FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 4, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KEITH WRIGHT,
Plaintiff - Appellant,
v. No. 18-6135 (D.C. No. 5:18-CV-00158-D) FNU PETTY; CORRECTIONAL (W.D. Okla.) CORPORATION OF AMERICA, INC.; DOES 1–25,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Proceeding pro se and in forma pauperis (IFP),1 California prisoner Keith
Wright brought this personal-injury action against (1) the Correctional Corporation of
America (CCA) and (2) CCA employee Correctional Officer Petty (collectively, the
* After examining the brief and appellate record, this panel has determined unanimously that oral argument wouldn’t 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 isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Because Wright proceeds pro se, we liberally construe his filings. See Eldridge v. Berkebile, 791 F.3d 1239, 1243 n.4 (10th Cir. 2015). But we won’t act as his advocate. See id. defendants).2 Specifically, Wright alleged that he suffered an injury when—as a
result of Petty’s failure to exercise due care—a heavy steel door closed on Wright’s
foot.
Upon the recommendation of a magistrate judge, the district court ruled that
Wright’s claims were untimely and dismissed his complaint for failure to state a
claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Wright appeals. For the
reasons discussed below, we affirm.
Background
Wright suffered the underlying injury to his foot on July 23, 2014. But he
didn’t bring his claims until more than three years later. Thus, the magistrate judge
who screened Wright’s February 16, 2018 complaint noted that his claims appeared
to be time-barred and ordered Wright to show cause why the court shouldn’t dismiss
his complaint on that basis. See §§ 1915(e)(2)(B); 1915A(a)–(b)(1). When Wright
failed to respond to the show-cause order, the magistrate judge concluded that
Wright’s claims were untimely under Oklahoma law and recommended dismissing
his complaint.3
Wright timely objected to the magistrate judge’s recommendation, arguing that
he was entitled to equitable tolling because—according to him—the defendants failed
to prepare and provide a timely injury report. The district court rejected this
2 In addition to CCA and Petty, the complaint’s caption also lists “Does 1 to 25.” R. 4. But the body of the complaint makes no mention of these additional defendants. Accordingly, we do not address them further. 3 Wright was incarcerated in Oklahoma at the time of his injury. 2 argument, reasoning that (1) as of the date of his injury, Wright “had all the
information he needed to submit a timely claim, notwithstanding the absence of a
formal [injury] report” and (2) the defendants’ failure to prepare and provide a timely
injury report didn’t “constitute an ‘extraordinary circumstance’ that prevented
[Wright] from timely submitting his claim.” R. 45 (quoting Holland v. Florida, 560
U.S. 631, 649 (2010)). Thus, the district court adopted the magistrate judge’s
recommendation, dismissed Wright’s complaint for failure to state a claim, and
entered judgment in favor of the defendants. Wright appeals.
Analysis
On appeal, Wright advances multiple challenges to both the magistrate judge’s
recommendation and the district court’s order adopting that recommendation. Except
where otherwise noted, our review is de novo. See Young v. Davis, 554 F.3d 1254,
1256 (10th Cir. 2009).
Wright first asserts that the magistrate judge erred in (1) sua sponte raising the
question of timeliness and (2) applying Oklahoma law—rather than Maryland,
Tennessee, or California law—to determine whether Wright’s claims were time-
barred. But Wright didn’t advance either of these specific arguments in his objections
to the magistrate judge’s recommendation. Thus, we decline to consider them. See
Fed. R. Civ. P. 72 (“Within 14 days after being served with a copy of the [magistrate
judge’s recommendation], a party may serve and file specific written objections to
the proposed findings and recommendations.” (emphasis added)); Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991) (explaining that under firm-waiver rule,
3 failure to raise objection to magistrate judge’s recommendation “waives appellate
review of both factual and legal questions”).
Next, Wright asserts that the district court erred in “refus[ing] to consider” his
equitable-tolling argument. Aplt. Br. 4. Yet we see no indication that the district
court failed—let alone actively refused—to consider Wright’s argument. On the
contrary, the record reflects that the district court expressly addressed and rejected
Wright’s assertion that he was entitled to equitable tolling based on the defendants’
alleged failure to timely prepare and provide an injury report. And because the
district court didn’t refuse to consider Wright’s argument, it necessarily didn’t err in
that respect.
Finally, Wright repeatedly argues that the district court abused its discretion in
refusing to allow him to amend his complaint to plead a retaliation claim. In support,
Wright provides nearly two full pages of argument—complete with citations to legal
authority—explaining his retaliation theory. But Wright never provided such
argument or authority to the district court. Instead, he raised the specter of
amendment in a single sentence that appeared at the tail end of his objections to the
magistrate judge’s recommendation.
To the extent Wright intended for this single sentence to serve as a request for
leave to amend his complaint, he fails to provide a record citation demonstrating the
district court ever ruled on that request. Cf. 10th Cir. Rule 28.1(A) (“For each issue
raised on appeal, all briefs must cite the precise references in the record where the
issue was raised and ruled on.” (emphasis added)). Indeed, Wright concedes that the
4 district court never even “acknowledge[d],” let alone ruled upon, his purported
request. Aplt. Br. 9. Under these circumstances, it appears that the district court may
well have been unaware of that request—an understandable oversight given Wright’s
failure to fully develop it below. Cf. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th
Cir.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 4, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KEITH WRIGHT,
Plaintiff - Appellant,
v. No. 18-6135 (D.C. No. 5:18-CV-00158-D) FNU PETTY; CORRECTIONAL (W.D. Okla.) CORPORATION OF AMERICA, INC.; DOES 1–25,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Proceeding pro se and in forma pauperis (IFP),1 California prisoner Keith
Wright brought this personal-injury action against (1) the Correctional Corporation of
America (CCA) and (2) CCA employee Correctional Officer Petty (collectively, the
* After examining the brief and appellate record, this panel has determined unanimously that oral argument wouldn’t 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 isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Because Wright proceeds pro se, we liberally construe his filings. See Eldridge v. Berkebile, 791 F.3d 1239, 1243 n.4 (10th Cir. 2015). But we won’t act as his advocate. See id. defendants).2 Specifically, Wright alleged that he suffered an injury when—as a
result of Petty’s failure to exercise due care—a heavy steel door closed on Wright’s
foot.
Upon the recommendation of a magistrate judge, the district court ruled that
Wright’s claims were untimely and dismissed his complaint for failure to state a
claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Wright appeals. For the
reasons discussed below, we affirm.
Background
Wright suffered the underlying injury to his foot on July 23, 2014. But he
didn’t bring his claims until more than three years later. Thus, the magistrate judge
who screened Wright’s February 16, 2018 complaint noted that his claims appeared
to be time-barred and ordered Wright to show cause why the court shouldn’t dismiss
his complaint on that basis. See §§ 1915(e)(2)(B); 1915A(a)–(b)(1). When Wright
failed to respond to the show-cause order, the magistrate judge concluded that
Wright’s claims were untimely under Oklahoma law and recommended dismissing
his complaint.3
Wright timely objected to the magistrate judge’s recommendation, arguing that
he was entitled to equitable tolling because—according to him—the defendants failed
to prepare and provide a timely injury report. The district court rejected this
2 In addition to CCA and Petty, the complaint’s caption also lists “Does 1 to 25.” R. 4. But the body of the complaint makes no mention of these additional defendants. Accordingly, we do not address them further. 3 Wright was incarcerated in Oklahoma at the time of his injury. 2 argument, reasoning that (1) as of the date of his injury, Wright “had all the
information he needed to submit a timely claim, notwithstanding the absence of a
formal [injury] report” and (2) the defendants’ failure to prepare and provide a timely
injury report didn’t “constitute an ‘extraordinary circumstance’ that prevented
[Wright] from timely submitting his claim.” R. 45 (quoting Holland v. Florida, 560
U.S. 631, 649 (2010)). Thus, the district court adopted the magistrate judge’s
recommendation, dismissed Wright’s complaint for failure to state a claim, and
entered judgment in favor of the defendants. Wright appeals.
Analysis
On appeal, Wright advances multiple challenges to both the magistrate judge’s
recommendation and the district court’s order adopting that recommendation. Except
where otherwise noted, our review is de novo. See Young v. Davis, 554 F.3d 1254,
1256 (10th Cir. 2009).
Wright first asserts that the magistrate judge erred in (1) sua sponte raising the
question of timeliness and (2) applying Oklahoma law—rather than Maryland,
Tennessee, or California law—to determine whether Wright’s claims were time-
barred. But Wright didn’t advance either of these specific arguments in his objections
to the magistrate judge’s recommendation. Thus, we decline to consider them. See
Fed. R. Civ. P. 72 (“Within 14 days after being served with a copy of the [magistrate
judge’s recommendation], a party may serve and file specific written objections to
the proposed findings and recommendations.” (emphasis added)); Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991) (explaining that under firm-waiver rule,
3 failure to raise objection to magistrate judge’s recommendation “waives appellate
review of both factual and legal questions”).
Next, Wright asserts that the district court erred in “refus[ing] to consider” his
equitable-tolling argument. Aplt. Br. 4. Yet we see no indication that the district
court failed—let alone actively refused—to consider Wright’s argument. On the
contrary, the record reflects that the district court expressly addressed and rejected
Wright’s assertion that he was entitled to equitable tolling based on the defendants’
alleged failure to timely prepare and provide an injury report. And because the
district court didn’t refuse to consider Wright’s argument, it necessarily didn’t err in
that respect.
Finally, Wright repeatedly argues that the district court abused its discretion in
refusing to allow him to amend his complaint to plead a retaliation claim. In support,
Wright provides nearly two full pages of argument—complete with citations to legal
authority—explaining his retaliation theory. But Wright never provided such
argument or authority to the district court. Instead, he raised the specter of
amendment in a single sentence that appeared at the tail end of his objections to the
magistrate judge’s recommendation.
To the extent Wright intended for this single sentence to serve as a request for
leave to amend his complaint, he fails to provide a record citation demonstrating the
district court ever ruled on that request. Cf. 10th Cir. Rule 28.1(A) (“For each issue
raised on appeal, all briefs must cite the precise references in the record where the
issue was raised and ruled on.” (emphasis added)). Indeed, Wright concedes that the
4 district court never even “acknowledge[d],” let alone ruled upon, his purported
request. Aplt. Br. 9. Under these circumstances, it appears that the district court may
well have been unaware of that request—an understandable oversight given Wright’s
failure to fully develop it below. Cf. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th
Cir. 1999) (“The task of sorting th[r]ough pro se pleadings is difficult at best . . . .”).
In short, the single, undeveloped sentence Wright included in his objections to
the magistrate judge’s recommendation didn’t constitute a motion for leave to amend.
See Calderon v. Kansas Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1187 (10th
Cir. 1999) (holding that a “single sentence, lacking a statement for the grounds for
amendment and dangling at the end of [appellant’s] memorandum, did not rise to the
level of a motion for leave to amend” and that motion for leave to amend was
therefore “never properly before” district court). And because a motion for leave to
amend was never actually before the district court, the district court didn’t abuse its
discretion in failing to grant Wright an opportunity to amend his complaint. See id.;
Hall v. Witteman, 584 F.3d 859, 868 (10th Cir. 2009) (noting that when litigant fails
to adequately apprise district court of basis for proposed amendment, district court
isn’t “required to recognize, let alone grant, a motion to amend”).
5 Conclusion
For the reasons discussed above, we affirm the district court’s order dismissing
Wright’s complaint for failure to state a claim. As a final matter, we grant Wright’s
motion to proceed IFP.
Entered for the Court
Nancy L. Moritz Circuit Judge