Davis v. Davis

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 14, 2010
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

MARVIN B. DAVIS, JR.,

Plaintiff-Appellant,

v. No. 09-3382
(D.C. No. 5:00-CV-03051-MLB)
JOHNNY DAVIS, Master Sergeant; (D. Kan.)
WILLIAM E. CUMMINGS, Inmate
and Staff Relations,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before TACHA, LUCERO, and MURPHY, Circuit Judges.

Plaintiff-appellant Marvin Davis, a Kansas state prisoner proceeding pro se,

appeals from a jury verdict in favor of defendant Johnny Davis on his claim of

retaliation in violation of the First Amendment. He also appeals from a district

court order dismissing numerous other claims before trial, including all of his

*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
claims against William Cummings, and he contends that the district court

compounded its errors in denying his motion for a new trial. Plaintiff seeks

permission to proceed on appeal in forma pauperis, and he has also requested free

copies of the transcripts of his two trials under 28 U.S.C. § 753(f). We think he

has presented a reasoned, non-frivolous argument on appeal, and that he is

therefore entitled to proceed in forma pauperis. See DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991). To be entitled to a free transcript, however, a

litigant must show, not only that his suit is not frivolous, but that a transcript is

necessary to resolve the issues raised on appeal. Cf. Sistrunk v. United States,

992 F.2d 258, 259 (10th Cir. 1993) (applying § 753(f) in habeas case). Because

we conclude that plaintiff failed to make this latter showing, we deny his motion

for transcripts. We also conclude that the district court committed no reversible

errors as to the issues that plaintiff adequately raised for our review, and that his

brief on appeal provides no grounds for overturning the jury’s verdict. We

therefore exercise our jurisdiction under 28 U.S.C. § 1291 to affirm.

I. Background

At all times relevant to this appeal, plaintiff was incarcerated at the

Hutchinson Correctional Facility (HCF) in Kansas. Defendant Johnny Davis

worked at HCF as a corrections officer. Cummings did not work at HCF, but

served as the Secretary of Corrections designee for prison grievances in Topeka,

Kansas. In February 2000, plaintiff filed this action pro se under 42 U.S.C.

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§ 1983, complaining about the adequacy of the HCF law library and accusing

several corrections officers, but not Davis or Cummings, of causing him to miss

the deadline in his criminal case for filing a petition for a writ of certiorari in the

United States Supreme Court. His claims against Davis and Cummings stem from

events occurring after the case was filed. We follow the parties’ lead in referring

to these events as the “picnic area incident” and the “fan incident.”

The picnic area incident occurred on April 9, 2001, when Davis

reprimanded plaintiff for having his legal papers in an outdoor picnic area where

the inmates’ personal property was prohibited. Plaintiff had permission from a

deputy warden, however, to review his legal documents outside and away from

the cigarette smoke that permeated the inmate day room. The next day, April 10,

plaintiff filed a formal grievance against Davis for what he believed was a

spiteful reprimand in the picnic area. The fan incident took place seven weeks

later, on May 30, and involved Davis’s issuance of a disciplinary report against

plaintiff. The report accused plaintiff of placing a fan in front of a fire exit in

violation of prison policy. Plaintiff forcefully denied the charge. He argued that

there was no such policy and that in any event he had not moved the fan.

Ultimately, a disciplinary committee agreed with him and the report was

dismissed.

These events led plaintiff, on June 18, 2001, to file a motion seeking to join

Davis and Cummings as defendants in this action. He argued that Davis had

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manufactured the fan incident and issued a false disciplinary report in order to

retaliate against him for filing the April 10 grievance. And he claimed that

Cummings had retaliated against him by failing to investigate the April 10

grievance among others. The district court granted plaintiff’s motion, and he

ultimately filed an amended complaint alleging First Amendment retaliation

claims against Davis and Cummings based on these events.

In 2005, the district court dismissed the action entirely based on Eleventh

Amendment and qualified immunity. On appeal, this court affirmed the judgment

as to all claims, except the retaliation claims against Davis and Cummings, which

the district court had overlooked in its order of dismissal. Davis v. Bruce,

129 F. App’x 406 (10th Cir. 2005). We remanded the case in order for the district

court to address those claims. On remand, the district court appointed counsel to

represent plaintiff, and the retaliation claims against Davis and Cummings

ultimately went to trial in June 2008. At the close of plaintiff’s case, Davis and

Cummings filed an oral motion for judgment as a matter of law under Federal

Rule of Civil Procedure 50(a). The court took the motion under advisement, and

the trial ended in a hung jury. Defendants then renewed their motion under Rule

50(b).

On December 8, 2008, the court entered an order granting defendants’ Rule

50(b) motion as to all claims, except the retaliation claim against Davis based on

the fan incident. The court concluded that the evidence relating to Cummings

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revealed that he had neither worked at HCF nor reviewed grievances at the

facility level during the relevant time period. Consequently, even accepting

plaintiff’s claim that Cummings ignored his grievances, the court concluded there

was no evidence that he did so with a retaliatory motive.

The court went on to conclude that much of the alleged retaliatory conduct

underlying plaintiff’s claims against Davis had already survived constitutional

attack in the earlier appeal. It acknowledged that plaintiff’s first trial had

encompassed numerous additional retaliation claims against Davis, but the court

concluded there was no evidence that Davis had personally participated in the

alleged wrongdoing underlying those claims. 1 Only one claim–plaintiff’s

retaliation claim against Davis for issuing the fan disciplinary report–was found

by the district court to be supported by evidence sufficient to warrant a retrial.

The [fan] incident followed closely on the heels of plaintiff’s
grievance against defendant Davis for the picnic area incident.
Defendant Davis knew that plaintiff filed a grievance against him for
that incident. Based on the timing of the fan disciplinary report and
the eventual dismissal of the disciplinary report because plaintiff had
not violated any rules, the court finds that a reasonable jury could
find that defendant Davis wrote plaintiff up in retaliation for
plaintiff’s April [10] grievance.

1
These additional retaliation claims were based on the following incidents:
(1) the late-filing of plaintiff’s petition for writ of certiorari; (2) prison transfers
in 2000 and 2002; (3) plaintiff’s lost mail in 2000; (4) allegedly false disciplinary
reports against plaintiff in 2001; and (5) the loss of plaintiff’s prison job in 2001.

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R. Vol. 4 at 514-15. 2 In ordering a retrial to resolve this single issue, the court

reiterated that “[t]he only claim remaining for trial is the First Amendment

Retaliation claim against defendant Davis for writing the May 30, 2001

disciplinary report for moving the fan.” Id. at 518.

Following this order, Davis filed a motion in limine seeking to exclude any

evidence relating to dismissed claims as irrelevant and unnecessarily confusing to

the jury. Specifically, he sought to exclude evidence relating to (1) all claims

against Cummings; (2) all due process claims; and (3) all of the previously

dismissed retaliation claims against Davis. Plaintiff responded that evidence

concerning his dismissed claims was relevant to show the evolution of Davis’s

retaliatory animus towards him. He urged the court not to view the events of

April 10 and May 30 in a vacuum, arguing that they merely represented the

culmination of “[d]efendant’s campaign of retaliation.” Id. at 613. On July 10,

2009, the court ruled against plaintiff and in favor of Davis, stating once again

that the trial would be limited to the sole issue of whether Davis’s May 30, 2001,

2
The court held that plaintiff’s due process claims were insufficient as a
matter of law because he had failed to show a constitutional deprivation under
Sandin v. Conner, 515 U.S. 472, 484 (1995). In that case, the Supreme Court
held that state-created liberty interests protected by the due process clause
generally are limited to restraints on prisoners that impose an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Id. Even affording plaintiff’s appellate brief a liberal construction, we
discern no argument concerning how the acts complained of constituted an
atypical and significant hardship. Thus, there is no basis to overturn the district
court’s dismissal of his due process claims.

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disciplinary report was issued in retaliation for plaintiff’s April 10 grievance. But

the court was careful to advise the parties that its relevance determination was not

static, stating that its order would not “preclude the admissibility of the excluded

evidence if it otherwise be[came] relevant at trial.” Id. at 699 (citing Turley v.

State Farm Mut. Auto, Ins. Co., 944 F.2d 669, 673 (10th Cir. 1991)).

The jury in the second trial found in favor of Davis, concluding that the fan

disciplinary report was not issued in retaliation for plaintiff’s grievance. After

the verdict, plaintiff’s counsel withdrew from the case, and plaintiff filed a pro se

motion for a new trial, which the district court denied by order dated November

23, 2009. This appeal challenges that order, as well as the partial grant of the

defendants’ Rule 50(b) motion.

II. Discussion

Plaintiff’s oversized, prolix brief presents a multitude of overlapping

arguments that are unfocused and illogically presented. As a pro se litigant, he is,

of course, entitled to a liberal construction of his papers. Van Deelen v. Johnson,

497 F.3d 1151, 1153 n.1 (10th Cir. 2007). But “[t]his liberal treatment is not

without limits, and this court has repeatedly insisted that pro se parties follow the

same rules of procedure that govern other litigants.” Kay v. Bemis, 500 F.3d

1214, 1218 (10th Cir. 2007) (internal quotation marks omitted). Accordingly,

while we have attempted to decipher the kernel of the arguments that plaintiff

wishes to present on appeal, we cannot assume the role of his advocate and assert

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arguments that he failed to raise or sufficiently develop for review. Drake v. City

of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). So guided, we construe

plaintiff’s brief as asserting two main arguments. First, he challenges the legal

bases for the district court’s partial dismissal under Rule 50(b). Second, he

claims that the district court abused its discretion during the second trial in

excluding evidence relevant to his single remaining retaliation claim.

A. Rule 50(b) Ruling

Plaintiff’s challenges to the district court’s decision on defendants’

renewed Rule 50 motion are strictly legal and can be resolved without resort to a

trial transcript. First, he contends the district court erred in granting the motion

because it included grounds beyond the scope of the Rule 50(a) motion that

defendants made orally at the close of plaintiff’s case. He is correct that “[a]

renewed motion under Rule 50(b) cannot assert grounds for relief not asserted in

the original motion.” Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733,

738-39 (10th Cir. 2007). This restriction, however, is subject to waiver if the

non-moving party fails to raise it before the district court. Guides, Ltd. v.

Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1076 n.3 (10th Cir. 2002)

(“When the non-moving party fails to raise the inadequacy of a Rule 50(a) motion

in opposition to a Rule 50(b) motion, that party cannot raise waiver as an

argument on appeal.”). We have carefully reviewed plaintiff’s opposition brief to

defendants’ Rule 50(b) motion (R. at 406-24), as well as his supplemental brief

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(id. at 431-34), both of which were submitted by counsel. Nowhere did he argue

to the district court that defendants’ Rule 50(b) motion asserted new grounds not

contained in the original. Plaintiff has therefore forfeited this argument by failing

to raise it below.

Plaintiff also challenges the district court’s decision dismissing his

retaliation claims against Cummings for lack of evidence of a retaliatory motive

and dismissing his due process claims based on the finding that he did not suffer a

constitutional deprivation under Sandin. We review these rulings de novo to

ensure that the evidence before the district court, viewed in the light most

favorable to plaintiff, revealed no legally sufficient basis to find in his favor. See

Burrell v. Armijo, 603 F.3d 825, 832 (10th Cir. 2010). Having reviewed the

briefs, the record, and the applicable law, we conclude that plaintiff has not

shown any reversible error as to these rulings. We therefore affirm the

adjudication of the claims against Cummings and the due process claims against

both defendants for substantially the same reasons given by the district court in

its Memorandum and Order, dated December 8, 2008.

B. Exclusion of Evidence

Plaintiff’s arguments concerning the district court’s evidentiary rulings

present a closer question regarding the usefulness of a trial transcript.

Evidentiary rulings made during the course of trial are entitled to great deference,

consonant with the “district court’s familiarity with the details of the case and its

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greater experience in evidentiary matters.” Frederick v. Swift Transp. Co.,

616 F.3d 1074, 1083 (10th Cir. 2010) (internal quotation marks omitted). To win

an evidentiary argument on appeal, the appellant must show that the district court

abused its discretion in excluding proffered evidence. In such cases, we are often

directed to the trial transcript, to the place where the evidence was offered and

excluded, and we have no problem concluding that a transcript is sometimes

necessary in order to determine whether an abuse of discretion occurred.

In this case, however, plaintiff does not specify the nature of the excluded

evidence or explain how and when he sought to offer such evidence at trial.

Instead, he mounts only a general attack on the district court’s pretrial decision to

limit the scope of the second trial. And he does this without so much as

identifying any particular ruling. Under these circumstances, we conclude that

plaintiff’s brief fails to adequately frame and develop an evidentiary issue for

appellate review. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented in an appellant’s opening brief”). It follows that he also

has failed to show entitlement to a free copy of the transcript of his second trial.

We reach this conclusion mindful of plaintiff’s pro se status and only after

dutifully searching his brief for a definitive challenge to a specific evidentiary

ruling. Having found none, we can only speculate as to the nature of the

allegedly excluded evidence. But our curiosity hardly justifies the preparation of

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a trial transcript, much less a scavenger hunt to determine whether the district

court abused its discretion in excluding unspecified relevant evidence. In sum,

plaintiff has forfeited any challenge that he may have had concerning the district

court’s exclusion of evidence at his second trial, and his brief on appeal provides

no other basis to overturn the jury’s verdict.

III. Conclusion

The judgment of the district court is AFFIRMED, and plaintiff’s Renewed

Motion For Transcripts is DENIED. Plaintiff’s motion to proceed on appeal in

forma pauperis is GRANTED.

Entered for the Court

Michael R. Murphy
Circuit Judge

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