Dawson v. Johnson

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS January 8, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

JAMES RALPH DAWSON, JR.,
No. 07-1116
Plaintiff - Appellant,
v. D. Colo.
SHANE JOHNSON; JOHN BOWKER, (D.C. No. 03-cv-466-ZLW-BNB)

Defendants - Appellees.

ORDER AND JUDGMENT *

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.

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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

James Ralph Dawson, Jr., a state prisoner appearing pro se and in forma

pauperis (ifp), appeals from the district court’s order granting partial summary

*
This order and judgment is not binding precedent except under the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.
judgment in favor of certain defendants. 1 He also appeals from various alleged

trial errors. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the

order of partial summary judgment and dismiss the remainder of Dawson’s appeal

due to an inadequate record.

I. BACKGROUND

Dawson is incarcerated in the Limon Correctional Facility, which is

operated by the Colorado Department of Corrections (CDOC). Dawson filed a

pro se complaint under 42 U.S.C. § 1983, alleging he received a prison

disciplinary conviction in retaliation for exercising his First Amendment right to

file grievances concerning prison conditions. Dawson named as defendants the

CDOC and five CDOC employees: associate warden Al Estep and correctional

officers John Bowker, Shane Johnson, Endre Samu and Danny Adams (misnamed

as Gary Adams). Dawson sought injunctive relief and monetary damages.

Dawson alleged he filed a series of grievances regarding the different

privileges afforded to inmates who were employed as compared to inmates who

were not employed. He claims that three days after meeting with Estep to discuss

the discrepancy, Bowker asked him to write a letter indicating he would drop any

grievances and potential lawsuits in exchange for a particular job. Dawson

alleges Bowker told him Johnson had instructed Bowker to make this proposal.

1
On account of Dawson’s pro se status, we liberally construe his filings,
but hold him to the same rules of procedure as other litigants. See Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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Dawson wrote the letter and was then charged with a prison infraction – bribery.

He was tried by a prison disciplinary board. The hearing was chaired by Samu

and Adams acted as the prosecuting officer. Dawson was convicted and

sentenced to ten days in punitive segregation. He appealed his conviction

internally, and the conviction was affirmed by Estep.

After limited discovery, the defendants filed a motion for partial summary

judgment, arguing, inter alia, the CDOC was entitled to immunity under the

Eleventh Amendment and Samu, Adams and Estep were entitled to summary

judgment in their individual capacities because they did not personally participate

in the alleged conspiracy to retaliate against Dawson. The motion was referred to

a magistrate judge for a report and recommendation (R&R). The magistrate

concluded the CDOC was immune under the Eleventh Amendment and Samu,

Adams and Estep were entitled to judgment in their individual capacities based on

lack of personal participation. The magistrate also concluded Samu, Adams and

Estep were entitled to Eleventh Amendment immunity in their official capacities

to the extent Dawson sought monetary damages. Dawson objected to the R&R.

In their response to Dawson’s objections, the defendants agreed with the

magistrate’s conclusions and also argued Samu, Adams and Estep were entitled to

judgment in their official capacities even as to Dawson’s request for injunctive

relief. They reasoned that because there was no evidence these individuals

retaliated against Dawson, there was nothing to enjoin. The court adopted the

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magistrate’s R&R and further concluded Samu, Adams and Estep were entitled to

judgment in their official capacities as to Dawson’s request for injunctive relief.

The matter was then set for trial against Johnson and Bowker. The court

granted Dawson’s request for appointed counsel, and two attorneys entered their

appearances on his behalf. Both Dawson and the defendants filed a motion in

limine concerning the admissibility of Dawson’s prior convictions. 2 Dawson

contended the convictions were inadmissible because of their age and were not

relevant; the defendants contended they were admissible for purposes of attacking

Dawson’s credibility. The court heard argument and held the murder and assault

convictions were inadmissible but the other convictions were admissible for

impeachment. Also prior to trial, Dawson filed a pro se motion for judgment as a

matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. The

court dismissed Dawson’s motion without prejudice, concluding it was premature.

Trial began on March 12, 2007, and continued for four days. The jury

returned a verdict in favor of Johnson and Bowker and judgment was entered on

March 16. Dawson filed a pro se notice of appeal and a pro se “renewed” Rule

50(b) motion for judgment as a matter of law. The motion was denied. Dawson

then submitted a motion and affidavit for leave to proceed ifp on appeal pursuant

2
Dawson had been convicted of murder, attempted murder, assault,
criminal impersonation, forgery, criminal possession of a forged instrument,
criminal possession of a credit device, theft and attempted theft. Some of these
convictions were over twenty years old.

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to 28 U.S.C. § 1915 and Rule 24 of the Federal Rules of Appellate Procedure.

The court granted Dawson leave to proceed ifp but denied his request for a free

transcript. The court stated: “Plaintiff may pay the estimated transcript fee in

advance or make his own arrangements with the court reporter to pay for the cost

of the transcript.” (R. Doc. 176 at 3.)

Appearing pro se in this Court, Dawson contends the district court erred in

four respects: (1) by granting summary judgment to Samu, Adams and Estep

based on their lack of personal participation in the alleged conspiracy; (2) by

improperly instructing the jury; (3) by denying his post-verdict motion for

judgment as a matter of law; and (4) by admitting evidence of his prior

convictions, some of which were twenty-five years old.

II. DISCUSSION

A. Summary Judgment

The district court granted summary judgment in favor of Samu, Adams and

Estep because Dawson failed to produce any evidence indicating these defendants

were personally involved in the alleged conspiracy to retaliate against him.

Dawson contends this was error. “We review the district court’s grant of

summary judgment de novo, applying the same legal standard used by the district

court under Fed. R. Civ. P. 56(c).” James Barlow Family Ltd. P’ship v. David M.

Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997) (citation omitted).

“Summary judgment should not be granted unless the evidence, viewed in the

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light most favorable to the party opposing the motion, shows there are no genuine

issues of material fact and the moving party is due judgment as a matter of law.”

Id.

A defendant cannot be held liable in a § 1983 action unless he or she

caused or personally participated in the alleged constitutional violation. Mitchell

v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). A respondeat superior theory

of liability cannot form the basis of a § 1983 claim. McKee v. Heggy, 703 F.2d

479, 483 (10th Cir. 1983). To establish a claim for retaliation, a plaintiff must

show that “but for the retaliatory motive, the incidents to which he refers . . .

would not have taken place.” Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir.

1990) (quotations omitted). Dawson introduced no evidence to show that, but for

a retaliatory motive on the part of Samu, Adams and Estep, he would not have

been convicted of bribery.

Dawson was asked, through interrogatories, to identify and describe the

facts that supported his claims against Samu, Adams and Estep. As to Samu,

Dawson stated: “Endre Samu . . . found me guilty of bribery for participating in

the prison grievance process. I explained to him that I was exercising a

constitutional right to exhaust my prison remedies and petition for grievance and

access the courts. Nonetheless, he sent me to [segregation] for 10 days.” (R.

Doc. 61, Ex.. A-2 at 3.) As to Adams, Dawson stated: “Gary Adams . . .

prosecuted the change of bribery against me. I informed him that I was

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exercising a constitutional right to exhaust my prison remedies and petition for

grievance to access the courts. He then sent me to [segregation] for 10 days.”

(Id.) And as to Estep: “Al Estep initiated the retaliatory conspiracy against me

and gave his written explanation of why in his response to my appeal. Mr. Estep

specifically states, ‘you were charged with bribery because you attempted to

exchange dropping grievance/legal action if given a porters job. [T]he filing of

frivolous or too may grievances is dealt with in another manner per D.O.C.

policy. The charge and decision [were] appropriate.’” (Id.)

Even viewing these allegations in the light most favorable to Dawson, they

do not establish that Samu, Adams or Estep had a retaliatory motive or personally

participated in the alleged conspiracy. Samu’s only involvement was that he

presided over the disciplinary hearing at which Dawson was convicted. Adams’

only involvement was that he investigated the bribery charge and presented facts

in support of the charge at the hearing. Estep’s only involvement was that he

affirmed Dawson’s conviction. Estep’s statement regarding the filing of

grievances was merely an explanation of prison procedure and is not evidence of

retaliation. Dawson claims that, because of his supervisory role, Estep was

“responsible for knowing everything that transpires in the prison.” (Id. at 1.) Our

case law instructs that a prison official cannot be held liable for all actions that

occur at a prison merely because he has general supervisory responsibility.

Mitchell, 80 F.3d at 1441 (“supervisor status by itself is insufficient to support

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liability”).

Because Dawson produced no evidence that Samu, Adams and Estep

participated or acquiesced in the alleged deprivation of his constitutional rights or

inadequately trained or supervised the officers who allegedly did (Bowker and

Johnson), the district court did not err in granting summary judgment to these

defendants. See McKee, 703 F.2d at 483 (“defendant Heggy is liable to [plaintiff]

only if Mr. Heggy participated or acquiesced in [plaintiff]’s deprivation or if he

inadequately trained or supervised the officers who did”); see also Woodword v.

City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992) (“supervisor liability

[under § 1983] requires allegations of personal direction or of actual knowledge

and acquiescence”) (quotations omitted).

B. Jury Instructions

Dawson argues the district court improperly instructed the jury and failed

to give a requested instruction. Normally, we review a refusal to give an

instruction for an abuse of discretion. Wolfgang v. Mid-Am. Motorsports, Inc.,

111 F.3d 1515, 1525 (10th Cir. 1997). In assessing whether such abuse has

occurred, we “examine the instructions as a whole to determine whether they

sufficiently cover the issues, facts and evidence in the case.” Id. at 1526. The

ultimate question of whether a jury was properly instructed is a question of law

we review de novo. Id.

Here, we have no way of reviewing whether the instructions sufficiently

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cover the issues, facts and evidence because the record on appeal does not include

either the trial transcript or the jury instructions. In Roberts v. Roadway Express,

Inc., we held we could not consider the appellant’s objections to the jury

instructions because the “[a]ppellant has provided neither the instructions given to

the jury nor a complete record of the proceedings on which those instructions

were based.” 149 F.3d 1098, 1109 (10th Cir. 1998). This holding is equally

applicable here.

Pursuant to Rule 10(b)(2) of the Federal Rules of Appellate Procedure, “[i]f

the appellant intends to urge on appeal that a finding or conclusion is unsupported

by the evidence or is contrary to the evidence, the appellant must include in the

record a transcript of all evidence relevant to that finding or conclusion.” The

rules of this Circuit similarly provide that “[t]he appellant must provide all

portions of the transcript necessary to give the court a complete and accurate

record of the proceedings related to the issues on appeal.” 10th Cir. R.

10.1(A)(1). The district court specifically denied Dawson’s request for a free

trial transcript and instructed him to pay the transcript fee in advance or make

other arrangements with the court reporter. He failed to do so. 3

Dawson did not appeal from the district court’s denial of his request for a

3
Dawson also failed to include the proposed and final jury instructions in
the record on appeal, in contravention of our rules. See 10th Cir. R. 10.3(C)(6)
(“Every record on appeal sent to this court must include: . . . all jury instructions
when an instruction is an issue on appeal, as well as proposed instructions that
were refused”).

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free transcript; nor did he file a motion for a free transcript with this Court. He

made no mention of the missing transcript in his opening brief. In his reply brief,

however (and without citation to authority to support his request), Dawson “urges

the Court to order a complete transcript of his trial . . . .” (Appellant’s Reply Br.

at 2.) He claims “[t]he defendants are attempting to decieve [sic] the Court in

hope that the Court will not require that the trial record be transcribed for a de

novo review.” (Id.) It is not for the Court to order the transcript of the trial; that

is the duty of the appellant. See Fed. R. App. P. 10(b)(1). Dawson claims the

government has misrepresented facts but has not detailed which portions of the

trial record deserve transcription or explained (other than in a most general and

somewhat conclusory way) what would be revealed. In short, he has not justified

his request for a free transcript even if we were to overlook his procedural

missteps. We have held “on a number of occasions and in a variety of settings

that the lack of a required transcript leaves us with no alternative but to affirm.”

Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1238 (10th

Cir. 1999) (quotations omitted); see also United States v. Vasquez, 985 F.2d 491,

494 (10th Cir. 1993) (“When the record on appeal fails to include copies of the

documents necessary to decide an issue on appeal, the Court of Appeals is unable

to rule on that issue.”). “An appellant’s failure to provide a necessary transcript

entails more than mere noncompliance with some useful but nonessential

procedural admonition; it raises an effective barrier to informed, substantive

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appellate review.” Morrison Knudsen Corp., 175 F.3d at 1238 (quotations

omitted).

C. Judgment as a Matter of Law

Dawson claims the court erred in denying his post-verdict motion for

judgment as a matter of law pursuant to Rule 50(b). Generally, we review a

district court’s decision on a motion for judgment as a matter of law de novo,

applying the same legal standard as the trial court. EEOC v. Heartway Corp., 466

F.3d 1156, 1160 (10th Cir. 2006). Because Dawson failed to include the trial

transcript in the record on appeal, we have no means of evaluating the adequacy

of the evidence presented. Dawson has thus waived his claim concerning the

sufficiency of the evidence. See Vasquez, 985 F.2d at 495 (“By failing to file a

copy of the trial transcript as part of the record on appeal, the appellant waives

any claims concerning the sufficiency of the evidence at trial.”).

Even if we were to consider Dawson’s Rule 50(b) motion in the absence of

an adequate record, the motion was properly denied because it was not preceded

by a proper Rule 50(a) motion. A “pre-verdict Rule 50(a) motion” is “a

prerequisite to a post-verdict motion under Rule 50(b).” Marshall, 474 F.3d at

738. The motion Dawson filed before trial had commenced was not a proper Rule

50(a) motion. See Fed. R. Civ. P. 50(a)(2) (“A motion for judgment as a matter

of law may be made at any time [during trial] before the case is submitted to the

jury.”) Thus, regardless of what the trial transcript were to reveal, the denial of

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Dawson’s Rule 50(b) motion was not error.

D. Admission of Prior Convictions

Dawson’s final contention of error suffers from the same infirmity. While

we generally review a trial court’s decision to admit or exclude evidence for an

abuse of discretion, United States v. McConnel, 464 F.3d 1152, 1162 (10th Cir.

2006), cert. denied, 127 S.Ct. 2085 (2007), we will not do so here because

Dawson failed to include the transcripts of the trial and the hearing where the

court heard argument on the motions in limine and made its ruling. “An appellant

who provides an inadequate record does so at his peril.” Dikeman v. Nat’l

Educators, Inc., 81 F.3d 949, 955 (10th Cir. 1996). “The failure to file a

transcript . . . precludes review of the trial court’s evidentiary rulings. Challenges

to the admission of evidence will not be considered by the Court of Appeals in the

absence of a record containing those portions of the transcript on which the

appellant relies.” Vasquez, 985 F.2d at 495.

We AFFIRM the grant of summary judgment and DISMISS the remainder

of Dawson’s appeal.

ENTERED FOR THE COURT

Terrence L. O’Brien
Circuit Judge

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