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This order and judgment is not binding precedent except under the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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