Chavez v. Perry

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 13, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

HENRY CHAVEZ,

Plaintiff - Appellant,

v. No. 04-2011
(D.C. No. CIV-00-92-WJ/LFG)
ROBERT PERRY, Secretary of (D. N.M.)
Corrections; JEFF SERNA,
Classification Bureau Chief; DONNA
M. MARTINEZ, Deputy
Classification Bureau Chief;
DONALD DORSEY, Warden,
Torrance County Detention Facility;
BILL PENNYCUFF, Chief of
Security; RAMIRO E. RODRIGUEZ,
Warden of Security; JOE R.
WILLIAMS, Senior Warden, Lea
County Correctional Facility;
PATRICK W. SNEDEKER, Warden of
Security; BARRY HERTZOG,
Warden of Segregation; JOHN/JANE
DOE, individually and in their official
capacities; DANIEL MITTON;
STEVE KIDD; BILLY RYE,

Defendants - Appellees.

ORDER AND JUDGMENT *

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.

Plaintiff Henry Chavez appeals from several orders culminating in the entry

of adverse judgments on all pertinent claims asserted in this prison civil rights

action. 1 We summarize the relevant factual allegations and procedural history and

then take up each challenged order, in turn, below. In some instances, we hold

that plaintiff has waived the objections advanced on appeal; in most instances,

though, we reach the merits of the issues raised and affirm for the reasons stated

in the consistently thorough and thoughtful orders entered throughout the course

of this extended litigation.

Factual Background

Plaintiff, a protective-custody inmate in the New Mexico prison system,

claims that defendants violated his Eighth Amendment guarantee against cruel

and unusual punishment and his Fourteenth Amendment right to due process in

1
Several claims not otherwise disposed of by the orders under review were
settled and dismissed with prejudice before plaintiff filed the notice of appeal.

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connection with his transfer to and confinement at various correctional facilities

where he was attacked by other inmates. 2
This unfortunate odyssey through New

Mexico’s correctional facilities began in 1997, when plaintiff was serving time at

Southern New Mexico Correctional Facility (Southern).

Plaintiff alleges that defendant Serna, as state Classification Bureau Chief,

approved his transfer from Southern to Western New Mexico Correctional Facility

(Western) for protective custody because of “enemies” he has throughout the New

Mexico prison system. He was assaulted by an inmate at Western in February

1998 (an incident for which he seeks no redress here), however, and was

recommended for return to Southern, then being reconstructed to house protective

custody inmates. He alleges defendant Serna approved the return to Southern as

well, but it was not carried out.

Instead of a transfer to Southern, Serna changed plaintiff’s paperwork to

reflect a transfer, in March 1998, to Torrance County Detention Facility (TCDF),

a private institution that Chavez claimed housed violent inmates and lacked

facilities or staff to securely house protective custody prisoners. As a result,

2
At points in his pleadings, plaintiff complains of a lack of access to prison
law library facilities. On sua sponte review, however, the district court dismissed
any access-to-courts claim for lack of any allegations regarding interference with
plaintiff’s preparation/filing of case materials actionable under Lewis v. Casey ,
518 U.S. 343 (1996). Although on appeal he continues to complain in passing of
limited access to prison libraries, he has not challenged the district court’s ruling
under Lewis . We therefore do not consider the matter further here.

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plaintiff was housed in a way that showcased his protective status and provided

no real protection from the general population. On several occasions, he

complained to defendants Dorsey and Pennycuff about harassing and threatening

behavior by inmates just outside the protective unit and asked that the unit be

moved to a more secure area at TCDF. He claims that adequate measures were

not taken in response to these complaints and requests.

On June 20, 1998, during a visit to the TCDF law library, plaintiff was

assaulted by inmates from the general prison population. He informed defendant

Rodriguez about the assault, requested an investigation of the incident, and asked

for additional security, such as posting an officer at the library during visits by

protective custody inmates. Rodriguez allegedly did not conduct an investigation

and failed to improve library security. Plaintiff’s effort to address library security

issues through the grievance procedure and by talking with defendant Pennycuff

were likewise fruitless.

On July 25, 1998, general population inmates again assaulted plaintiff in

the law library. In addition to inaction by defendants Rodriguez and Pennycuff,

plaintiff blames this attack on defendants Baca and Jaramillo, who he claims were

aware of protective custody inmates’ vulnerability to assault by the general prison

population but failed in their responsibility to ensure that the library was

monitored by an officer when protective custody prisoners were there. He also

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alleges that defendant Dorsey had ordered the library moved from a relatively safe

location in the education department to a main hallway accessible to all inmates at

TCDF, despite the risk this posed for protective custody prisoners.

In March and April 1998, plaintiff corresponded with defendants Serna and

Martinez (Serna’s assistant) about obtaining a transfer from TCDF to Southern.

Martinez initially told plaintiff he was approved for the transfer. But, on

August 1, 1998, after Serna and Martinez changed the relevant paperwork, he was

sent instead to Lea County Correctional Facility (LCCF), another private

institution with violent inmates that lacked facilities for housing protective

custody inmates. Plaintiff entered the general population and within days was

assaulted by another inmate. Two days later, he was moved to a new protective

custody pod that, situated in the middle of the general population space, again

showcased the status of the protective custody inmates. During the move, he was

assaulted by prison officers. The next day, he was assaulted by inmates from the

general population who had been allowed into the pod by prison officers assigned

to stand guard. Protective custody inmates walked to the cafeteria down halls

through the general population, and at meals had to check food for contamination

by poisonous chemicals from the kitchen, dangerous objects, and bodily fluids

added by general population inmates. Events at LCCF gave rise to claims that

were settled by the defendants associated with that facility. These events also,

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however, implicate defendants Serna and Martinez, who allegedly approved his

transfer there.

While touring LCCF sometime in August or September 1998, defendant

Martinez spoke with plaintiff about problems there. Plaintiff also sent a letter to

Serna again requesting a transfer to Southern for long term protective custody. A

month later, plaintiff was sent to Southern. Within two weeks, he was assaulted

again, this time by inmates that had recently been transferred from LCCF, where

they had learned of plaintiff’s protective custody status.

In January 1999, plaintiff’s security level dropped from medium to

minimum and he was told that he would have to be transferred to an appropriate

facility. He requested a transfer to Western, as it was a minimum security prison

that accommodated protective custody inmates. The request was approved by

Southern officials and recommended to defendant Serna for final approval. In the

end, however, he was transferred to Central New Mexico Correctional Facility

(Central), a medium security prison. Within weeks he was assaulted by inmates

who knew him to be a protective custody prisoner from LCCF. Shortly thereafter,

he was transferred to Western, where he was placed in administrative segregation

due to the presence of documented enemies there. In May 1999, he was

transferred back to Southern, where he was able to take advantage of recreational,

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educational, and work opportunities and did not have to worry about being

assaulted.

In September 1999, however, he was shipped with two hundred protective

custody inmates to LCCF, which he claims was still severely understaffed and did

not adequately secure protective custody prisoners from other violent inmates. He

was assaulted on the transport bus on the way to LCCF and then placed in a

housing unit where he was exposed to daily threats from those outside and denied

adequate recreational and educational opportunities. He sent a letter to defendant

Serna requesting a transfer back to Southern. Defendant Martinez replied that the

Classification Bureau was aware of his complaints and desire for a transfer, but

that he would remain at LCCF. Martinez assured him that she had told the

associate warden at LCCF to ensure that he was housed with inmates of the same

status. That direction was not carried out. He continues to be the object of insult,

humiliation, threats, and attempted violence all undeterred by LCCF staff (again,

who have settled the claims asserted against them).

Procedural Background

Plaintiff brought this suit against numerous defendants, who have naturally

been aggregated into groups. The district court referred to TCDF warden Dorsey,

security chief Pennycuff, and security warden Rodriguez, as “CCA defendants,”

because TCDF is owned by the Corrections Corporation of America. The court

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referred to TCDF officers Baca and Jaramillo, whom it discussed separately from

the CCA defendants given their distinct and limited role in the case (the single

instance of failing to assign a monitor to the library), as “John Doe defendants,”

in light of their generic designation in the caption of the initial pleadings. The

court discussed defendants Serna and Martinez together given the intrinsically

yoked claims asserted against them for the transfers they ordered/failed to order

in their role with the Classification Bureau. Defendant Perry, whose remote

connection to the case as state Secretary of Corrections is unique to him, was

treated separately. Finally, the LCCF officials, who as noted above have settled

with plaintiff, were referred to as “Wackenhut defendants,” because LCCF is

owned by Wackenhut Corrections Corporation.

The complaint asserted three claims. First, plaintiff claimed officers Serna

and Martinez violated his due process rights by failing to provide him “reasonable

notice and a committee hearing before forcing him back into any general

population at any correctional facility.” R. Vol. 1 doc. 1, at 23. Second, he

claimed his Eighth Amendment rights were violated when Serna and Martinez

transferred him to TCDF and LCCF with deliberate indifference to his safety and

when officials there acted with deliberate indifference in failing to provide

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personal protection and safe housing during his confinement. 3
Id. at 23-24.

Finally, he claimed the conduct of all defendants made them liable under state law

for the intentional infliction of emotional distress. Id. at 25.

The orders challenged on appeal were issued as follows. In April 2000,

Secretary Perry was dismissed from the case under 28 U.S.C. § 1915(e)(2) for

lack of factual allegations linking him to the claims asserted. In January 2001,

the district court issued two orders. One dismissed the Eighth Amendment claim

against officers Baca and Jaramillo, because their conduct evinced negligence

rather than the deliberate indifference required for a constitutional violation, and

dismissed the intentional infliction claim against all CCA defendants, because

none of their alleged conduct was extreme or outrageous enough to give rise to

liability under state law. The other order granted summary judgment to Serna and

Martinez on the Eighth Amendment claim, because plaintiff had not shown they

even knew of the risks to which he alleged they had been deliberately indifferent. 4

In November 2002, the court denied plaintiff’s motion to amend his complaint. In

3
Unlike the claims asserted against certain officers at LCCF, which have
been settled and do not concern us on this appeal, the claims asserted against
TCDF officials involve the failure to protect plaintiff from other inmates but do
not entail any violence committed by prison officers themselves.
4
In a third order issued at the same time, the court dismissed the due process
and intentional infliction claims against Serna and Martinez because plaintiff had
elected not to challenge the magistrate judge’s recommended disposition of these
claims. That order is not under review on this appeal.

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March 2003, the court dismissed the remaining Eighth Amendment claims against

the CCA defendants for failure to exhaust prison remedies. After plaintiff settled

with the Wackenhut defendants, he brought this appeal.

Plaintiff’s appellate brief is divided into five argument headings that do

not, however, match up one-for-one with the five orders under review. We will

address the arguments as plaintiff has set them out, though in some instances

using a different organizational format for our analysis under each.

I. Sua Sponte Dismissal of Claims against Secretary Perry, Dismissal
of Eighth Amendment Claim against Officers Baca and Jaramillo, and
Dismissal of Intentional Infliction Claim.

A. Secretary Perry

The complaint includes a single conclusory reference to Secretary Perry.

After noting plaintiff’s transfer back to LCCF in September 1999, the complaint

states, “[u]pon information and belief, Plaintiff alleges that Defendants Robert J.

Perry, Jeff Serna, and other [New Mexico Corrections Department] employees

approved this transfer.” R. Vol. 1 doc. 1, at 16. While other factual allegations

in the complaint give an indication of Serna’s role as Classification Bureau Chief

(and that of his assistant, Martinez) in authorizing inter-prison transfers generally

and the particular transfers in this case, nowhere does the complaint tie the state

Secretary of Corrections to inter-prison transfer decisions, let alone this transfer

to LCCF in particular. Similarly, while plaintiff alleged some facts touching on

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Serna’s and Martinez’s awareness of his complaints and requests regarding

placement in the state prison system, there is nothing in the pleadings to suggest

Secretary Perry had any knowledge of such matters.

In pro se cases as in others, “conclusory allegations without supporting

factual averments are insufficient to state a claim on which relief can be granted.”

Hall v. Bellmon , 935 F.2d 1106, 1110 (10 th Cir. 1991) (citing numerous cases).

And this court “will not supply additional factual allegations to round out a [pro

se] plaintiff’s complaint.” Whitney v. New Mexico , 113 F.3d 1170, 1173-74

(10 th Cir. 1997); see Dunn v. White , 880 F.2d 1188, 1197 (10 th Cir. 1989)

(“Although we must liberally construe [a pro se] plaintiff’s factual allegations

[under Haines v. Kerner , 404 U.S. 519, 520-21 (1972)], we will not supply

additional facts, nor will we construct a legal theory for plaintiff that assumes

facts that have not been pleaded.”). The district court did not err in dismissing

the claims asserted against Secretary Perry. We note that plaintiff subsequently

sought to file an amended complaint, one minor aspect of which was an effort to

assert a more substantial claim against Perry. The district court’s rejection of this

belated attempt to shore up and expand the pleadings is considered – and

affirmed – in a later part of this order and judgment.

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 B. TCDF Officers Baca and Jaramillo

The complaint alleges that officers Baca and Jaramillo “were responsible

for keeping the law library secure and were responsible for assigning an officer to

monitor the law library while protective custody inmates were there but failed to

do so.” R. Vol. 1 doc. 1, at 8. As the district court noted, however, there is no

claim made that the omission was intentional. Absent any factual allegation that

the failure to assign a library monitor reflected a deliberate course of action, the

claim asserted against Baca and Jaramillo involved nothing over and above the

neglect of a duty of care, i.e., negligence. The Supreme Court has stated on many

occasions and in various prison contexts that negligent, inadvertent, or accidental

nonfeasance will not support an Eighth Amendment claim. See, e.g. , Farmer v.

Brennan , 511 U.S. 825, 840 (1994); Wilson v. Seiter , 501 U.S. 294, 305 (1991);

Whitley v. Albers , 475 U.S. 312, 319 (1986); Estelle v. Gamble , 429 U.S. 97,

105-06 (1976). Plaintiff did allege that the defendants were aware of the risk

involved, see R. Vol. 1 doc. 1, at 8, but that does not address the critical legal

deficiency identified by the district court regarding the requisite character of the

action or omission taken in the face of the risk.

Plaintiff raises two additional objections on appeal, neither of which has

merit. First, he argues that because the district court did not dismiss his claims

against Baca and Jaramillo sua sponte under § 1915(e)(2) when it dismissed the

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case against Secretary Perry, the former were not thereafter subject to dismissal

for pleading deficiencies. This argument is based on a basic misunderstanding of

federal procedure. The absence of a sua sponte ruling on the legal insufficiency

of a claim signifies only that no decision on the point has been made; it is not an

affirmative, binding validation of the legal sufficiency of the pleading. Indeed, if

it were, in forma pauperis pleadings would be immune from attack by routine

adversarial motion under Fed. R. Civ. P. 12(b), a proposition belied by the most

basic case law.

Plaintiff’s second argument is that omission of Baca and Jaramillo from the

Rule 12(b) motion filed by the other CCA defendants precluded the magistrate

judge and district court from considering dismissal of the former in connection

with the motion. The problem this procedural scenario raises relates to plaintiff’s

notice of and opportunity to oppose the proposed dismissal of his claims against

Baca and Jaramillo. But such due process concerns are allayed where, as here,

the party adversely affected by a magistrate judge’s unanticipated consideration of

an issue subsequently had the opportunity to address it in objections to the

magistrate judge’s ensuing recommendation. See, e.g. , Dodd Ins. Servs., Inc. v.

Royal Ins. Co. of Am. , 935 F.2d 1152, 1160 (10 th Cir. 1991); Vanderberg v.

Donaldson , 259 F.3d 1321, 1324 (11 th Cir. 2001).

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 C. Intentional Infliction of Emotional Distress

Under New Mexico law, a claim for intentional infliction of emotional

distress (IIED) requires a showing that “(1) the conduct in question was extreme

and outrageous; (2) the conduct of the defendant was intentional or in reckless

disregard of the plaintiff; (3) the plaintiff’s mental distress was extreme and

severe; and (4) there is a causal connection between the defendant’s conduct and

the claimant’s mental distress.” Trujillo v. N. Rio Arriba Elec. Coop., Inc. , 41

P.3d 333, 342 (N.M. 2001) (quotation omitted). The requisite nature of the

conduct is captured in the following formulation: “‘so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to

be regarded as atrocious, and utterly intolerable in a civilized community.’” Id.

(quoting Restatement (Second) of Torts § 46 cmt. d.). First-line enforcement of

this restrictive formulation is entrusted to the trial court, which must initially

“determine[] as a matter of law whether conduct reasonably may be regarded as so

extreme and outrageous that it will permit recovery under the tort.” Padwa v.

Hadley , 981 P.2d 1234, 1237 (N.M. Ct. App. 1999) (following Restatement

(Second) of Torts § 46 cmt. h); see also Morales v. Reynolds , 97 P.3d 612, 617

(N.M. Ct. App. 2004) (explaining purpose of court’s pre-trial screening function

with respect to IIED claims). But, if “reasonable persons may differ on that

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question, it is for the jury to decide, subject to the oversight of the court.” Id.

(quotation omitted)

Here, the district court recited the proper standard and concluded that the

conduct alleged did not rise to the level required for an IIED claim. We agree.

We do not discount the seriousness of prison violence and it is important to keep

in mind that we are not considering whether the assaults plaintiff suffered at the

hands of other inmates are themselves intolerable – they are. The issue here is

whether the acts and omissions of defendants alleged in the complaint, which

allegedly fell short of what should or could have been done to prevent the

assaults, qualify as “extreme” and “outrageous” under the legal standards recited

above. 5 Plaintiff does not cite a single case in which an IIED claim was made out

on similar facts, nor have we found any. The cases on which he relies, involving

abusive conduct directed at the plaintiff in situations far removed from the

exigencies and turbulence unavoidable in prison life, are not relevant here. In our

view, the district court rightly concluded that New Mexico courts would not

recognize an IIED claim under the circumstances alleged in the complaint.

5
We are concerned only with Baca and Jaramillo, the CCA defendants, Serna
and Martinez, and Perry, none of whom allegedly assaulted plaintiff or purposely
assisted other inmates in doing so. Such conduct was alleged only with respect to
the Wackenhut defendants, who are no longer in the case.

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 II. Grant of Summary Judgment for Serna and Martinez

The district court held that plaintiff had not demonstrated a triable issue in

support of his claim that defendants Serna and Martinez acted with deliberate

indifference when assigning him to prisons in the state system, in particular the

privately run facilities at TCDF and LCCF. Plaintiff challenges this ruling in two

respects. First, on the merits, he insists the court focused solely on his failure to

inform the defendants of the particular personal risks he faced at the facilities and

overlooked the broad systemic risk for protective custody inmates that defendants

also allegedly ignored. Second, he contends the court erred procedurally in ruling

on summary judgment without affording him necessary discovery. We review the

substantive challenge de novo and the discovery issue for an abuse of discretion,

Handy v. Price , 996 F.2d 1064, 1066, 1068 (10 th Cir. 1993), and affirm. 6

6
Defendants argue that plaintiff waived appellate review by not filing timely
objections to the magistrate judge’s recommendation adopted by the district court.
This argument rests on a compound error: defendants miscalculate the deadline by
ignoring Fed. R. Civ. P. 6(a) & (e) (excluding weekends for periods of less than
eleven days, and adding three days to any period following service by mail), see
Theede v. United States Dep’t of Labor , 172 F.3d 1262, 1266 (10 th Cir. 1999),
and they misidentify plaintiff’s filing date by ignoring the prison mailbox rule,
see Dunn v. White , 880 F.2d 1188, 1190 (10 th Cir. 1989) (applying Houston v.
Lack , 487 U.S. 266 (1988), to inmate’s objection to magistrate judge
recommendation). Plaintiff timely requested an extension within the time for
filing his objections, which was granted. We do note, however, that plaintiff
limited his extension request and his ensuing objections to his Eighth Amendment
claim against Serna and Martinez, which is also the only claim he pursues against
them on appeal.

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 The district court adopted the magistrate judge’s recommendation to hold

that plaintiff’s claim against Serna and Martinez failed for lack of evidence on the

subjective intent prong of the Eighth Amendment standard, i.e., that they “ kn[ew]

of and disregard [ed] an excessive risk to [his] health and safety.” Farmer , 511

U.S. at 837 (emphasis added). As a general matter, plaintiff’s objection that the

court reached this conclusion by considering only his personal correspondence

with defendants (which was facially inadequate to demonstrate the requisite risk)

and disregarding his claim of broad security deficiencies for protective custody

inmates is belied by the magistrate judge’s analysis, the first section of which

specifically addresses the latter issue. See R. Vol. 1 doc. 43, at 8-10.

The magistrate judge acknowledged precisely the argument plaintiff now

emphasizes: “that Serna and Martinez were generally aware, or should have been

aware, that TCDF and LCCF were not equipped to handle protective custody

inmates and were further aware that the classification system of the Department

of Corrections was flawed, and their actions in placing [plaintiff] in these

institutions, without adequate classification procedures, constitutes deliberate

indifference.” Id. at 8. But the magistrate judge rejected this argument for lack

of evidence that defendants knew of systemic deficiencies posing significant risks

to protective custody inmates, and hence to plaintiff, at the facilities in question.

Id. at 8-10. The magistrate judge noted, correctly, that plaintiff’s insistence that

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defendants should have known of the alleged security problems was insufficient

to fill the hole in his case on the subjective intent prong. See Farmer , 511 U.S. at

838 (explaining that Eighth Amendment claim cannot be based on “an official’s

failure to alleviate a significant risk that he should have perceived but did not”).

Of course, subjective intent may be established by “inference from

circumstantial evidence,” id. at 842, and, therefore,

if an Eighth Amendment plaintiff presents evidence showing that a
substantial risk of inmate attacks was longstanding, pervasive,
well-documented, or expressly noted by prison officials in the past,
and the circumstances suggest that the defendant-official being sued
had been exposed to information concerning the risk and thus ‘must
have known’ about it, then such evidence could be sufficient to
permit a trier of fact to find that the defendant-official had actual
knowledge of the risk.

Id. at 843 (quotation omitted). Thus, an Eighth Amendment claim could be made

out on evidence showing that officials transferred a protective custody inmate to a

facility knowing that the inmate could not be protected there.

Plaintiff insists he presented such evidence, citing the Executive Summary

of “The Consultant’s Report on Prison Operations in New Mexico Correctional

Institutions,” issued in January 2000 following a review of the state prison system

prompted by a riot at the Guadalupe County Correctional Facility. But as the

magistrate judge noted, while this 27-page summary reflects a far-reaching review

of many security issues in the state prison system, it does not mention any

problems regarding the location, housing, or security of protective custody

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inmates. The only reference to protective custody is a brief comment about lax

verification standards enabling inmates to manipulate the system and obtain

protective custody assignment without adequate factual justification. This

evidence does not remotely suggest the existence of circumstances that, conveyed

to defendants, would constrain their broad authority over the site assignment of

protective custody prisoners in the state system. See generally McKune v. Lile ,

536 U.S. 24, 39 (2002) (plurality opinion) (noting “that the decision where to

house inmates is at the core of prison administrators’ expertise”).

Plaintiff’s second objection is that he was not allowed to conduct adequate

discovery before the ruling on summary judgment. See Fed. R. Civ. P. 56(f). To

resist summary judgment on this basis, a party must specifically identify what

facts it seeks to discover and show how those facts would materially aid its case

on the dispositive issues. See Jensen v. Redevelopment Agency , 998 F.2d 1550,

1554-55 (10 th Cir. 1993). No relief under Rule 56(f) is warranted when “the

information sought is either irrelevant to the summary judgment motion or merely

cumulative.” Id. at 1554. We review the district court’s determination of these

matters only for an abuse of discretion. Id. at 1553.

Plaintiff cites three items of discovery that he argues would have enabled

him to oppose summary judgment. The first is the consultant’s report referred to

above. Given the absence of relevant protective custody issues in the report’s

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extensive executive summary, however, we agree with the district court that

plaintiff has not shown how the report (which, the district court also noted, was

not issued until after the events in this case) would have materially advanced his

Eighth Amendment claim against Serna and Martinez based on their alleged

indifference to risks faced by protective custody inmates.

The second type of discovery plaintiff cites includes the policies and

contracts governing TCDF and LCCF, which he claimed would show that these

facilities did not have designated protective custody housing. As defendants

pointed out in their response to plaintiff’s Rule 56(f) motion, however, the fact

that a prison is not a protective custody facility does not mean that it cannot

safely house protective custody inmates as needed. Indeed, plaintiff’s pleadings

repeatedly refer to protective custody areas set up at the facilities in question.

The relevant question for present purposes is not whether TCDF and LCCF were

designated as protective custody facilities but whether the security they provided

protective custody inmates was, in practice, inadequate (and, if so, whether Serna

and Martinez knew this). Plaintiff has not argued, much less persuasively shown,

that the materials he cites would have effectively addressed that question.

Finally, plaintiff sought the names of all of his enemies within the prison

system and the facilities where they were located. Such information would not

have materially advanced his case against Serna and Martinez, because it would

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not have shown that they possessed this information or that they knew the security

provided plaintiff as a protective custody inmate at the facilities involved would

not be sufficient to protect him from the enemies in question.

The arguments advanced by plaintiff on appeal do not undermine the grant

of summary judgment for Serna and Martinez on his Eighth Amendment claim.

Substantively, he has not demonstrated a triable issue on the subjective intent

element and, procedurally, he has not shown that the district court abused its

discretion in ruling on the matter without additional discovery.

III. Grant of Summary Judgment for CCA Defendants

The district court ultimately granted summary judgment for the CCA

defendants on the ground that plaintiff had not exhausted his administrative

remedies. Plaintiff objects to that determination, but his appeal in this regard is

deficient in two basic respects. We therefore summarily affirm.

First of all, plaintiff attempts to argue the matter by incorporating the briefs

he filed in opposition to defendant’s motion for summary judgment below. “Like

other circuit courts, we do not consider this acceptable argument.” Gaines-Tabb

v. ICI Explosives USA, Inc. , 160 F.3d 613, 623-24 (10 th Cir. 1998). Plaintiff’s

pro se status does not except him from this established rule. See Green v.

Dorrell , 969 F.2d 915, 917 (10 th Cir. 1992) (holding that pro se litigants must

“follow the same rules of procedure that govern other litigants”). Plaintiff’s

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perfunctory and unsubstantiated assertion that he could not obtain sufficient paper

for briefing is facially dubious. Given that the rules limit a party’s principal brief

to thirty pages, see Fed. R. App. P. 32(a)(7), plaintiff’s complaint about lack of

paper – made on page thirty of his brief – is facially nothing more than an

improper “attempt to evade the space limitations of [the rules] without filing a

motion for leave to file an oversized brief [and then actually doing the briefing].”

Fleming v. County of Kane , 855 F.2d 496, 498 (7 th Cir. 1988).

In any event, we agree with defendants that plaintiff has not preserved the

exhaustion issue for appeal. “This court has adopted a firm waiver rule which

provides that a litigant’s failure to file timely objections to a magistrate’s report

and recommendation waives appellate review of both the factual and legal

determinations.” Key v. Energy Res. Inc. v. Merrill (In re Key Energy Res. Inc.) ,

230 F.3d 1197, 1199-1200 (10 th Cir. 2000) (quotation an alteration omitted). As

explained below, plaintiff did not timely object to the magistrate judge’s

recommendation on this matter and, despite defendants’ express invocation of the

waiver rule in their appellate briefing, no exception to the rule has been offered

by plaintiff, nor does one affirmatively appear from the record.

In July 2002, the CCA defendants moved for summary judgment, asserting

that plaintiff had not exhausted his administrative remedies. Briefing proceeded

and, on December 2, 2002, the magistrate judge recommended that defendants’

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motion be granted. Plaintiff requested and was allowed an extension of time for

filing objections until December 20, 2002. But he did not mail his objections

until December 31, 2002. 7
The district court initially noted that the objections

were untimely, see R. Vol. 4 doc. 170, at 1 n.1, but considered them briefly in the

course of adopting the magistrate judge’s recommendation, see id. doc 177.

The eventual submission of untimely objections to a magistrate judge’s

recommendation does not excuse noncompliance with our rule, which by its terms

requires timely objection. See Key Energy Res., Inc. , 230 F.3d at 1201. Nor does

a district court’s election to consider untimely objections for purposes of its own

review negate the appellate -waiver consequences of noncompliance. See id. at

1201 n.3 (following Vega v. Suthers , 195 F.3d 573, 580 (10 th Cir. 1999), to hold

that district court review of untimely objection “would not preclude application of

the waiver rule or somehow ‘revive’ [the waived] claims”). And the rule applies

to pro se litigants “so long as they were properly informed of the consequences of

their failure to object.” Theede v. United States Dep’t of Labor , 172 F.3d 1262,

7
The deadline missed here was not a function of the date of service of the
recommendation but, rather, a later date-certain specified by the court (indeed,
requested by plaintiff), and, thus, there is no uncertainty about when the time for
objections expired. Hence, this court’s holding in United States v. Clingman , 288
F.3d 1183, 1185-86 (10 th Cir. 2002), that the deadline for objections measured
from service of the magistrate judge’s recommendation should not be enforced
when conclusive confirmation of the service date does not appear in the record,
does not apply.

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1268 (10 th Cir. 1999) (quotation and alteration omitted); see, e.g. , Treirweiler v.

Croxton & Trench Holding Corp. , 90 F.3d 1523, 1533 & n.5 (10 th Cir. 1996);

Fottler v. United States , 73 F.3d 1064, 1065 (10 th Cir. 1996). Here, the

magistrate judge’s recommendation made it clear that timely objection was a

prerequisite for appellate review. See R. Vol. 4 doc. 163, at 1 n.1.

We acknowledge that the waiver rule may be suspended “where the

interests of justice so require.” Fottler , 73 F.3d at 1065. But given plaintiff’s

unexplained failure to meet the extended deadline he himself requested, and the

facial inadequacy of his appellate briefing on the merits noted above, we cannot

conclude that the interests of justice require that an exception be made in this

case. See generally Wirsching v. Colorado , 360 F.3d 1191, 1197-98 (10 th Cir.

2004) (noting, as relevant to “interests of justice” exception in pro se context, the

extent of litigant’s responsibility for noncompliance and the merit of litigant’s

claims); Theede , 172 F.3d at 1268 (looking to same considerations).

IV. Denial of Motion to Amend Complaint

Nearly two years into the case, plaintiff sought to replace his original

three-claim complaint of twenty-six pages with an amended ten-claim complaint

of fifty-nine pages raising a host of far-reaching allegations and adding numerous

new defendants. After a thorough analysis weighing considerations of unjustified

delay and prejudice, the district court denied leave to amend. Both considerations

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are proper bases for disposition of a motion to amend. See Wessel v. City of

Albuquerque , 299 F.3d 1186, 1196-97 (10 th Cir. 2002) (affirming denial of

amendment based on undue delay); McKnight v. Kimberly Clark Corp. , 149 F.3d

1125, 1130 (10 th Cir. 1998) (affirming denial of amendment based on prejudice

to opposing party). Given the deference we owe the district court’s discretionary

judgment in this context, “even if we did not [agree with it], the district court’s

thoroughly reasoned explanation would not constitute an abuse of discretion.”

Reeder v. Am. Economy Ins. Co. , 88 F.3d 892, 896 (10 th Cir. 1996). Moreover,

on appeal plaintiff does nothing more than incorporate his district court briefing,

which, as we have already seen, is not a permissible means to present appellate

argument.

V. Lack of Jurisdiction in the District Court

As a last resort, plaintiff insists that if we affirm the district court’s

dismissal of the claims against the CCA defendants for lack of exhaustion, then

we must remand and direct the district court to vacate its rulings on all other

matters for lack of jurisdiction. There are several problems with this contention.

First of all, the exhaustion requirement is not jurisdictional. Steele v. Federal

Bureau of Prisons , 355 F.3d 1204, 1208 (10 th Cir. 2003), cert. denied , 125 S. Ct.

344 (2004). Second, plaintiff never raised this argument in the district court and

(being non-jurisdictional) the issue is therefore waived. Rios v. Ziglar , 398 F.3d

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1201, 1209 (10 th Cir. 2005). Finally, while this court has recognized a “total

exhaustion” rule under which a complaint presenting exhausted and unexhausted

claims should be dismissed in its entirety, Ross v. County of Bernalillo , 365 F.3d

1181, 1188-89 (10 th Cir. 2004), we have not extended the rule – applied in Ross

to affirm the dismissal of an action when, at the pleading stage, the court noted

some claims were not exhausted – to require retrospective vacatur of otherwise

proper merits dispositions when, later in the proceedings, the court becomes

aware of an exhaustion deficiency affecting a last remaining claim. Given the

inadequacies of plaintiff’s appellate argument, we do not deem this an appropriate

occasion to take such a step.

The judgment of the district court is AFFIRMED.

Entered for the Court

Timothy M. Tymkovich
Circuit Judge

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