FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 9, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
DARNELL PITTMAN, SR.,
Plaintiff - Appellant,
v. No. 20-1139
(D.C. No. 1:19-CV-02641-LTB-GPG)
T. HOLCOMB, Correctional Lieutenant; (D. Colo.)
A. VANSICKLE, Correctional Officer,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, MURPHY and PHILLIPS, Circuit Judges.
_________________________________
Darnell Pittman, Sr., a federal prisoner proceeding pro se, filed a complaint
alleging that correctional officers violated his rights under the Eighth and First
Amendments. The district court held the complaint was frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) and dismissed it with prejudice. Exercising jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm the district court’s judgment.
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
In screening Pittman’s Third Amended Complaint, a magistrate judge
described his allegations as follows:
Plaintiff asserts that on August 27, 2018, in preparation for transporting
Plaintiff to have Carpal Tunnel Syndrome (CTS) corrective surgery outside
the prison, Defendant A. Vansickle placed regular-sized security restraints,
handcuffs, on Plaintiff’s wrists over the braces he was wearing, even
though he told Defendant Vansickle that he was wearing the braces to
alleviate the stress of the handcuffs against his wrist. Although Defendants
allowed Plaintiff to wear the braces, Plaintiff contends Defendants would
not use larger handcuffs, and as a result Defendant Vansickle used
excessive force when placing the handcuffs on him, which caused Plaintiff
to incur a “waive of pain and discomfort” in his left arm and right wrist.
Finally, Defendant Holcomb told Plaintiff no larger handcuffs would be
used, and when Plaintiff complained about the tightness of the handcuffs
and severe pain, Defendant Holcomb told him to “shut up” or he would
cancel the surgery. Defendant Holcomb also told Defendant Vansickle to
make sure the handcuffs were tight and did not “slide on Plaintiff’s wrists.”
Plaintiff further asserts that he told Defendant Holcomb he had a right to
“address his concerns regarding his medical conditions.” At some point
after Plaintiff’s complaining, Defendant Holcomb cancelled the surgery.
. . . Plaintiff further asserts that Defendant Holcomb cancelled his
surgery in retaliation for exercising his right to complain about the pain and
discomfort and his medical condition.
R. at 115-16 (citations omitted).
The magistrate judge issued a Recommendation that Pittman’s Third Amended
Complaint be dismissed without prejudice because the complaint failed to state a
plausible claim for relief as required by Federal Rule of Civil Procedure 8. The
magistrate judge first held that his allegations were insufficient to show that
Defendants acted with deliberate indifference to his serious medical needs or had
used excessive force in violation of the Eighth Amendment:
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Plaintiff does not assert . . . that the surgeon or prison medical staff
had issued braces to Plaintiff for his CTS condition and had provided
specific instructions that Plaintiff was to wear the braces under large
handcuffs. Furthermore, the severe pain and discomfort due to the tight
handcuffs happened only on August 27, 2018, and Plaintiff does not assert
that placement of the handcuffs over the braces on this occasion worsened
the CTS condition. Plaintiff complained and the handcuffs were removed.
. . . Plaintiff does not assert that subsequent to the August 27
incident he has been denied the corrective surgery on his wrists. Although
Plaintiff states in general that Defendant Holcomb subjected him to
“on-going pain and suffering, as well as continued limited use of [his] two
limbs,” he does not assert that due to the cancellation of the transport on
August 27 he has continued to be denied subsequent access to surgery. In
fact, Plaintiff does not seek any injunctive relief that includes the
performance of the corrective surgery. His request for relief includes only
money damages and declaratory judgment that Defendants violated his
First and Eighth Amendment rights.
. . . Even if Defendants’ actions are found to be malevolent, or
unnecessary, the force Plaintiff complains of was both de minimis and not
of a sort repugnant to the conscience of mankind. The incident happened
on one occasion, the pain was immediate, and the handcuffs were removed.
Plaintiff does not assert with any specificity how his condition has
worsened due to the August 27 incident and that he has been denied access
to surgery subsequent to the August 27 incident as a result of Defendants’
actions.
Id. at 119-20 (brackets in original).
Regarding Pittman’s First Amendment claim, the magistrate judge held that he
fail[ed] to demonstrate that Defendants had no legitimate basis to order him
to quit complaining or he would not be transported for his surgery. Nor did
Plaintiff plead any other facts showing that the usual justification for not
permitting a prisoner to repeatedly question a staff member’s decision, the
need to maintain order in a prison setting, did not apply in this case.
Plaintiff failed to plead that Defendants’ conduct was not “reasonably
related to legitimate penological interests when transporting a prisoner,” in
assuring that Plaintiff’s handcuffs were tight and did not slide on Plaintiff’s
wrists.
Id. at 120-21 (citation omitted).
3
Pittman filed objections to the Recommendation, as well as a motion for leave
to file a Fourth Amended Complaint in which he sought to add an additional claim
under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (FTCA). After reviewing
the magistrate judge’s Recommendation de novo and considering the additional
factual statements in Pittman’s objections, the district court adopted the
Recommendation and dismissed the Third Amended Complaint “for failure to
comply with [Rule] 8,” adding that the complaint was dismissed “with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as legally frivolous.” R. at 167. It entered
judgment the same day. Shortly thereafter, the district court entered a minute order
denying Pittman’s motion for leave to file a Fourth Amended Complaint because he
had failed to attach an amended complaint that complied with the court’s previous
order directing him to file a Third Amended Complaint.
II. Discussion
On appeal, Pittman argues that his Third Amended Complaint complied with
Rule 8 and the district court abused its discretion in dismissing the complaint with
prejudice without first considering certain criteria. He also contends that the court
erred in holding that his complaint was frivolous. Lastly, he argues the district court
abused its discretion in denying his motion for leave to file a Fourth Amended
Complaint.
Pittman is correct that, before a court may dismiss a complaint with prejudice
under Federal Rule of Civil Procedure 41(b) for failure to comply with Rule 8, it
must consider certain criteria. See Nasious v. Two Unknown B.I.C.E. Agents,
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492 F.3d 1158, 1162 (10th Cir. 2007). But the district court did not dismiss his Third
Amended Complaint with prejudice under Rule 41(b). It held the complaint was
legally frivolous under § 1915(e)(2)(B)(i). We review that ruling de novo. See Fogle
v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).
“[A] complaint . . . is frivolous where it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). But the frivolousness
standard is intended to apply to “claim[s] based on an indisputably meritless legal
theory” or “claims describing fantastic or delusional scenarios,” id. at 327-28, not
claims that merely fail to state a claim upon which relief can be granted, id. at 328.
Thus, a complaint that fails to state a claim is not automatically frivolous within the
meaning of § 1915(e)(2)(B)(i). See id. at 331.
In liberally construing Pittman’s pro se Third Amended Complaint, see Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we are not convinced that it was so
deficient as to be frivolous. He invoked recognized legal theories and did not present
fanciful factual allegations. Nevertheless, Pittman’s claims cannot proceed. For
substantially the reasons stated in the magistrate judge’s Recommendation and the
district court’s dismissal order adopting the Recommendation, we conclude that the
facts he alleged in his Third Amended Complaint failed to rise to the level of stating
plausible claims for relief under either the Eighth Amendment or the First
Amendment. See Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009). In these
circumstances, dismissal under § 1915(e)(2)(B) remains appropriate—but under
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subsection (e)(2)(B)(ii), which calls for dismissal for failure to state a claim upon
which relief can be granted.1
We further conclude that Pittman’s Third Amended Complaint was properly
dismissed with prejudice. In the district court and on appeal, Pittman has contended
that his allegations are sufficient, without further amendment, to state plausible
claims under the Eighth and First Amendments. And although he did ask for leave to
file a Fourth Amended Complaint, he sought only to add an additional claim under
the FTCA. He did not propose any amendment to the allegations in his Third
Amended Complaint supporting his constitutional claims. See Requena v. Roberts,
893 F.3d 1195, 1204 & n.3 (10th Cir. 2018) (requiring “a written motion for leave to
amend, giving adequate notice of the basis of the proposed amendment” (emphasis
added)). We therefore need not address whether further amendment of his
constitutional claims would be futile before affirming dismissal of Pittman’s
complaint with prejudice. See id.
1
We note that in reviewing previous cases dismissed by the district court
pursuant to 28 U.S.C. § 1915(e)(2)(B), we have emphasized the distinction between
the frivolousness standard in subsection (e)(2)(B)(i) and the “fails to state a claim on
which relief may be granted” standard in subsection (e)(2)(B)(ii). See, e.g., Johnson
v. Raemisch, 763 F. App’x 731, 732-33, 734-35 (10th Cir. 2019) (affirming dismissal
of claims the district court deemed legally frivolous on alternative ground that they
failed to state a claim); Johnson v. Doe, 741 F. App’x 573, 575-76 (10th Cir. 2018)
(same); Fletcher v. Schwartz, 745 F. App’x 71, 72, 73-74 (10th Cir. 2018) (same);
see also Ward v. Lutheran Med. Ctr., 769 F. App’x 595, 597-599 (10th Cir. 2019)
(reversing dismissal of claim deemed legally frivolous by the district court);
Thompson v. Lengerich, 798 F. App’x 204, 208, 214 (10th Cir. 2019) (reversing
dismissal of claims deemed legally frivolous on screening under 28 U.S.C.
§ 1915A(b)(1)). The district court did not apply the distinction.
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Finally, Pittman fails to show that the district court abused its discretion in
denying him leave to file a Fourth Amended Complaint to add an FTCA claim.2
III. Conclusion
The district court’s judgment is affirmed. We grant Pittman’s motion for leave
to proceed on appeal without prepayment of fees and costs but remind him of his
obligation to continue to make partial payments until such fees and costs have been
pain in full.
Entered for the Court
Michael R. Murphy
Circuit Judge
2
To the extent that Pittman advances arguments of error in the district court’s
denial of his motion under Federal Rule of Civil Procedure 60(b), we lack
jurisdiction to consider his contentions. Pittman failed to amend his notice of appeal
or file a new notice of appeal after the district court denied that motion. See
Fed. R. App. P. 4(a)(4)(B)(ii); Husky Ventures, Inc. v. B55 Invs., Ltd., 911 F.3d 1000,
1008-09 & n.4 (10th Cir. 2018).
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