendment “right to a particular course of treatment”).
The district court dismissed Gray’s deliberate indifference claim without
prejudice based on his failure to allege sufficient facts to establish either component
of this claim as to any of his asserted medical needs. In particular, the court found
Gray relied primarily on conclusory legal assertions to state this claim and that he
failed to provide fair notice to defendants of who did what to whom and when as
required by Rule 8 of the Federal Rules of Civil Procedure.2 We conclude the court
2 Rule 8 requires that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), one that is supported by more than conclusory allegations, see Iqbal, 556 U.S. at 678, and contains sufficient information to give the defendants fair notice of his claims against each of them, see Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (“[I]n a § 1983 action it is particularly important that the complaint make clear exactly who is (continued) 6 erred in dismissing Gray’s deliberate indifference claim relating to his mental health
needs and his injured knee but was correct in finding that he failed to state a
deliberate indifference claim regarding his neck injury and other asserted medical
conditions.
Mental health needs
Reading Gray’s complaint and objections liberally, Gray alleged in his
complaint and objections to the magistrate judge’s report and recommendation that:
(1) he has been diagnosed and treated for bipolar, depressive, psychotic disorders;
(2) after his transfer to LCF he failed to receive his customary mental health
medications as a result of numerous, recurring dispensing errors by the prison
nursing staff; (3) he informed defendant Thomas (LCF health services administrator),
Shah (LCF psychiatrist), Rios (LCF warden), Black (LCF case manager coordinator),
Lange (ODOC regional mental health coordinator) and Morgan (ODOC chief mental
health officer), of these failings and warned defendants Thomas, Shah, Black, Rios,
and Lange that he needed to receive these medications in the proper doses to remain
stable and not become a management problem; (4) these officials did not take action
to correct the persistent medication errors; and, (5) as a result, Gray became mentally
unstable, acted out, and was disciplined by placement in a segregated housing unit.
He further alleged that as his mental health deteriorated, he asked defendants Lange,
Morgan, Rios, and Thomas to transfer him to a facility that had a mental health
alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her.” (internal quotation marks omitted)).
7 treatment program that could better treat his mental health concerns, but that they
failed to act. In addition, he alleged that defendants Rios, Shah, Thomas and Lange
were deliberately indifferent to his mental health needs as a result of their failure to
properly hire, train and manage nurses who were capable of properly dispensing
medication. Based on these facts, in his objections Gray identified defendants
Thomas, Lange, Morgan, Rios, Black, and Shah as the defendants subject to this
deliberate indifference claim.3
Gray’s allegation that he was diagnosed and treated for the cited mental health
disorders is sufficient to establish the objective component of his deliberate
indifference claim regarding his mental health needs. See Mata, 427 F.3d at 751
(“[A] medical need is sufficiently serious if it is one that has been diagnosed by a
physician as mandating treatment . . . .” (internal quotation marks omitted)). His
allegations that he notified the named defendants of the persistent medication errors and
their potential consequences and of his deteriorating mental health and that they did not
take action to abate these conditions satisfies the subjective component of this deliberate
indifference claim against these defendants. See Martinez, 563 F.3d at 1089 (holding
subjective component met by showing that defendants knew the plaintiff “faced a
3 In his complaint, Mr. Gray identified a larger set of defendants as being aware of these medication errors but deliberately indifferent to them. See id. at 70 (¶ 36) (in addition to the six defendants named in his objections, identifying defendants Honaker, Collins, Allbaugh, Williams, “Lt. Engle” and “RN Richmond”). We agree with the district court that Mr. Gray’s allegations regarding the additional defendants in this list are conclusory and hence are not sufficient to state a claim against them.
8 substantial risk of harm and disregarded that risk, by failing to take reasonable
measures to abate it”) (internal quotation marks omitted). Further, these allegations
meet the notice requirements imposed by Rule 8 because they inform each defendant
what they allegedly did to violate federal law with enough specificity to enable each
defendant to respond. See Barfield v. Commerce Bank, N.A., 484 F.3d 1276, 1281
(10th Cir. 2007). We therefore reverse the district court’s dismissal of Gray’s mental
health deliberate indifference claim against these six defendants for failure to state a
claim.4
Injured knee
In his complaint and objections, Gray satisfied the objective component for his
deliberate indifference claim regarding his injured knee by alleging that the injury was
sufficiently serious and painful that it was treated by the LCF medical staff. See
R. at 323 (reporting LCF medical staff attempted to relieve knee pain by a cortisone
injection and medication); see also R. at 230 (referencing treatment at previous facility).
He also alleged that he continued to suffer significant chronic pain despite the cortisone
injection and pain medication he received, but that additional treatment and potential
surgery were delayed because an MRI ordered by Dr. Musllam, LCF’s resident
physician, in October 2016 to assess the injury had not taken place as of the date of his
4 In so holding, we do not address whether factual material included in the 182-pages of exhibits Mr. Gray attached to his complaint, which consists primarily of requests for health service, requests to staff and grievances, are consistent with the allegations in Mr. Gray’s complaint and his objections to the magistrate judge’s report and recommendation.
9 complaint and his May 2017 objections. A delay in treatment that results in substantial
harm constitutes an Eighth Amendment violation, and the substantial harm requirement is
satisfied by evidence of “considerable pain.” Mata, 427 F.3d at 751 (internal quotation
marks omitted).
Gray also alleged that Dr. Musllam told him in response to his request for
additional pain relief that he did “not meet the requirements for anything stronger” and
needed “to toughen up.” R. at 323. Read liberally, these allegations assert Dr. Musllam
was aware of Gray’s knee injury and the chronic pain it caused him but did not take
reasonable steps to abate it. Gray therefore sufficiently pled that Dr. Musllam had the
culpable state of mind required to state a deliberate indifference claim against him.5 See
Martinez, 563 F.3d at 1089.
It appears Gray also alleges other defendants were deliberately indifferent to
his knee injury, see R. at 323 (referring to “defendants” who knew of but did not do
anything regarding his serious knee pain), but he does not identify these defendants
or facts notifying them of what they allegedly did, or did not do, with respect to this
injury. Accordingly, Gray failed to state a claim or satisfy Rule 8’s notice
requirements regarding his knee-related deliberate indifference claim with respect to
any defendant other than Dr. Musllam.
5 Of course, if the evidence shows that Dr. Musllam’s failure to treat Mr. Gray’s knee pain reflected his professional judgement or even was negligent, rather than deliberately indifferent, then the subjective component of this claim would not be met. See Estelle, 429 U.S. at 106; Callahan, 471 F.3d at 1160. This is not the question before us, however, as we are only concerned at this time with whether Mr. Gray has pled sufficient facts to state a plausible claim.
10 2. Retaliatory misconduct charges
In his complaint Gray alleged defendants Engle, Tunstal, Juarez, Simpkins and
Washington each wrote “bogus” misconduct charges against him in order to cover up
their failure to provide him with his prescribed mental health medications and/or in
retaliation for the grievances he pursued or threatened to pursue. The magistrate judge
construed these allegations as an attempt to assert a claim that each of these defendants
violated Gray’s First Amendment rights by retaliating against him for exercising his
constitutional right to file administrative grievances, see Gee v. Pacheco, 627 F.3d 1178,
1189 (10th Cir. 2010) (inmate’s right to file grievances and petition the court are
constitutionally protected activities); Williams v. Meese, 926 F.2d 994, 998 (10th Cir.
1991) (same), and Gray has not objected to this characterization. In order to state a First
Amendment retaliation claim against each defendant, Gray had to allege: (1) he engaged
in constitutionally protected activity; (2) the defendant’s actions caused him to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in that
activity; and (3) the defendant’s adverse action was substantially motivated as a response
to his constitutionally protected activity. Mocek v. City of Albuquerque, 813 F.3d 912,
930 (10th Cir. 2015).
The district court dismissed Gray’s retaliation claim against defendant Juarez for
failure to state a claim without prejudice, for the reasons discussed below. It dismissed
his retaliation claims against defendants Engle, Tunstal, Simpkins and Washington with
prejudice on the ground that Gray alleged only that they filed bogus charges against him,
rather than alleging that they acted in retaliation for him filing grievances or otherwise
11 engaging in constitutionally protected activity. “But dismissal 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.”
Gee, 627 F.3d at 1195 (internal quotation marks omitted). It is not clear to us at this
juncture that this is so. In fact, in his objections to the magistrate judge’s report, Gray
affirmatively alleged that each of these defendants “contrived their bogus misconduct
offences due to [his] proactiveness in the grievance process and . . . to impede his efforts
to seek redress in the courts.” R. at 327. These allegations, accepted as true and read in
the light most favorable to Gray for purposes of assessing whether he has stated a claim,
see McBride, 240 F.3d at 1289, undermine the district court’s stated rationale for
dismissing the First Amendment retaliation claim against these defendants with
prejudice.
That is not to say that Gray has successfully stated a retaliation claim against these
four defendants. His allegation of retaliatory motive against these defendants is both
vague and conclusory. His allegations also fail to explain why each of the misconduct
charges he identifies would chill a person of ordinary firmness from continuing to engage
in the protected activity, or that each defendant would not have brought the misconduct
charges but for Gray’s grievances, see Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998) (“An inmate claiming retaliation must allege specific facts showing
retaliation because of the exercise of the prisoner’s constitutional rights.” (internal
quotation marks omitted)). It was these same defects that prompted the district court to
dismiss Gray’s final retaliation claim, against defendant Juarez, without prejudice even
12 though Gray had alleged defendant Juarez acted with a retaliatory motive. We therefore
agree with the district court that Gray has thus far failed to state a claim for First
Amendment retaliation claim against any of these five defendants. The dismissal as to all
five defendants should have been without prejudice, however, for the reasons stated
above.6
3. Additional claims on appeal
Gray also appeals the district court’s dismissal of certain of his other claims. After
careful consideration of Gray’s brief, the record on appeal and relevant authority, we find
no error in dismissal of these claims.
The district court properly dismissed without prejudice Gray’s official-capacity
claims for damages against the ODOC defendants because such claims are construed as
claims against the state and are thus barred by Eleventh Amendment sovereign immunity.
See, e.g., Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017) (holding federal courts
lack jurisdiction to consider official-capacity damage claims because of Eleventh
Amendment immunity).
The district court also properly dismissed with prejudice Gray’s Eighth
Amendment challenge to LCF’s 10:00 p.m. lights-out policy. As Gray notes, some
6 Mr. Gray also challenges the magistrate judge’s statement that part of the relief sought on this claim, expungement of the allegedly retaliatory misconduct convictions, could be obtained only through a separate petition for writ of habeas corpus under 28 U.S.C. § 2241. See R. at 303 n.5. The magistrate judge acknowledged later in his discussion of this issue, however, that he lacked sufficient knowledge about these misconduct convictions to know if this result was required under Edwards v. Balisok, 520 U.S. 641, 643-48 (1997) and Heck v. Humphrey, 512 U.S. 477 (1994). See R. at 303 n.5.
13 courts have held that a prison’s failure to provide adequate lighting for reading and other
purposes may violate the Eighth Amendment’s requirement that adequate shelter be
provided. See Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir. 1996); Hoptowit v.
Spellman, 753 F.2d 779, 783 (9th Cir. 1985). Gray does not allege that he lacks
sufficient light to read and write, however, only that he would prefer to have light
available for these purposes after 10:00 p.m., when the prison is quieter. The prison’s
failure to accommodate this preference is not objectively serious enough to violate the
Eighth Amendment’s prohibition of cruel and unusual punishment.
Finally, there is no independent constitutional right to state administrative
grievance procedures. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Flick v. Alba,
932 F.2d 728, 729 (8th Cir. 1991) (per curiam). “When the claim underlying the
administrative grievance involves a constitutional right, the prisoner’s right to petition the
government for redress is the right of access to the courts, which is not compromised by
the prison’s refusal to entertain his grievance.” Flick, 932 F.2d at 729. Accordingly, the
district court properly dismissed Gray’s due process, First Amendment, and equal
protection claims relating to various defendants’ failure to answer his grievances.7
B. Denial of leave to amend complaint
The district court denied Gray’s motion for leave to amend his complaint, filed
contemporaneously with his objections to the magistrate judge’s report and
7 Some of Mr. Gray’s grievance-related allegations and argument appear to be intended to demonstrate that he exhausted his administrative remedies regarding various claims. Neither the magistrate judge nor the district court addressed this issue in the proceedings below, and hence it is not before us on appeal.
14 recommendation, and also his subsequent motions under Rules 59(e) and 60 seeking
relief from the judgment dismissing this action to allow him to amend his complaint.
We review a district court’s refusal to permit an amendment for abuse of
discretion. Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007).
Under this standard, we will disturb the district court’s decision only if we have
“a definite and firm conviction that the lower court made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.” Nieto v. Kapoor,
268 F.3d 1208, 1221 (10th Cir. 2001) (internal quotation marks omitted). Because
Fed. R. Civ. P. 15(a) provides that leave should be freely granted “when justice so
requires,” denial of leave is generally justified only for “undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank v.
U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). In addition, as a general rule,
“[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.” Kay, 500 F.3d at 1217 (internal quotation marks
In his proposed amended complaint, Gray re-alleged his deliberate indifference
claims, his First Amendment retaliation claims against defendants Juarez, Engle, Tunstal,
Simpkins, and Washington, and new retaliation claims and an assault and battery claim
against additional defendants who were not included in his original complaint. The
district court denied Gray’s requests for leave to amend his complaint and struck his
15 proffered amended complaint on two grounds, the first of which was that Gray sought to
re-allege certain claims the district court had dismissed with prejudice earlier in its order.
Of the claims included in the amended complaint, however, only the First Amendment
retaliation claims against defendants Engle, Tunstal, Simpkins, and Washington had been
dismissed with prejudice, and we concluded for the reasons stated earlier that this
dismissal should instead have been without prejudice.
The district court also denied leave to amend on the ground that Gray’s amended
complaint failed to provide a short, plain statement of his claims as required by Rule 8.
Gray’s amended complaint, however, included considerable additional factual
allegations. These included allegations reported in his objections to the magistrate
judge’s recommendation that we concluded above help satisfy Rule 8’s requirements
with respect to his deliberate indifference claim against certain defendants. Gray
therefore complied with Rule 8’s pleading requirements with respect to the deliberate
indifference claim against these defendants.
While the remainder of the re-alleged and new claims in the amended complaint
may still have been deficient under Rule 8, it is notable that the district court did not
consider whether these defects could be cured by amendment or rule that amendment of
these claims was futile. As indicated earlier, as a general rule, a pro se plaintiff should be
given an opportunity to amend his complaint unless the district court finds amendment
would be futile or that one of the other recognized justifications for denying leave to
amend applies. See Kay, 500 F.3d at 1217; Frank, 3 F.3d at 1365. In light of this
authority and our finding that at least part of the amended complaint satisfied Rule 8 and
16 stated a deliberate indifference claim, we find the district court “exceeded the bounds
of permissible choice in the circumstances,” Nieto, 268 F.3d at 1221 (internal
quotation marks omitted), when it denied Gray leave to amend. We therefore reverse
and remand the district court’s denial of Gray’s requests for leave to amend.
C. Denial of motions to appoint counsel8
We review the district court’s denial of Gray’s motions for appointment of counsel
for abuse of discretion. Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). While
courts are not authorized to appoint counsel in a pro se § 1983 case, they may request that
an attorney take the case.9 Id. at 396 (citing 28 U.S.C. § 1915(e)(1)). In considering
whether to make such a request, the court should consider: (1) the merits of the claims;
(2) the nature of the factual issues raised in the claims; (3) the litigant’s ability to present
the claims; and (4) the complexity of the legal issues raised. Rucks v. Boergermann,
57 F.3d 978, 979 (10th Cir. 1995). The district court considered each of these factors in
denying Gray’s motion. Having considered Gray’s arguments on appeal, we conclude
that the district court did not make a clear error of judgment or exceed the bounds of
permissible choice in the circumstances. Accordingly, the district court did not abuse its
8 Although Mr. Gray referenced his request for appointment of a guardian ad litem in the heading for his argument on these motions, he forfeited appellate review of the district court’s denial of this request by failing to include argument concerning it in his opening brief. See Bronson, 500 F.3d at 1104. 9 Attorneys may decline these requests, and sometimes do because the court may be unable to pay them for their time or reimburse them for out-of-pocket expenses. See Rachel, 820 F.3d at 397 n.7.
17 discretion in denying Gray’s motions for appointment of counsel. See Nieto, 268 F.3d
at 1221.
CONCLUSION
We affirm the district court’s dismissal with prejudice of Gray’s official-capacity
damage claims, his Eighth Amendment claim regarding LCF’s 10:00 p.m. lights out
policy and his due process, First Amendment and equal protection claims against various
defendants for failing to answer his grievances. We also affirm denial of Gray’s motions
for appointment of counsel. We reverse the district court’s judgment dismissing Gray’s
deliberate indifference claim against defendants Thomas, Lange, Morgan, Rios, Black,
Shah, and Musllam and dismissing his retaliation claims with prejudice against
defendants Engle, Tunstal, Simpkins, and Washington. We also reverse the denial of
Gray’s requests for leave to amend and remand the case for further proceedings
consistent with this decision. In addition, we grant Gray’s motion to proceed in forma
pauperis and remind him that he must continue making partial payments until the entire
fee has been paid in full.
Entered for the Court
Nancy L. Moritz Circuit Judge