Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 13, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
CHARLES KENZELL CARTER,
Plaintiff - Appellant,
v. No. 22-8044
(D.C. No. 2:22-CV-00145-NDF)
WYOMING DEPARTMENT OF (D. Wyo.)
CORRECTIONS CLASSIFICATION
AND HOUSING MANAGER, in his
official capacity also known as Carl
Voightsberger; CARL
VOIGHTSBERGER, individually;
WYOMING DEPARTMENT OF
CORRECTIONS DIRECTOR, in his
official capacity also known as Daniel
Shannon; DANIEL SHANNON,
individually; WYOMING DEPARTMENT
OF CORRECTIONS,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
*
After examining the brief 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a);
10th Cir. R. 32.1(A).
Appellate Case: 22-8044 Document: 010110752790 Date Filed: 10/13/2022 Page: 2
Charles Carter, a state prisoner proceeding pro se, 1 appeals the district court’s
order dismissing his 42 U.S.C. § 1983 complaint. For the reasons explained below,
we affirm.
Background
Carter’s complaint asserts claims against the Wyoming Department of
Corrections (WDOC) and two WDOC employees, Classification and Housing
Manager Carl Voightsberger and Director of the WDOC Daniel Shannon, in their
official and individual capacities. His claims stem in part from his 2019 transfer from
a Wyoming prison to Wallens Ridge State Prison in Virginia and a later June 2020
transfer to a different Virginia facility, Red Onion State Prison. Carter asserts that
although defendants contend the 2019 transfer was for compassionate reasons (so
Carter could be closer to his home in North Carolina), their true motive for
transferring him was to retaliate against him for filing grievances and threatening to
sue. Carter also alleges various forms of mistreatment at Red Onion State Prison in
2021 and 2022. He asserts claims under the First, Eighth, and Fourteenth
Amendments, as well as claims alleging supervisory liability and negligence. He
seeks an injunction requiring (among other things) a transfer back to Wyoming, a
declaratory judgment, and compensatory damages.
Carter sought to proceed in forma pauperis (IFP) at the district court and thus
avoid “prepayment of fees.” 28 U.S.C. § 1915(a)(1); see also § 1915(b) (explaining
1
We liberally construe Carter’s pro se filings, but we will not act as his
advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
2
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that litigant proceeding IFP must eventually pay full filing fee). Accordingly, the
district court screened Carter’s complaint for frivolousness, failure to state a claim,
and immune defendants. See § 1915(e)(2) (noting that “court shall dismiss the case at
any time if” any of these three conditions is met).
The district court began with Carter’s claims for damages against WDOC and
Voightsberger and Shannon in their official capacities. It noted that absent abrogation
by Congress or waiver by a state, the Eleventh Amendment generally makes both
states and state officials acting in their official capacities immune from suit in federal
court. See Collins v. Daniels, 916 F.3d 1302, 1315 (10th Cir. 2019). And the district
court found no abrogation or waiver in this case. The district court further rejected
Carter’s attempt to invoke the exception to Eleventh Amendment immunity under Ex
Parte Young, 209 U.S. 123 (1908), for his claims seeking prospective injunctive
relief.
The district court next turned to Carter’s individual-capacity claims against
Voightsberger and Shannon. As for the Eighth and Fourteenth Amendment claims
arising from the conditions at Red Onion State Prison, the district court noted the
personal-involvement requirement for § 1983 liability and determined that “[n]othing
in [Carter’s] complaint indicates any personal participation by [Voightsberger or
Shannon] in [Carter’s] treatment or conditions of confinement at [Red Onion State
Prison].” R. 116; see also Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009)
(“Individual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.” (quoting Foote v. Spiegel, 118 F.3d 1416, 1423
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(10th Cir. 1997))). The district court also rejected the claims arising from Carter’s
transfer, noting that there is no constitutional “right to incarceration in a particular
institution.’” R. 114 (quoting Al-Turki v. Tomsic, 926 F.3d 610, 615 (10th Cir.
2019)). And it further found Carter’s other transfer-related individual-capacity claims
against Voightsberger and Shannon—a First Amendment retaliation claim, Eighth
Amendment claims, and Fourteenth Amendment claims—insufficiently pleaded
under Federal Rule of Civil Procedure 8(a).
Last, the district court rejected Carter’s supervisory-liability claim because
Carter “fail[ed] to plead any policy created, promulgated, or implemented by
[Voightsberger or Shannon]” that could establish supervisory liability under § 1983.
Id. at 117; see also Dodds v. Richardson, 614 F.3d 1185, 1194–95 (10th Cir. 2010)
(explaining that supervisory liability under § 1983 requires showing affirmative link
between supervisor and constitutional violation). And it found Carter’s negligence
claim inadequately pleaded under Rule 8. Thus, because all Carter’s claims either
failed to state a claim or sought relief from immune defendants, the district court
dismissed the official-capacity compensatory claims with prejudice, the official-
capacity injunction claims without prejudice, and the individual-capacity claims
without prejudice. See § 1915(e)(2)(B). It also concluded that leave to amend would
be futile.
Carter appeals.
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Analysis
Our review is de novo. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007)
(reviewing § 1915(e)(2)(B)(ii) dismissal de novo); Guiden v. Morrow, 92 F. App’x
663, 665 (10th Cir. 2004) (reviewing § 1915(e)(2)(B)(iii) dismissal de novo); see
also Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174, 1181 (10th Cir. 2015) (noting
de novo review of Eleventh Amendment immunity). “In determining whether a
dismissal is proper, we must accept the allegations of the complaint as true and
construe those allegations, and any reasonable inferences that might be drawn from
them, in the light most favorable to the plaintiff.” Kay, 500 F.3d at 1217 (quoting
Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002)).
Carter first argues that the district court erred in concluding that WDOC and
Voightsberger and Shannon in their official capacities were immune from suit under
the Eleventh Amendment. In particular, he contends that the district court overlooked
exhibits to his complaint that he says show waiver of immunity. The exhibits he
references appear to be a 1990 contract between Wyoming and Virginia providing for
transfer of prisoners between those two states and WDOC’s Policy and Procedure
#4.000, which provides guidelines for “transfer of inmates pursuant to an interstate
compact or out-of-state contract housing.” R. 95. Carter contends that these
documents show that Wyoming “[a]ccepted [r]esponsibility of any wrong[d]oings
concerning inmates under [c]ontract and interstate[-]compact housing.” Aplt. Br. 4.
But even assuming that is true, it does not waive Eleventh Amendment immunity.
“States can voluntarily waive their immunity by choosing to invoke federal
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jurisdiction.” Arbogast, 789 F.3d at 1182. A state can also waive immunity by
unequivocally expressing an intent to submit to federal jurisdiction “by statute,
constitutional provision, or through its ‘actions, specifically, its participation in a
particular federal program.’” Id. (quoting Robinson v. Kansas, 295 F.3d 1183, 1189
(10th Cir. 2002)). And simply put, we see nothing in the contract or the WDOC
policy document that expresses Wyoming’s intent to submit to federal jurisdiction.
We therefore reject Carter’s argument that the district court erred in finding that
Eleventh Amendment immunity barred some of his claims.
Next, Carter attempts to challenge the district court’s assessment of his Eighth
Amendment deliberate-indifference claims, asserting without elaboration that the
district court “provided for my [d]eliberate[-]indifference claims an err[or] of law.”
Aplt. Br. 4. But on the next page, he accuses the district court of “never address[ing]”
such claims. Id. at 5. Aside from the fact that these two arguments are inconsistent,
the latter is incorrect; although the district court did not separately address the
deliberate-indifference claim, it collectively considered and rejected all of Carter’s
Eighth Amendment claims. And the former statement—Carter’s unadorned position
that the district court legally erred—is not an adequately presented appellate
argument. Although we construe pro se briefs liberally, we cannot create arguments
out of thin air. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (explaining that we “cannot take on the responsibility of serving as
the [pro se] litigant’s attorney in constructing arguments”); Perry v. Woodward, 199
F.3d 1126, 1141 n.13 (10th Cir. 1999) (explaining that we “will not craft a party’s
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arguments for [them]”). Thus, because Carter fails to explain how or why the district
court’s analysis is incorrect, we decline to consider Carter’s deliberate-indifference
challenge. 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.”); Nixon v. City & Cnty. of Denver, 784
F.3d 1364, 1366 (10th Cir. 2015) (noting that “first task of an appellant is to explain
to us why the district court’s decision was wrong”).
Carter also argues that the district court abused its discretion in dismissing his
complaint without allowing him an opportunity to amend his complaint. In support,
he cites Bazrowx v. Scott, 136 F.3d 1053 (5th Cir. 1998). There, the Fifth Circuit
noted that generally, “a district court errs in dismissing a pro se complaint for failure
to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to
amend.” Id. at 1054 (italics omitted). But importantly, the court in Bazrowx
ultimately found no reversible error because although the district court dismissed
without leave to amend, it also did so without prejudice, effectively allowing the
plaintiff to refile if so desired. See id. at 1054–55; cf. Denton v. Hernandez, 504 U.S.
25, 34 (1992) (holding that under a prior version of § 1915, if complaint “could be
remedied through more specific pleading, a court of appeals . . . should consider
whether the district court abused its discretion by dismissing the complaint with
prejudice or without leave to amend” (emphasis added)).
Similarly, the district court here dismissed most of Carter’s claims—the claims
for injunctive relief and the claims against Voightsberger and Shannon in their
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individual capacities—without prejudice. The only claims dismissed with prejudice
were those seeking monetary relief from WDOC and Voightsberger and Shannon in
their official capacities, and we agree with the district court that amendment would
be futile for such claims because of Eleventh Amendment immunity. See Collins, 916
F.3d at 1315 (explaining that states and state officials in their official capacity may
not be sued in federal court absent consent, abrogation, or application of the Ex Parte
Young exception to state sovereign immunity); Curley v. Perry, 246 F.3d 1278,
1281–82 (10th Cir. 2001) (affirming dismissal of pro se complaint for failure to state
a claim under § 1915(e)(2)(B)(ii) with prejudice and without leave to amend because
no amendment could cure defect in complaint). We thus find no reversible error on
the district court’s decision not to provide Carter with an opportunity to amend.
Carter relatedly argues that the district court denied him access to the courts by
dismissing his complaint without requiring defendants to file an answer and without
“even say[ing] if this was a screening process.” Aplt. Br. 3. Yet on the contrary, the
district court expressly stated that it was “undertak[ing] an initial review under . . .
§ 1915.” R. 111. And doing so was entirely proper, given § 1915(e)(2)’s mandate that
“the court shall dismiss the case at any time” if the complaint fails to state a claim or
seeks monetary relief from an immune defendant. 2
2
We have also held “that sua sponte dismissal of a meritless complaint that
cannot be salvaged by amendment comports with due process and does not infringe
the right of access to the courts.” Curley, 246 F.3d at 1284.
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Finally, Carter asserts that the district court erred by failing “to address any
and all other claims [he d]id not articulate in the complaint.” Aplt. Br. 5. But a
district court is not obligated to advocate for a pro se litigant by creating and ruling
on claims not asserted in the complaint. See Garrett, 425 F.3d at 840. We thus find
no error on this basis. And for the same reason, we reject Carter’s request that we
consider “[a]ny and [a]ll other causes, claims, a[nd] arguments [n]ot articulated in the
appeal.” Aplt. Br. 4.
Conclusion
Because Carter’s arguments on appeal either fail on their merits or are
inadequately briefed, we affirm the district court’s order. 3 As a final matter, we grant
Carter’s motion to proceed IFP on appeal.
Entered for the Court
Nancy L. Moritz
Circuit Judge
3
Carter asks that we “provide court[-]appointed counsel.” Aplt. Br. 5. But
civil litigants do not have a right to court-appointed counsel, and given our
disposition of this appeal, we decline to appoint counsel here. See Johnson v.
Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006).
9