Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 4, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DONALD LEE ROLLE,
Plaintiff - Appellant,
v. No. 22-8048 (D.C. No. 1:20-CV-00130-NDF) WYOMING DEPARTMENT OF (D. Wyo.) CORRECTIONS; CORIZON CORP; ROBERT LAMPERT, Wyoming Department of Corrections Director in his official capacity; MICHAEL PACHECO, Wyoming Department of Corrections State Penitentiary Warden in his official capacity; MARY MAYER, Wyoming Department of Corrections State Penitentiary Sergeant in her official capacity; DENICE DILLON, Wyoming Department of Corrections State Penitentiary Grievance Manager in her official capacity; SANDRA GALVIN, Wyoming Department of Corrections State Penitentiary Corporal in her official capacity; KURT JOHNSON, Corizon Corp Physician in his official capacity; SUSANNE LEVENE, Corizon Corp Physician in her official capacity; LEVI BRINKERHOFF, Corizon Corp Dentist in his official capacity; ILENE CHOAL, Corizon Corp Dental Care Manager in her official capacity; EWA PODLACHA, Corizon Corp HAS in her official capacity; BETH MATHEWS, Wyoming Department of Corrections Health Services Program Specialist in her official capacity; PAUL MARTIN, Wyoming Department of Corrections Health Services Program Specialist in his official capacity; MAJ LOCKWOOD, Wyoming Department of Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 2
Corrections State Penitentiary Correctional Officer in his official capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, EID, and CARSON, Circuit Judges. _________________________________
Donald Rolle, a Wyoming prisoner appearing pro se, filed this civil rights
action seeking relief against the Wyoming Department of Corrections (WDOC),
several WDOC employees, Corizon Corporation (Corizon), and several Corizon
employees for various alleged constitutional violations. The district court dismissed
some claims and granted summary judgment in favor of defendants on the others.
Mr. Rolle now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm.
I
At all times relevant to this lawsuit, Mr. Rolle was in the custody of WDOC
and confined at the Wyoming State Penitentiary (WSP) in Rawlins, Wyoming.
* 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: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 3
Corizon is a private entity that contracts with WDOC to provide medical and dental
services to WDOC inmates.
A. Dental and medical care
In May 2018, Levi Brinkerhoff, a dentist employed by Corizon, performed a
dental evaluation of Mr. Rolle and noted recurrent decay in tooth number 29.
Dr. Brinkerhoff saw Mr. Rolle for a follow-up visit in August 2018 and performed
repair work on that tooth.
Mr. Rolle experienced pain following the repair work, and Dr. Brinkerhoff saw
him a week later. Dr. Brinkerhoff recommended and ultimately performed an
extraction of tooth number 29. Following the extraction, Dr. Brinkerhoff prescribed
antibiotic injections, but Mr. Rolle refused to take them.
Over the course of the next ten months, Mr. Rolle continued to experience pain
and swelling where the tooth was removed, and also developed a rash and boils on
his body. During that time period, Dr. Brinkerhoff saw Mr. Rolle at least eight times.
Mr. Rolle was also seen by Dr. Kurt Johnson, Corizon’s Regional Medical Director,
Dr. Ilene Choal, Corizon’s Dental Care Manager, Dr. Susanne Levene, a
Corizon-employed physician, and Brandon Bennion, a nurse practitioner at the
Central Wyoming Skin Clinic. Collectively, these providers concluded Mr. Rolle
developed an oral infection likely due to a needle stick administered during the tooth
extraction. The providers also concluded Mr. Rolle’s skin issues were largely
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unrelated to the tooth infection or the oral infection. The oral infection was treated
with antibiotics and the skin issues were treated with topical prescription medication.
B. Non-commissary shoes and stockings
In December 2018, Dr. Levene approved Mr. Rolle’s request to purchase shoes
from an outside vendor. In January 2019, however, Dr. Levene became aware of a
new policy, implemented by Michael Pacheco, the warden at WSP, prohibiting
inmates from purchasing their own shoes from outside vendors unless the shoes were
deemed medically necessary by a medical provider. Mr. Rolle was subsequently
offered, but declined, an appointment with a podiatrist. He later submitted a “special
needs-form” requesting to “purchase medical necessary shoes.” R. vol. 3 at 47.
Frederic Lockwood, a correctional officer at WSP, denied that special needs request.
In March 2019, Dr. Levene approved Mr. Rolle’s requests for knee-high
anti-embolism stockings.
C. Cell inspections and damage to a television
Mr. Rolle was housed in the K Unit during the summer of 2019. At that time,
Sandra Galvin worked as the K Unit Supervisor. Mr. Rolle alleges that in July 2019,
Ms. Galvin forced him, by threat of “write up and going to [the] hole,” to be seen in
the medical clinic by Dr. Levene. R. vol. 4 at 229. Mr. Rolle went to the medical
clinic, but refused to talk to Dr. Levene.
Mr. Rolle wrote to Mr. Lockwood, Ms. Galvin’s supervisor, and complained
about the incident. Mr. Rolle subsequently met with Mr. Lockwood and Ms. Galvin
4 Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 5
on July 19, 2019. During the meeting, Mr. Lockwood allegedly told Ms. Galvin her
conduct had been improper.
Following the meeting, Ms. Galvin allegedly began taking random
commissary-purchased items from Mr. Rolle’s cell during daily cell inspections.
When Mr. Rolle questioned her about the items, Ms. Galvin allegedly stated the items
were contraband. On other unspecified dates, Ms. Galvin allegedly ordered the
officers who inspected Mr. Rolle’s cell to touch trash, dirty items, dirty clothes, and
electronics without changing their gloves.
On two occasions, once in September 2019 and later in October 2019,
Mr. Rolle returned to his cell to find his television had been knocked over and other
items had been moved during cell inspections. Mr. Rolle alleges Ms. Galvin was
responsible for the television being knocked over and other items being moved.
Following the October 2019 search, Mr. Rolle complained to Ms. Galvin.
Ms. Galvin later came and confiscated Mr. Rolle’s television.
Ms. Galvin wrote a staff report regarding the incident and noted that “[o]n a
daily basis Inmate Rolle is complaining about cell inspections being done and he
is constantly telling officer’s [sic] what inspections are and what searches are.”
R. vol. 5 at 226 (internal quotation marks omitted).
D. Living will
In March 2020, Mr. Rolle “attempted to obtain any WDOC forms for the
purpose of filing a Living Will and was denied and found that WDOC does not have
any established form in their system for this procedure.” R. vol. 3 at 60. Mr. Rolle
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then “created his own Living Will” and attempted to file it “in the appropriate
central, medical and Chaplin’s [sic] files” with WDOC. Id. Mr. Pacheco and other
WDOC officials refused to file Mr. Rolle’s living will in the WDOC document filing
system.
II
In July 2020, Mr. Rolle filed a pro se civil rights action under 42 U.S.C.
§ 1983 complaining about the above-described incidents. He named as defendants
WDOC, eight WDOC employees, Corizon, and five Corizon employees.
Shortly after filing suit, Mr. Rolle moved to recuse the district court judge.
That motion was denied.
Mr. Rolle twice amended his complaint. In the operative second amended
complaint, Mr. Rolle asserted, in relevant part, Eighth, Fourteenth, and First
Amendment claims related to inadequate and delayed medical treatment for a tooth
infection, the denial of medically necessary shoes and anti-embolism socks,
retaliation for the filing of grievances, damage to his television during a cell search,
and his inability to file his living will in the prison’s internal files. The district court
dismissed some claims as insufficiently pled, for failure to state a claim, or on the
basis of Eleventh Amendment and qualified immunity. The district court later
granted summary judgment in favor of defendants on the remaining claims and
entered final judgment in the case.
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Mr. Rolle now appeals.
III
A. Denial of motion to recuse
We begin our review with the denial of Mr. Rolle’s motion to recuse. In his
motion, Mr. Rolle argued the district judge should recuse herself because she was
married to “the ex-governor of Wyoming,” who had previously “made direct quotes
to multimedia sources . . . voicing his support of the death penalty in a 2007-2008
case” in which Mr. Rolle was a defendant. Supp. R. at 7. The district judge
concluded these circumstances did not warrant her recusal under 28 U.S.C. § 455(a).
“We review for abuse of discretion the denial of a motion to disqualify.”
See Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228,
1239 (10th Cir. 2020). “A district judge ‘shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.’” Id. (quoting § 455(a)).
Thus, “we ask whether a reasonable person, fully informed of the relevant facts,
would question the judge’s impartiality.” Id. (internal quotation marks omitted).
We conclude the district judge did not abuse her discretion in determining that
any prior statements made by her husband regarding a previous criminal case
involving Mr. Rolle did “not give rise to a reasonable inference of impartiality on
[her] part.” Supp. R. at 10. As we noted in Barnett, “[i]n present-day society we do
not treat a married couple as single-minded on public issues.” 956 F.3d at 1241.
Thus, a reasonable observer would not impute the comments made by the district
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judge’s spouse to her, nor would they interpret those past comments as giving rise to
bias on the part of the district judge.
B. The dismissal of certain claims
We next turn to the order dismissing certain claims asserted in the second
amended complaint.
1) Claims against Corizon
The first two claims—regarding the alleged failure to treat Mr. Rolle for the
tooth infection and the alleged denial of medically-necessary shoes and stockings—
implicated Corizon. Mr. Rolle alleged Corizon officials failed to adequately train
and supervise subordinates, failed to develop effective review and reporting of policy
violations, failed to discipline malfeasant employees, failed to verify underlying
facts, and declined to confirm inferences of risk that were strongly suspected to exist.
Corizon argued, and the district court agreed, that the second amended complaint
failed to allege any facts indicating that Corizon had an unlawful policy or practice
that led to a constitutional violation that injured Mr. Rolle.
We review de novo a district court’s dismissal of a complaint for failure to
state a claim. Silver v. City of Albuquerque, 134 F.4th 1130, 1133 (10th Cir. 2025).
“In doing so, we ask whether the complaint contains sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal
quotation marks and brackets omitted).
As the district court correctly noted, a private corporation performing a
governmental function “cannot be held liable under § 1983 on a respondeat superior
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theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (addressing
municipal liability); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003)
(applying same principles to claims against private corporations). Instead, the
plaintiff typically must show that an official “policy was enacted or maintained with
deliberate indifference to an almost inevitable constitutional injury.” Schneider v.
City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013). Where, as
here, a plaintiff attempts to proceed on a “‘failure to train’ theory of liability, . . . a
pattern of similar constitutional violations by untrained employees is ordinarily
necessary” to impose municipal or corporate liability. Waller v. City & Cnty. of
Denver, 932 F.3d 1277, 1285 (10th Cir. 2019). In other words, failure to train or
supervise can “constitute an official policy” only “if the plaintiff meets the stringent
deliberate indifference standard of fault.” Id. at 1284 (internal quotation marks
omitted).
After reviewing the second amended complaint, we agree with the district
court that Mr. Rolle failed to allege any pattern of similar constitutional violations by
untrained Corizon employees. We therefore conclude the district court did not err in
dismissing Mr. Rolle’s claims against Corizon.
2) Claims against WDOC
Claims One, Two, and Four (which involved the refusal to file Mr. Rolle’s
living will) asserted similar failure-to-train claims against WDOC. The district court
concluded that, like Mr. Rolle’s claims against Corizon, these claims were
conclusory and subject to dismissal.
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We agree. As the district court noted, the second amended complaint
“provides no specific allegations, nor do the allegations give rise to any inference
that the alleged deficient supervisory practices were so gross or so pervasive that they
can justifiably be said to represent [WDOC] policy or custom.” R. vol. 3 at 138.
3) Claims of supervisory failures or deficiencies on the part of individual defendants
The second amended complaint asserted nearly identical claims of “fail[ure] to
adequately train and supervise subordinates,” “fail[ure] to develop effective review
and reporting of policy violations,” “fail[ure] to discipline malfeasant employees,”
“refus[al] to verify underlying facts,” and “declin[ation] to confirm inferences of risk
that w[ere] strongly suspected to exist” against nine individual defendants who
worked for either WDOC or Corizon.1 R. vol. 3 at 137 (internal quotation marks
For any of these allegations to give rise to a valid § 1983 claim, Mr. Rolle
would have had to allege, in part, that the named defendants were “policymaking
officials” or that the alleged practices were “so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011).
He also would have had to allege that the named defendants acted with deliberate
1 The individual defendants included Dr. Choal (Claim One), Ms. Podlacha (Claims One and Two), Ms. Mathews (Claim One), Mr. Martin (Claim One), Ms. Mayer (Claims One and Two), Mr. Lockwood (Claim Two), Ms. Dillon (Claims Three and Four), Mr. Pacheco (Claims One through Four), and Mr. Lampert (Claims One through Four). 10 Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 11
indifference to the known or obvious consequences of their actions or inactions. See
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997).
As the district court concluded, however, Mr. Rolle’s allegations fell short.
We agree with the district court that Mr. Rolle “offer[ed] no specific allegations
regarding any supervisory deficiencies” on the part of these defendants, “much less
any allegations describing how WDOC or Corizon employee supervision or failure to
discipline was inadequate, or how any potential inadequacy caused [him] injury.”
R. vol. 3 at 138-39. In addition, Mr. Rolle failed to sufficiently allege the defendants
acted with deliberate indifference. Lastly, to the extent Mr. Rolle’s allegations of
“failure to verify facts and confirm inferences of risk” could be construed as a
failure-to-investigate theory of liability, we agree with the district court that he
“provide[d] no specific allegations of WDOC’s or Corizon’s allegedly inadequate
investigation of, or inquiry into the facts or risks.” Id. at 139.
4) Claims One and Two against Ms. Mathews
Claim One alleged that Ms. Mathews, an accreditation/medical compliance
specialist employed by WDOC, “had full knowledge of” Mr. Rolle’s “serious
medical conditions,” but lied to Mr. Rolle’s family, “false[ly] report[ed] delayed
adequate treatment,” and “refused to provide a suitable . . . post-deprivation remedy.”
R. vol. 3 at 43. Ms. Mathews moved to dismiss the claim, arguing there were “no
allegations or inferences supporting any causal connection between the so-called lie
or false report and the alleged violation of [Mr. Rolle’s] Eighth and Fourteenth
Amendment[]” rights. Id. at 140. The district court granted Ms. Mathews’ motion,
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noting Mr. “Rolle offer[ed] no cogent allegation or argument by response brief or
otherwise to support his allegation that whatever lie or false report he believe[d]
[Ms.] Mathews made caused or contributed to his alleged constitutional violations.”
Id. at 141. The district court also rejected Mr. Rolle’s arguments in his response
brief that Ms. Mathews was somehow responsible for the constitutional violation
alleged in Count Two of the second amended complaint (involving the
non-commissary shoes and anti-embolism stockings).
After reviewing the appellate briefs and the record on appeal, we find no error
on the part of the district court and therefore affirm the district court’s dismissal of
the claims against Ms. Mathews.
5) Claim Two against Mr. Lockwood and Mr. Pacheco
In Claim Two, Mr. Rolle alleged that Mr. Lockwood and Mr. Pacheco, both
WDOC employees, denied his request to purchase non-commissary shoes and
anti-embolism stockings and also interfered with his treatment by convincing medical
providers to change their diagnoses. Mr. Lockwood and Mr. Pacheco moved to
dismiss and the district court granted their motion. The district court concluded
Mr. Rolle’s “general allegations” against Mr. Lockwood and Mr. Pacheco “fail[ed] to
state a claim that these State defendants knew of a serious medical condition and
acted with deliberate indifference in denying [his] request notwithstanding such
knowledge.” Id. at 142. The district court also concluded that “as to whether or if
either . . . defendant interfered with [Mr. Rolle’s] treatment, there [wa]s nothing to
indicate who did what, when and how.” Id.
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After reviewing the briefs and record on appeal, we agree with the district
court’s analysis and affirm its decision to dismiss these claims against Mr. Lockwood
and Mr. Pacheco.
6) Claim Three – cell searches and damaged television
Claim Three alleged that Ms. Galvin violated Mr. Rolle’s rights by searching
his cell on a daily basis and damaging or removing his personal property, all in
retaliation for him complaining about her to her supervisor, Mr. Lockwood.
Ms. Galvin moved to dismiss Claim Three, arguing Mr. Rolle “fail[ed] to allege facts
sufficient to show that ‘but for’ [her] retaliatory motive, the searches would not have
happened.” Id. at 143. Ms. Galvin also argued that the one alleged instance of a cell
search and a damaged television failed to show retaliatory motive on her part. The
district court dismissed Claim Three against Ms. Galvin in her official capacity, but
concluded Claim Three otherwise “sufficiently pled” a claim against Ms. Galvin in
her individual capacity. Id.
We conclude the district court properly dismissed Claim Three to the extent it
was asserted against Ms. Galvin in her official capacity. As the district court aptly
noted, nothing in the second amended complaint could reasonably be read as alleging
Ms. Galvin was acting in her official capacity when she allegedly retaliated against
Mr. Rolle. Moreover, even if we were to assume Ms. Galvin was acting in her
official capacity, that would effectively amount to a claim against WDOC and, for
the reasons already discussed, we conclude Claim Three would have failed to state a
valid claim for relief against WDOC.
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7) Claim Four – living will
Claim Four alleged that Mr. Pacheco violated Mr. Rolle’s constitutional rights,
as well as his rights under the Patient Self-Determination Act (PSDA) and the
Religious Land Use and Institutionalized Persons Act (RLUIPA), by refusing to file
his living will in WDOC’s files. The district court concluded the claim failed to
allege a violation of Mr. Rolle’s First Amendment rights because there was no
allegation that Mr. Pacheco’s refusal substantially burdened Mr. Rolle’s “right to
practice Christianity, including his belief that life should not be artificially
extended.” Id. at 146. The district court therefore dismissed Mr. Rolle’s First
Amendment claim asserted under § 1983. The district court also concluded the
second amended complaint “fail[ed] to allege any deprivation of liberty without due
process.” Id. at 147. The district court in turn concluded the PSDA was inapplicable
because WSP was not a “provider of services” within the meaning of 42 U.S.C.
§ 1395cc(e). Id. Lastly, the district court concluded Mr. Rolle failed to state a claim
under the RLUIPA because he failed to allege that Mr. Pacheco’s actions placed a
substantial burden on his exercise of his religion.
Mr. Rolle does not seriously challenge the district court’s rulings on any of
these claims. We have also conducted our own independent review of the allegations
contained in Claim Four and agree entirely with the district court’s analysis.
Consequently, we affirm the district court’s rulings.
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C. The grant of summary judgment
That leaves the district court’s orders granting summary judgment in favor of
defendants on the remaining claims asserted in the second amended complaint. “We
review a district court’s grant of summary judgment de novo. In doing so, we stand
in the same shoes as the district court and must view the factual record and make
reasonable inferences therefrom in the light most favorable to the party opposing
summary judgment.” Johnson v. Sanders, 121 F.4th 80, 88 (10th Cir. 2024) (citation
and internal quotation marks omitted).
1) Claim One
Claim One alleged Dr. Brinkerhoff, Dr. Choal, Dr. Johnson, Dr. Levene, and
Ms. Podlacha violated Mr. Rolle’s Eighth Amendment rights. More specifically,
Claim One alleged that: (a) the dental and medical care Mr. Rolle received at WSP
led to a skin infection that was not appropriately or timely treated; (b) Mr. Rolle was
subjected to a forced medical encounter by two providers; and (c) Mr. Rolle was
denied the opportunity to order special non-commissary shoes and knee-high
stockings, which he asserts were medically necessary.
a) Dental and medical care
The district court granted summary judgment in favor of Dr. Brinkerhoff and
Dr. Johnson as to Mr. Rolle’s Eighth Amendment claims against them regarding their
provision of dental and medical care. In doing so, the district court concluded the
record was undisputed that these defendants provided “ongoing attention” to
Mr. Rolle’s “dental and medical needs.” R. vol. 5 at 247. It further noted that
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Mr. “Rolle provide[d] no basis for his opinion that Dr. Brinkerhoff’s care spread the
pre-existing infection, or that the infection spread from inside his mouth to his body,
or that either [Dr. Brinkerhoff or Dr. Johnson] ignored or mis-treated his
complaints.” Id. Lastly, the district court noted that “[w]hile [Mr. Rolle] disagree[d]
with the care and treatment he received from [Dr.] Brinkerhoff and [Dr.] Johnson,
disagreement d[id] not state a constitutional violation by” those defendants. Id.
The district court also granted summary judgment in favor of Dr. Choal as to
the same claim. The district court noted it was undisputed that Dr. “Choal saw
[Mr.] Rolle one time and diagnosed him as being in the healing stages of an
infection.” Id. at 248. The district court concluded Mr. Rolle’s “arguments against
[Dr.] Choal’s motion for summary judgment simply lump[ed] [Dr.] Choal in with his
complaints about [Dr.] Brinkerhoff and [Dr.] Johnson,” and that “[t]his [wa]s
insufficient to raise any dispute of fact or rebut [Dr.] Choal’s arguments.” Id.
As for Ms. Podlacha, the district court noted Mr. Rolle did “not advance any
facts or arguments” in response to her portion of the motion for summary judgment
and therefore “confessed this portion of the motion.” Id.
Lastly, the district court concluded Dr. Levene was entitled to summary
judgment as to Claim One because Mr. Rolle’s claims against her were “difficult to
discern” and, to the extent Mr. Rolle was “unhappy that the folliculitis diagnosis was
not communicated to [Mr.] Bennion,” there was no evidence Dr. Levene “had any
responsibility to communicate any records to [Mr.] Bennion (or that she refused to do
16 Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 17
so),” and that, in any event, Mr. Bennion “conducted h[is] own assessment” of
Mr. Rolle “and issued h[is] own diagnosis.” Id. at 249.
Mr. Rolle argues on appeal that the district court “applied a blanket bias to
[his] claim of deliberate indifference” against these defendants. Aplt. Br. at 14.
He also asserts, in conclusory fashion, that his “facts . . . met both the objective and
subjective analysis” necessary to state a valid Eighth Amendment claim. Id. Finally,
he argues that “Defendants were manipulating the medical records of actual
conditions and withholding medical facts and now the District Court is doing it for
the Defendants.” Id. at 4.
We reject these arguments as completely unsupported by any evidence in the
record or any legal authorities. There is no evidence whatsoever of bias on the part
of the district court in ruling on the defendants’ dispositive motions. As for
Mr. Rolle’s Eighth Amendment claims, our own independent review of the record
leads us to the same conclusions as the district court, i.e., there is no evidence that
would allow a reasonable finder of fact to conclude that defendants were deliberately
indifferent to Mr. Rolle’s serious medical needs. Consequently, we affirm the district
court’s grant of summary judgment on these claims.
b) Forced medical encounter
Mr. Rolle alleged Ms. Podlacha forced him to attend a medical appointment
with Dr. Levene in April 2018. The district court concluded Mr. Rolle failed to
exhaust his administrative remedies with respect to this claim and granted summary
judgment in favor of Ms. Podlacha and Dr. Levene.
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To the extent Mr. Rolle is appealing the district court’s decision,2 we find no
error. Like the district court, we have found no evidence in the record indicating that
Mr. Rolle filed a grievance complaining about the alleged forced medical encounter.
2) Claim Two - non-commissary shoes and TED stockings
Mr. Rolle alleged in Claim Two that Dr. Levene changed her medical
diagnosis in order to deny him the right to order non-commissary shoes. He also
alleged he was denied access to TED stockings or ACE wraps after May 2018.
The district court granted summary judgment in favor of Dr. Levene on this
claim. The district court noted it was unable to “locate any grievance requesting
TED hose or ace wraps” and thus concluded that Mr. Rolle failed to exhaust his
remedies for this part of his claim. As for the portion of the claim regarding
non-commissary shoes, the district court noted, in relevant part, that Mr. Rolle failed
to identify any record indicating “a physician . . . mandated special shoes as
medically necessary treatment for his condition, or that a lay person would easily
recognize the need for either a doctor’s attention to his lower left leg or ankle or the
need for special shoes.” R. vol. 5 at 251. The district court also noted Mr. Rolle
“refused to see a podiatrist” and “stated he didn’t want to see one.” Id. The district
court therefore concluded, based on “these undisputed facts,” that Mr. Rolle failed to
“establish deliberate indifference to a serious medical need by [Dr.] Levene.” Id.
2 At one point in his opening brief, Mr. Rolle asserts that “[t]he forced medical encounters are not part of [his] complaint,” but instead were “provided as facts that support” his other claims against “WDOC and Corizon.” Aplt. Br. at 3. 18 Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 19
Mr. Rolle discusses this claim in his opening appellate brief, but fails to offer
any arguments that would cause us to question the district court’s analysis of the
claim. Like the district court, we agree that Mr. Rolle has failed to present evidence
sufficient to allow a jury to find that Dr. Levene was deliberately indifferent to
Mr. Rolle’s serious medical needs.
3) Claim Three – cell searches and damage to property
In Claim Three, Mr. Rolle alleged that Ms. Galvin violated his First
Amendment rights by retaliating against him for complaining to her supervisor. He
alleged the retaliation included turning cell inspections into searches, damaging and
confiscating his television, and interfering with his prison jobs.
The district court concluded all but one of these allegations were unexhausted.
More specifically, the district court concluded “[t]he only [filed] grievance relating to
[Ms.] Galvin [wa]s the grievance about damage to [Mr.] Rolle’s television during a
cell inspection.” Id. at 229 (citing ECF 255-8 at 10).
The district court in turn concluded Ms. Galvin was entitled to qualified
immunity as to the single exhausted claim. The district court noted Mr. Rolle failed
to “identify any on-point Tenth Circuit authority which clearly establishe[d] that
[Ms.] Galvin’s action on October 23, 2019, which allegedly led to the damage and
confiscation of [Mr.] Rolle’s television, violated his First Amendment rights.” Id. at
230. The district court also concluded that “[c]ell searches and the potential for
damage to personal property [are] normal condition[s] of confinement.” Id. at 231.
As for the related Eighth Amendment claim (i.e., that Ms. Galvin violated
19 Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 20
Mr. Rolle’s Eight Amendment rights by damaging and confiscating his damaged
television, thereby depriving Mr. Rolle of the ordinary incidents of prison life), the
district court concluded Mr. Rolle failed to “identify any on-point Tenth Circuit
authority which clearly establishe[d] that he was deprived of a protected property
interest in the prison conditions setting when [Ms.] Galvin confiscated his damaged
television.” Id.
We agree with the district court’s qualified immunity analysis and affirm its
grant of summary judgment in favor of Ms. Galvin. See Tachias v. Sanders,
130 F.4th 836, 842 (10th Cir. 2025) (discussing application of qualified immunity in
the context of a First Amendment retaliation claim); Shero v. City of Grove, 510 F.3d
1196, 1203 (10th Cir. 2007) (discussing elements of a First Amendment retaliation
claim). Like the district court, we conclude Mr. Rolle has failed to show the law was
clearly established when Ms. Galvin allegedly acted. See Luethje v. Kyle, 131 F.4th
1179, 1187 (10th Cir. 2025) (“Asserting the affirmative defense of qualified
immunity creates a presumption that the defendant is immune from suit. A plaintiff
overcomes this presumption only by showing (1) the defendant’s actions violated a
constitutional right, and (2) the right was clearly established at the time of the
violation.” (citation and internal quotation marks omitted)).
20 Appellate Case: 22-8048 Document: 196-1 Date Filed: 08/04/2025 Page: 21
IV
The judgment of the district court is affirmed. Mr. Rolle’s motion to
supplement the record on appeal is granted. Mr. Rolle’s other pending motions are
denied as moot.
Entered for the Court
Allison H. Eid Circuit Judge