FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 9, 2020 _________________________________ Christopher M. Wolpert Clerk of Court LOUIS PEOPLES, JR.,
Plaintiff - Appellant,
v. No. 19-1111 (D.C. No. 1:17-CV-00776-MSK-NYW) BAKER; NEWCOMB; SIMPSON; (D. Colo.) LARSON,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
Louis Peoples, Jr., appeals following a grant of summary judgment in favor of
defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Peoples is an inmate at the Sterling Correctional Facility. On September 28,
2016, he was working as a porter assigned to the teacher’s workroom in the programs
building. Correctional Officer Harley Baker observed Peoples leave his assigned
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. area and walk to the law library at the other end of the building. Baker contacted
Krista Newcombe, who verified Peoples’ assignment. The two officers confronted
Peoples, who became angry. Meanwhile, Sergeant Tracy Larson spoke with Jennifer
Anderson, a non-security staff member, who stated that she asked Peoples to come to
the library after another inmate requested his assistance. Larson explained to both
Anderson and Peoples that Peoples was not permitted to enter the law library unless
he was on the list of assigned inmates.
Officers handcuffed Peoples and brought him to the center of the programs
building. Larson spoke with Captain Michael Tidwell, who ordered a strip search.
They brought Peoples to a nearby staff bathroom. Newcombe, a female officer, faced
away from Peoples during the search. Baker and a teacher in the area, Matthew
Simpson, stood in the doorway of the bathroom. The search lasted three minutes and
did not uncover any contraband.
Peoples advanced six claims against the officers involved in the search. The
district court dismissed some of his claims as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) but referred his Fourth Amendment claim to a presiding judge.
Defendants moved for summary judgment on the basis of qualified immunity, and the
court granted summary judgment in favor of defendants. Peoples timely appealed.
II
We review a district court’s grant of summary judgment de novo. See
Genberg v. Porter, 882 F.3d 1249, 1253 (10th Cir. 2018). A party is entitled to
summary judgment only if the evidence shows that there is no genuine issue as to any
2 material fact and the moving party is entitled to judgment as a matter of law. See id.
Because Peoples proceeds pro se, we construe his filings liberally but do not act as
his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
To overcome a defense of qualified immunity, a plaintiff must show that
defendants’ conduct violated his constitutional rights and that the relevant law was
clearly established. Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006). “For the
law to be ‘clearly established,’ there ordinarily must be a Supreme Court or Tenth
Circuit opinion on point.” Pompeo v. Bd. of Regents of the Univ. of N.M., 852 F.3d
973, 981 (10th Cir. 2017). We must “define the clearly established right at issue on
the basis of the specific context of the case.” Id. (quotation omitted). “This is not to
say that an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that in light of the pre-
existing law the unlawfulness must be apparent.” Mimics, Inc. v. Village of Angel
Fire, 394 F.3d 836, 842 (10th Cir. 2005) (quotation omitted).
As we have previously held, prisoners have a well-established right not to be
subject to a “strip search in full view of several (or perhaps many) others unless the
procedure is reasonably related to a legitimate penological interest.” Farmer v.
Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002) (emphasis omitted). In reviewing such
searches, courts consider “the scope of the particular intrusion, the manner in which
it is conducted, the justification for initiating it, and the place in which it is
conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). However, prison officials
must “be accorded wide-ranging deference in the adoption and execution of policies
3 and practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Id. at 547.
The record in this case demonstrates that defendants had legitimate
penological concerns. Peoples was discovered in an area of the programs building to
which he was not assigned. Officers averred that Peoples had been previously
discovered out of his assigned area in that building, that inmates sometimes leave
their assigned areas to transport contraband, and that libraries are areas of particular
concern because computer equipment can be fashioned into weapons and books can
be used to transmit messages between inmates. Although, as Captain Tidwell
acknowledged, staff members should have communicated better with each other, we
cannot say that the search was so clearly unconstitutional that a reasonable officer
would have known of its unlawful character. See Mimics, Inc., 394 F.3d at 842.
We reach the same conclusion as to the manner in which the search was
conducted. Officers moved Peoples to a nearby staff bathroom because conducting
the search promptly was important and, of the readily available options, the bathroom
offered the most privacy. Although Peoples complains that the bathroom was visible
to a classroom across the hall, photographic evidence shows that any such view
would have been severely obstructed (particularly with two officers standing in the
doorway). Even assuming that the manner of the search was unlawful, the
unlawfulness would not necessarily have been clear to a reasonable officer. See id.
Further, Peoples’ arguments regarding prison regulations do not alter our conclusion
4 because the violation of a regulation does not necessarily amount to a constitutional
violation. See Sandin v.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 9, 2020 _________________________________ Christopher M. Wolpert Clerk of Court LOUIS PEOPLES, JR.,
Plaintiff - Appellant,
v. No. 19-1111 (D.C. No. 1:17-CV-00776-MSK-NYW) BAKER; NEWCOMB; SIMPSON; (D. Colo.) LARSON,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
Louis Peoples, Jr., appeals following a grant of summary judgment in favor of
defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Peoples is an inmate at the Sterling Correctional Facility. On September 28,
2016, he was working as a porter assigned to the teacher’s workroom in the programs
building. Correctional Officer Harley Baker observed Peoples leave his assigned
* 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. area and walk to the law library at the other end of the building. Baker contacted
Krista Newcombe, who verified Peoples’ assignment. The two officers confronted
Peoples, who became angry. Meanwhile, Sergeant Tracy Larson spoke with Jennifer
Anderson, a non-security staff member, who stated that she asked Peoples to come to
the library after another inmate requested his assistance. Larson explained to both
Anderson and Peoples that Peoples was not permitted to enter the law library unless
he was on the list of assigned inmates.
Officers handcuffed Peoples and brought him to the center of the programs
building. Larson spoke with Captain Michael Tidwell, who ordered a strip search.
They brought Peoples to a nearby staff bathroom. Newcombe, a female officer, faced
away from Peoples during the search. Baker and a teacher in the area, Matthew
Simpson, stood in the doorway of the bathroom. The search lasted three minutes and
did not uncover any contraband.
Peoples advanced six claims against the officers involved in the search. The
district court dismissed some of his claims as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) but referred his Fourth Amendment claim to a presiding judge.
Defendants moved for summary judgment on the basis of qualified immunity, and the
court granted summary judgment in favor of defendants. Peoples timely appealed.
II
We review a district court’s grant of summary judgment de novo. See
Genberg v. Porter, 882 F.3d 1249, 1253 (10th Cir. 2018). A party is entitled to
summary judgment only if the evidence shows that there is no genuine issue as to any
2 material fact and the moving party is entitled to judgment as a matter of law. See id.
Because Peoples proceeds pro se, we construe his filings liberally but do not act as
his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
To overcome a defense of qualified immunity, a plaintiff must show that
defendants’ conduct violated his constitutional rights and that the relevant law was
clearly established. Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006). “For the
law to be ‘clearly established,’ there ordinarily must be a Supreme Court or Tenth
Circuit opinion on point.” Pompeo v. Bd. of Regents of the Univ. of N.M., 852 F.3d
973, 981 (10th Cir. 2017). We must “define the clearly established right at issue on
the basis of the specific context of the case.” Id. (quotation omitted). “This is not to
say that an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that in light of the pre-
existing law the unlawfulness must be apparent.” Mimics, Inc. v. Village of Angel
Fire, 394 F.3d 836, 842 (10th Cir. 2005) (quotation omitted).
As we have previously held, prisoners have a well-established right not to be
subject to a “strip search in full view of several (or perhaps many) others unless the
procedure is reasonably related to a legitimate penological interest.” Farmer v.
Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002) (emphasis omitted). In reviewing such
searches, courts consider “the scope of the particular intrusion, the manner in which
it is conducted, the justification for initiating it, and the place in which it is
conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). However, prison officials
must “be accorded wide-ranging deference in the adoption and execution of policies
3 and practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Id. at 547.
The record in this case demonstrates that defendants had legitimate
penological concerns. Peoples was discovered in an area of the programs building to
which he was not assigned. Officers averred that Peoples had been previously
discovered out of his assigned area in that building, that inmates sometimes leave
their assigned areas to transport contraband, and that libraries are areas of particular
concern because computer equipment can be fashioned into weapons and books can
be used to transmit messages between inmates. Although, as Captain Tidwell
acknowledged, staff members should have communicated better with each other, we
cannot say that the search was so clearly unconstitutional that a reasonable officer
would have known of its unlawful character. See Mimics, Inc., 394 F.3d at 842.
We reach the same conclusion as to the manner in which the search was
conducted. Officers moved Peoples to a nearby staff bathroom because conducting
the search promptly was important and, of the readily available options, the bathroom
offered the most privacy. Although Peoples complains that the bathroom was visible
to a classroom across the hall, photographic evidence shows that any such view
would have been severely obstructed (particularly with two officers standing in the
doorway). Even assuming that the manner of the search was unlawful, the
unlawfulness would not necessarily have been clear to a reasonable officer. See id.
Further, Peoples’ arguments regarding prison regulations do not alter our conclusion
4 because the violation of a regulation does not necessarily amount to a constitutional
violation. See Sandin v. Conner, 515 U.S. 472, 481-82 (1995).
Peoples also states that the district court improperly granted summary
judgment as to his retaliation claim. The district court rejected defendants’ argument
that Peoples’ retaliation claim had been dismissed in its entirety under
§ 1915(e)(2)(B)(i) at the screening stage but ultimately granted defendants summary
judgment on the retaliation claim. Construing Peoples’ appellate filings liberally, we
understand him to argue that this was an improper sua sponte grant of summary
judgment. Although the sua sponte grant of summary judgment is disfavored, it is
reversible error only if the losing party was not put on notice of the need to come
forward with evidence and suffered prejudice. Oldham v. O.K. Farms, Inc., 871 F.3d
1147, 1150 (10th Cir. 2017). Peoples fails to satisfy this standard. He devoted the
bulk of his summary judgment briefing below to the retaliation issue and fails to
identify any other evidence or argument he might have advanced. See id.; A.M. v.
Holmes, 830 F.3d 1123, 1137 (10th Cir. 2016). And because Peoples does not
advance a substantive argument as to the retaliation claim, it is waived. See Bronson
v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).1
Peoples also appeals the denial of his motions to appoint counsel. “We review
the denial of appointment of counsel in a civil case for an abuse of discretion.” Rucks v.
1 To the extent Peoples challenges the constitutionality of summary judgment generally, his argument is foreclosed by circuit precedent. See Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001). 5 Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In deciding a motion for appointment
of counsel, courts should consider “the merits of the litigant’s claims, the nature of the
factual issues raised in the claims, the litigant’s ability to present his claims, and the
complexity of the legal issues raised by the claims.” Id. (quotation omitted).
Considering these factors, we cannot say the district court abused its discretion.
III
AFFIRMED. Peoples’ motion for an extension of time to serve defendants
his reply brief is DENIED. His motion to proceed in forma pauperis is GRANTED,
but we remind him of his obligation to make partial payments until his filing fees are
paid in full. See 28 U.S.C. § 1915(b)(1).
Entered for the Court
Carlos F. Lucero Circuit Judge