FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 22, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court JAMES RUDNICK,
Plaintiff - Appellant,
v. No. 18-1260 (D.C. No. 1:16-CV-02071-RM-KLM) RICK RAEMISCH; JOHN (D. Colo.) CHAPDELAINE; JENNIFER ANDERSON; NICOLE WILSON; ERIC HOFFMAN; BROWN; DAVID CUSTER; DARREN COREY; WILLIAM SHERWOOD,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McKAY, and LUCERO, Circuit Judges. _________________________________
James Rudnick appeals a district court order dismissing his 42 U.S.C. § 1983
complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Rudnick sued numerous individuals employed by the Colorado Department of
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Corrections (“CDOC”). He alleged defendants violated his constitutional rights by
restricting his access to the prison’s law library and his ability to print legal materials;
viewing, sharing, and threatening to delete his legal files; and confiscating his personal
eyeglasses and replacing them with state-issued eyeglasses.
From the 186 pages comprising the second amended complaint, the district court
discerned seven claims for relief: (1) blocked access to the courts in violation of the First
Amendment; (2) seizure of legal materials in violation of the Fourth Amendment;
(3) denial of due process and equal protection regarding access to legal files; (4) violation
of the right to confidentiality; (5) retaliation in violation of the First Amendment;
(6) deliberate indifference to medical needs; and (7) unconstitutional policies concerning
administrative remedies.
Acting under 28 U.S.C. § 1915(e)(2)(B)(i), the district court sua sponte dismissed
various defendants against whom there were no allegations of personal participation, and
dismissed claims for monetary damages against other defendants sued in their official
capacities. It also denied Rudnick’s motion for injunctive relief. In an interlocutory
appeal, we affirmed the injunction ruling. See Rudnick v. Raemisch, 731 F. App’x 753,
756 (10th Cir. 2018) (unpublished).
The remaining defendants moved to dismiss in the district court. A magistrate
judge recommended Rudnick’s claims be dismissed because he failed to allege a
plausible constitutional violation and defendants were entitled to qualified immunity.
Over Rudnick’s objections, the district court accepted that recommendation and entered
judgment in defendants’ favor. Rudnick now appeals.
2 II
We review de novo the grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6)
due to qualified immunity. Denver Justice & Peace Comm., Inc. v. City of Golden, 405
F.3d 923, 927 (10th Cir. 2005). “To survive a motion to dismiss based on qualified
immunity, the plaintiff must allege sufficient facts that show—when taken as true—the
defendant plausibly violated his constitutional rights, which were clearly established at
the time of violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
Rudnick argues that dismissal was inappropriate because his claims were
supported by the weight of the evidence and because the district court did not consider all
his filings cumulatively. On a Rule 12(b)(6) motion, however, the focus of the judicial
inquiry is on the complaint’s factual allegations. See SEC v. Shields, 744 F.3d 633, 640
(10th Cir. 2014). A district court may consider “documents that the complaint
incorporates by reference” and “documents referred to in the complaint if the documents
are central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (quotation omitted).
But Rudnick does not explain how any specific document he filed supports the
plausibility of any particular claim for relief. Although we liberally construe a pro se
litigant’s filings, we nevertheless require a pro se litigant to provide “succinct, clear and
accurate” arguments “with citations to the authorities and parts of the record on which
[he] relies.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir.
2005) (quotation omitted). We may not “serv[e] as the litigant’s attorney in constructing
arguments and searching the record.” Id. at 840.
3 Rudnick contends the district court erred by deciding the motion to dismiss
without a hearing. But a hearing on a motion to dismiss is not required. See Steele v.
Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199, 215 (2007). To the extent Rudnick asserts that
his right to a jury trial forecloses a motion to dismiss, he is mistaken. See Smith v.
Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997). Rudnick further argues the district court
erred by failing to include in its ruling the facts and law cited in his injunction appeal and
by construing his complaint as containing seven claims rather than five claims. But he
again fails to explain how these points bear on the plausibility of any of his claims for
relief.
On the merits, Rudnick argues the deprivation of proper eyeglasses violates the
Eighth Amendment. He is correct that “the removal of [an inmate’s] prescription
eyeglasses” is constitutionally problematic. Mitchell v. Maynard, 80 F.3d 1433, 1443
(10th Cir. 1996). But Rudnick alleged he was given state-issued eyeglasses that matched
a prior prescription, and he was given the opportunity for an eye exam and new state-
issued eyeglasses within one year. These allegations do not support a plausible deliberate
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 22, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court JAMES RUDNICK,
Plaintiff - Appellant,
v. No. 18-1260 (D.C. No. 1:16-CV-02071-RM-KLM) RICK RAEMISCH; JOHN (D. Colo.) CHAPDELAINE; JENNIFER ANDERSON; NICOLE WILSON; ERIC HOFFMAN; BROWN; DAVID CUSTER; DARREN COREY; WILLIAM SHERWOOD,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McKAY, and LUCERO, Circuit Judges. _________________________________
James Rudnick appeals a district court order dismissing his 42 U.S.C. § 1983
complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Rudnick sued numerous individuals employed by the Colorado Department of
* 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. Corrections (“CDOC”). He alleged defendants violated his constitutional rights by
restricting his access to the prison’s law library and his ability to print legal materials;
viewing, sharing, and threatening to delete his legal files; and confiscating his personal
eyeglasses and replacing them with state-issued eyeglasses.
From the 186 pages comprising the second amended complaint, the district court
discerned seven claims for relief: (1) blocked access to the courts in violation of the First
Amendment; (2) seizure of legal materials in violation of the Fourth Amendment;
(3) denial of due process and equal protection regarding access to legal files; (4) violation
of the right to confidentiality; (5) retaliation in violation of the First Amendment;
(6) deliberate indifference to medical needs; and (7) unconstitutional policies concerning
administrative remedies.
Acting under 28 U.S.C. § 1915(e)(2)(B)(i), the district court sua sponte dismissed
various defendants against whom there were no allegations of personal participation, and
dismissed claims for monetary damages against other defendants sued in their official
capacities. It also denied Rudnick’s motion for injunctive relief. In an interlocutory
appeal, we affirmed the injunction ruling. See Rudnick v. Raemisch, 731 F. App’x 753,
756 (10th Cir. 2018) (unpublished).
The remaining defendants moved to dismiss in the district court. A magistrate
judge recommended Rudnick’s claims be dismissed because he failed to allege a
plausible constitutional violation and defendants were entitled to qualified immunity.
Over Rudnick’s objections, the district court accepted that recommendation and entered
judgment in defendants’ favor. Rudnick now appeals.
2 II
We review de novo the grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6)
due to qualified immunity. Denver Justice & Peace Comm., Inc. v. City of Golden, 405
F.3d 923, 927 (10th Cir. 2005). “To survive a motion to dismiss based on qualified
immunity, the plaintiff must allege sufficient facts that show—when taken as true—the
defendant plausibly violated his constitutional rights, which were clearly established at
the time of violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
Rudnick argues that dismissal was inappropriate because his claims were
supported by the weight of the evidence and because the district court did not consider all
his filings cumulatively. On a Rule 12(b)(6) motion, however, the focus of the judicial
inquiry is on the complaint’s factual allegations. See SEC v. Shields, 744 F.3d 633, 640
(10th Cir. 2014). A district court may consider “documents that the complaint
incorporates by reference” and “documents referred to in the complaint if the documents
are central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (quotation omitted).
But Rudnick does not explain how any specific document he filed supports the
plausibility of any particular claim for relief. Although we liberally construe a pro se
litigant’s filings, we nevertheless require a pro se litigant to provide “succinct, clear and
accurate” arguments “with citations to the authorities and parts of the record on which
[he] relies.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840-41 (10th Cir.
2005) (quotation omitted). We may not “serv[e] as the litigant’s attorney in constructing
arguments and searching the record.” Id. at 840.
3 Rudnick contends the district court erred by deciding the motion to dismiss
without a hearing. But a hearing on a motion to dismiss is not required. See Steele v.
Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199, 215 (2007). To the extent Rudnick asserts that
his right to a jury trial forecloses a motion to dismiss, he is mistaken. See Smith v.
Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997). Rudnick further argues the district court
erred by failing to include in its ruling the facts and law cited in his injunction appeal and
by construing his complaint as containing seven claims rather than five claims. But he
again fails to explain how these points bear on the plausibility of any of his claims for
relief.
On the merits, Rudnick argues the deprivation of proper eyeglasses violates the
Eighth Amendment. He is correct that “the removal of [an inmate’s] prescription
eyeglasses” is constitutionally problematic. Mitchell v. Maynard, 80 F.3d 1433, 1443
(10th Cir. 1996). But Rudnick alleged he was given state-issued eyeglasses that matched
a prior prescription, and he was given the opportunity for an eye exam and new state-
issued eyeglasses within one year. These allegations do not support a plausible deliberate
indifference claim, which requires that a prison official “knows of and disregards an
excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Next, Rudnick contests the dismissal of his claim that CDOC grievance
procedures violate his procedural due process rights. As the magistrate judge correctly
pointed out, however, prisoners lack a liberty interest in grievance procedures. See
Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001); see also Geiger v. Jowers, 404
4 F.3d 371, 374 (5th Cir. 2005) (per curiam). Accordingly, Rudnick’s procedural due
process claim fails.
Finally, Rudnick challenges the dismissal of his access-to-courts claim. But a
plausible access-to-courts claim requires a prisoner demonstrate he “was frustrated or
impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or
his conditions of confinement.” Gee, 627 F.3d at 1191. Rudnick fails to carry this
burden.
III
AFFIRMED. Because Rudnick fails to advance “a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal,” DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we DENY his motion to proceed
in forma pauperis, and we direct him to make full and immediate payment of all
outstanding appellate filing fees.1
Entered for the Court
Carlos F. Lucero Circuit Judge
1 To the extent Rudnick’s May 2, 2019 “Demand for Order” requests waiving the appellate filing fee due to the expenses of his multiple other court cases, the request is denied. See 28 U.S.C. § 1915(b)(1). 5