Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 24, 2025 _________________________________ Christopher M. Wolpert Clerk of Court MARTY WAYNE RHODES,
Plaintiff - Appellant,
v. No. 24-8086 (D.C. No. 1:23-CV-00224-SWS) WYOMING DEPARTMENT OF (D. Wyo.) CORRECTIONS; JENNIFER BOHN, individually and as Wyoming Department of Corrections Honor Conservation Camp Assistant Warden; SETH NORRIS, individually and as Wyoming Department of Corrections Medium Correctional Institution Warden; DANIEL SHANNON, individually; STEPHEN SCARBROUGH, individually and as Wyoming Department of Corrections State Penitentiary Correctional Officer; CARL VOIGTSBERGER, individually and as Wyoming Department of Corrections Housing Director,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT * _________________________________
Before McHUGH, KELLY, and FEDERICO, Circuit Judges.
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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 2
Appellant Marty Wayne Rhodes, a pro se prisoner, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action against the Wyoming Department of
Corrections (WDOC) and some of its prison officers and staff. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
In November 2022, Rhodes filed a § 1983 action against various WDOC
prison officers and staff following a strip search and urine test in the restroom at the
Wyoming State Penitentiary. Rhodes claimed that when he went to dress, his clothes
were missing, and Officer Stephen Scarbrough was looking at his penis with a smile.
He contended this lasted for fifteen minutes before another officer returned to the
restroom. Upon that officer’s return, Rhodes demanded they return his clothes. He
reported the incident as a violation of the Prison Rape Elimination Act (PREA). The
prison investigated the incident and determined it was unsubstantiated. Rhodes then
filed a § 1983 action against Scarbrough and other prison officials seeking recourse
for the alleged PREA violation and other matters. The district court dismissed the
case. Rhodes appealed and this court affirmed the district court. See Rhodes v.
Shannon, No. 23-8026, 2024 WL 79964, at *4 (10th Cir. Jan. 8, 2024) (unpublished).
In November 2023, while No. 23-8026 was pending, Rhodes filed the lawsuit
underlying this appeal against the WDOC and various WDOC prison officers and
staff, including Scarbrough. In his Amended Complaint, Rhodes alleged he faced
retaliation for the prior § 1983 action and suffered cruel and unusual punishment in
violation of the Eighth Amendment. After the 28 U.S.C. § 1915A screening, the
2 Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 3
district court dismissed the following claims for failure to state a claim under
§ 1915A(b)(1). First, the district court determined Rhodes failed to state an Eighth
Amendment claim against Scarbrough because he did not show Scarbrough’s conduct
was objectively harmful enough to establish a constitutional violation. Then it
determined Rhodes failed to plausibly state retaliation claims against Rochelle Stitt
and A. Burkhalter for violating his First, Eighth, and Fourteenth Amendment rights
by denying him phone access to call his daughter. The district court dismissed the
claims against Stitt and Burkhalter for two reasons: (1) the facts in the Amended
Complaint and inmate communication forms showed Rhodes failed to follow the
appropriate procedure to add his daughter’s number to his approved calling list; and
(2) he did not allege facts to show either person’s retaliatory motive. As for the
retaliation claim against Norris, the district court determined that Rhodes (1) did not
provide evidence of Norris’s motives to deny him phone access outside of the prior
lawsuit that was dismissed in Norris’s favor, and (2) noted again that Stitt and
Burkhalter relied on a legitimate basis to deny Rhodes phone access, not direction
from Norris. Finally, the district court held the retaliation claim against Carl
Voigtsberger failed because Rhodes did not identify why Voigtsberger would have
been motivated to retaliate against him.
As for Rhodes’s retaliation claims against Jennifer Bohn and Daniel Shannon,
and the Eighth Amendment deliberate indifference claim against Norris (collectively
with Bohn and Shannon, the Appellees), the district court determined he alleged facts
sufficient to survive the § 1915A screening. The case proceeded and both Rhodes
3 Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 4
and the Appellees filed motions for summary judgment for the surviving claims. The
Appellees responded to Rhodes’s motion, but Rhodes did not respond to the
Appellees’ motion. The district court entered summary judgment in favor of the
Appellees. This appeal followed.
II. Discussion
We construe Rhodes’s pro se pleadings liberally. Ledbetter v. City of Topeka,
318 F.3d 1183, 1187 (10th Cir. 2003). In so doing, we make some allowances for
deficiencies, such as unfamiliarity with pleading requirements, failure to cite
appropriate legal authority, and confusion of legal theories. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we cannot act as
his advocate by “constructing arguments and searching the record.” Id.
Rhodes appeals the district court’s summary judgment order in favor of the
Appellees. 1 But Rhodes did not respond to the Appellees’ joint motion for summary
judgment. His arguments on the Eighth Amendment deliberate indifference claim
against Norris, and the retaliation claims against Bohn and Shannon are new on
appeal. We can only review these new arguments for plain error. See Richison v.
The Opening Brief includes arguments involving the claims against Stephen 1
Scarbrough and Carl Voigtsberger. But those claims were dismissed in the § 1915A Screening Order. In his brief, Rhodes merely reiterates the allegations against these defendants from his complaint and does not address the district court’s reasons for dismissing them on screening.
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Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 24, 2025 _________________________________ Christopher M. Wolpert Clerk of Court MARTY WAYNE RHODES,
Plaintiff - Appellant,
v. No. 24-8086 (D.C. No. 1:23-CV-00224-SWS) WYOMING DEPARTMENT OF (D. Wyo.) CORRECTIONS; JENNIFER BOHN, individually and as Wyoming Department of Corrections Honor Conservation Camp Assistant Warden; SETH NORRIS, individually and as Wyoming Department of Corrections Medium Correctional Institution Warden; DANIEL SHANNON, individually; STEPHEN SCARBROUGH, individually and as Wyoming Department of Corrections State Penitentiary Correctional Officer; CARL VOIGTSBERGER, individually and as Wyoming Department of Corrections Housing Director,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT * _________________________________
Before McHUGH, KELLY, and FEDERICO, Circuit Judges.
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. Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 2
Appellant Marty Wayne Rhodes, a pro se prisoner, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action against the Wyoming Department of
Corrections (WDOC) and some of its prison officers and staff. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
In November 2022, Rhodes filed a § 1983 action against various WDOC
prison officers and staff following a strip search and urine test in the restroom at the
Wyoming State Penitentiary. Rhodes claimed that when he went to dress, his clothes
were missing, and Officer Stephen Scarbrough was looking at his penis with a smile.
He contended this lasted for fifteen minutes before another officer returned to the
restroom. Upon that officer’s return, Rhodes demanded they return his clothes. He
reported the incident as a violation of the Prison Rape Elimination Act (PREA). The
prison investigated the incident and determined it was unsubstantiated. Rhodes then
filed a § 1983 action against Scarbrough and other prison officials seeking recourse
for the alleged PREA violation and other matters. The district court dismissed the
case. Rhodes appealed and this court affirmed the district court. See Rhodes v.
Shannon, No. 23-8026, 2024 WL 79964, at *4 (10th Cir. Jan. 8, 2024) (unpublished).
In November 2023, while No. 23-8026 was pending, Rhodes filed the lawsuit
underlying this appeal against the WDOC and various WDOC prison officers and
staff, including Scarbrough. In his Amended Complaint, Rhodes alleged he faced
retaliation for the prior § 1983 action and suffered cruel and unusual punishment in
violation of the Eighth Amendment. After the 28 U.S.C. § 1915A screening, the
2 Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 3
district court dismissed the following claims for failure to state a claim under
§ 1915A(b)(1). First, the district court determined Rhodes failed to state an Eighth
Amendment claim against Scarbrough because he did not show Scarbrough’s conduct
was objectively harmful enough to establish a constitutional violation. Then it
determined Rhodes failed to plausibly state retaliation claims against Rochelle Stitt
and A. Burkhalter for violating his First, Eighth, and Fourteenth Amendment rights
by denying him phone access to call his daughter. The district court dismissed the
claims against Stitt and Burkhalter for two reasons: (1) the facts in the Amended
Complaint and inmate communication forms showed Rhodes failed to follow the
appropriate procedure to add his daughter’s number to his approved calling list; and
(2) he did not allege facts to show either person’s retaliatory motive. As for the
retaliation claim against Norris, the district court determined that Rhodes (1) did not
provide evidence of Norris’s motives to deny him phone access outside of the prior
lawsuit that was dismissed in Norris’s favor, and (2) noted again that Stitt and
Burkhalter relied on a legitimate basis to deny Rhodes phone access, not direction
from Norris. Finally, the district court held the retaliation claim against Carl
Voigtsberger failed because Rhodes did not identify why Voigtsberger would have
been motivated to retaliate against him.
As for Rhodes’s retaliation claims against Jennifer Bohn and Daniel Shannon,
and the Eighth Amendment deliberate indifference claim against Norris (collectively
with Bohn and Shannon, the Appellees), the district court determined he alleged facts
sufficient to survive the § 1915A screening. The case proceeded and both Rhodes
3 Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 4
and the Appellees filed motions for summary judgment for the surviving claims. The
Appellees responded to Rhodes’s motion, but Rhodes did not respond to the
Appellees’ motion. The district court entered summary judgment in favor of the
Appellees. This appeal followed.
II. Discussion
We construe Rhodes’s pro se pleadings liberally. Ledbetter v. City of Topeka,
318 F.3d 1183, 1187 (10th Cir. 2003). In so doing, we make some allowances for
deficiencies, such as unfamiliarity with pleading requirements, failure to cite
appropriate legal authority, and confusion of legal theories. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we cannot act as
his advocate by “constructing arguments and searching the record.” Id.
Rhodes appeals the district court’s summary judgment order in favor of the
Appellees. 1 But Rhodes did not respond to the Appellees’ joint motion for summary
judgment. His arguments on the Eighth Amendment deliberate indifference claim
against Norris, and the retaliation claims against Bohn and Shannon are new on
appeal. We can only review these new arguments for plain error. See Richison v.
The Opening Brief includes arguments involving the claims against Stephen 1
Scarbrough and Carl Voigtsberger. But those claims were dismissed in the § 1915A Screening Order. In his brief, Rhodes merely reiterates the allegations against these defendants from his complaint and does not address the district court’s reasons for dismissing them on screening. He has failed to explain why the district court’s decision was wrong. We therefore affirm the dismissal of these defendants. See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (stating that we do not address a district court’s reasoning when the appellant’s opening brief does not challenge it). 4 Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 5
Ernest Grp., Inc., 634 F.3d 1123, 1128, 1130 (10th Cir. 2011). But if a party does
not argue for plain-error review of the new arguments, that party waives appellate
review of them. See id. at 1130-31. This rule applies to pro se litigants, as well as to
counseled parties. See Garrett, 425 F.3d at 840 (“[T]his court has repeatedly insisted
that pro se parties follow the same rules of procedure that govern other litigants.”
(internal quotation marks omitted)). We conclude these arguments are waived
because Rhodes failed to address whether his summary-judgment arguments satisfy
the plain-error doctrine.
Even if Rhodes had not waived these arguments, we would not consider them
because he never explains why the district court’s reason for granting summary
judgment was wrong. See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011).
The argument section in Rhodes’s opening brief appears to be directly copied from
the Amended Complaint. Thus, it falls short of its primary function as he fails to
show the district court committed any reversible error. See Nixon v. City & Cnty. of
Denver, 784 F.3d 1364, 1369 (10th Cir. 2015) (affirming dismissal of claim where
appellant’s brief failed to challenge the basis for the district court’s ruling). A brief
statement of the case accompanied by an argument section that has been copied from
the Amended Complaint is not a “substitute for legal argument.” Id. at 1366. Merely
listing issues and authority, with no citation to the record and no analysis, is not
“adequate briefing.” Garrett, 425 F.3d at 841 (internal quotation marks omitted).
“The first task of an appellant is to explain to us why the district court’s decision was
wrong,” Nixon, 784 F.3d at 1366, and merely presenting what was stated in the
5 Appellate Case: 24-8086 Document: 19-1 Date Filed: 09/24/2025 Page: 6
Amended Complaint without more fails to achieve that objective, see Meek v. Martin,
74 F.4th 1223, 1276 (10th Cir. 2023) (“[P]resenting the exact same argument that the
district court rejected, without more, falls short of explaining to us why the district
court’s decision was wrong.” (brackets, emphasis, and internal quotation marks
omitted)).
III. Conclusion
Because Rhodes has failed to show any reversible error, we affirm the district
court’s judgment.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge