Appellate Case: 23-8026 Document: 010110979703 Date Filed: 01/08/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 8, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
MARTY WAYNE RHODES,
Plaintiff - Appellant,
v. No. 23-8026
(D.C. No. 1:22-CV-00239-SWS)
DANIEL SHANNON, Wyoming (D. Wyo.)
Department of Corrections Director;
EDDIE WILSON, Wyoming Department
of Corrections Prison Administrator;
SETH NORRIS, Wyoming Department of
Corrections State Penitentiary Deputy
Warden; JANELLE THAYER, Wyoming
Department of Corrections State
Penitentiary Housing Manager,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
_________________________________
Marty Wayne Rhodes, an inmate in the Wyoming Department of Corrections
(WDOC), appeals the district court’s order dismissing his 42 U.S.C. § 1983 civil
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 23-8026 Document: 010110979703 Date Filed: 01/08/2024 Page: 2
rights action against the above-named WDOC and Wyoming State Penitentiary
(WSP) employees. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
The following facts are taken from Rhodes’s original and amended complaints
and the supporting documents he submitted to the district court.
Rhodes alleged that he was the victim of two assaults that violated the Prison
Rape Elimination Act (PREA), 34 U.S.C. § 30301 et seq. First, in January 2020, a
prison employee took away his clothing during a search as part of a urinalysis. The
employee committed voyeurism after Rhodes provided the sample and did not return
his clothing until about fifteen minutes later. Rhodes reported the incident to prison
officials. WSP staff investigated the matter and found the allegations were
unsubstantiated. Rhodes believed it was improper for staff to “investigate one of
their own,” R. at 353, so he filed a grievance. He also filed a report with the PREA
hotline. The grievance was denied. Rhodes did not appeal the denial because the
prison was on lockdown from March 2020 to mid-2022 due to Covid-19, but he
started making reports and filing grievances about this incident again in 2022.
The second assault occurred in July 2022, when Rhodes was in administrative
segregation. Another inmate grabbed his breasts and made a rude comment. Rhodes
reported the incident. After an investigation, WSP staff told Rhodes his complaint
was substantiated and that the other inmate would be charged administratively. The
other inmate was then placed in a different pod than Rhodes.
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Rhodes filed numerous complaints and grievances regarding these and other
issues, including his housing placement, access to treatment programs, and how
prison staff handled his complaints. Staff provided explanations for denying his
requests for housing transfers and placement in treatment programs, including that he
was ineligible because of his disciplinary history. In August 2022, he filed a
grievance alleging that after he filed the PREA complaint and grievances, prison
officials retaliated against him by denying housing requests, filing baseless
disciplinary charges, denying grievances, denying requests for protective custody,
and taking away previously awarded good time credits. He asked prison officials to
stop retaliating against him, place him in appropriate programming, restore his good
time, and transfer him to an Adult Community Corrections facility in preparation for
his release into the community in the future. The grievance was denied, as were his
administrative appeals.
Rhodes then filed the underlying lawsuit. He raised two claims against all
defendants in both their individual and official capacities. His first claim alleged that
defendants violated his rights under the PREA. The second claim alleged that they
retaliated against him for exercising his First Amendment right to file reports and
grievances.
Performing its 28 U.S.C. § 1915A(a) screening function, the district court
dismissed Rhodes’s claim under the PREA against all defendants for failure to state a
claim, see §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), explaining that the statute does not
create a private cause of action for prisoners to sue correctional staff for alleged
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sexual misconduct or other alleged PREA violations. The court dismissed the
retaliation claim against all defendants in their official capacities on sovereign
immunity grounds, and it dismissed the individual-capacity claims against two
defendants who are not parties to this appeal because the complaint did not identify
any personal actions by them as part of the retaliation claim. Finally, the court noted
Rhodes’s request for relief in the form of treatment for chronic medical issues he
claimed to suffer from and his related reference to the Eighth Amendment did not
include sufficient factual allegations either to state a claim for violations of his
Eighth Amendment rights or to support a request for medical care as relief for
defendants’ alleged retaliation. Rhodes filed a motion for reconsideration which was
denied.
Rhodes then filed an amended complaint asserting a First Amendment
retaliation claim against the remaining four defendants—Shannon, Wilson, Norris,
and Thayer—in their individual capacities. Defendants filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Rhodes did not
plausibly allege a First Amendment retaliation claim. Specifically, they argued that
he pleaded no facts establishing that their actions were substantially motivated by his
constitutionally protected conduct of filing PREA complaints and grievances, and
that his own exhibits established non-retaliatory reasons for their actions.
Defendants also sought dismissal of the requests for injunctive relief on the ground
that they involve parties and claims outside the court’s jurisdiction. The district
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court granted the motion on both grounds and dismissed the amended complaint.
This appeal followed.
II. Standard of Review
Because Rhodes represents himself, “we construe his pleadings liberally.”
Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). In so doing, we
make some allowances for deficiencies, such as unfamiliarity with pleading
requirements, failure to cite appropriate legal authority, and confusion of legal
theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005). But we “cannot take on the responsibility of serving as [his] attorney in
constructing arguments and searching the record.” Id.
We review de novo the dismissal of a § 1983 complaint for failure to state a
claim under Rule 12(b)(6). Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010).
To survive the defendants’ motion to dismiss, Rhodes was required to allege facts
sufficient “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted). Under this standard,
we accept all well-pled factual allegations as true and view them in the light most
favorable to Rhodes. Acosta v. Jani-King of Okla., Inc., 905 F.3d 1156, 1158 (10th
Cir. 2018) (internal quotation marks omitted). But “the tenet that a court must
accept” well-pled factual allegations as true “is inapplicable to legal conclusions,” so
we are not bound by Rhodes’s recital of legal principles supported by conclusory
statements. Iqbal, 556 U.S. at 678. In evaluating whether Rhodes’s factual
allegations met the plausibility standard, we consider both his complaint and the
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documents he filed with his complaint. Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001); see Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all purposes.”).
III. Discussion
Rhodes appeals the order dismissing his retaliation claim against defendants
Shannon, Wilson, Norris, and Thayer. He mentions the district court’s order
dismissing his other claims on screening, but he does not challenge the dismissal of
his PREA claim, official-capacity claim, and retaliation claim against the other two
defendants named in the original complaints. He also does not challenge the district
court’s conclusions that his request for medical treatment did not state an Eighth
Amendment claim and that the court lacked jurisdiction to grant some of his requests
for injunctive relief. He has thus waived any challenge he might have had to those
rulings. See Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir.
2004) (“Issues not raised in the opening brief are deemed abandoned or waived.”
(internal quotation marks omitted)). As a result, we limit our analysis to the Rule
12(b)(6) dismissal of the retaliation claim against defendants Shannon, Wilson,
Norris, and Thayer.
“Prison officials may not retaliate against or harass an inmate because of the
inmate’s exercise of [a constitutional right].” Smith v. Maschner, 899 F.2d 940, 947
(10th Cir. 1990). “The filing of prison grievances is constitutionally protected
activity.” Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018). Thus, prison
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officials may not retaliate against inmates for filing administrative grievances.
Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991).
To state a First Amendment retaliation claim, Rhodes had to allege that (1) he
“was engaged in constitutionally protected activity”; (2) the defendants’ actions
caused him “to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity”; and (3) “the defendants’ adverse action was
substantially motivated as a response to [his] exercise of constitutionally protected
conduct.” Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). “A
plaintiff’s subjective beliefs about why the government took action, without facts to
back up those beliefs, are not sufficient” to establish retaliatory motive. Nielander v.
Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1165 (10th Cir. 2009). Thus to satisfy the
third prong of this test, Rhodes had to allege “specific facts” showing that “but for
the retaliatory motive, the incidents to which he refers . . . would not have taken
place.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (internal quotation
marks omitted). His complaint had to “be factual and not conclusory” because
“[m]ere allegations of constitutional retaliation will not suffice.” Frazier v. Dubois,
922 F.2d 560, 562 n.1 (10th Cir. 1990).
Applying these standards, the district court held that Rhodes “failed to allege
specific facts showing retaliation.” R. at 442. It described his allegations as
“conclusory” and a “formulaic recitation of a retaliation claim,” id. at 443, explaining
that he pleaded no facts supporting either the conclusion that defendants “acted out of
an intent to retaliate against [him] for earlier grievances,” id., or a “plausible
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inference of retaliatory motive,” id. at 444. And the court observed that Rhodes
“received alternative, non-retaliatory explanations for not receiving his desired
programming, housing, or institution preferences when requested.” Id. at 446. The
court recognized that Rhodes had “lodged complaints and grievances since 2020,”
and that the challenged actions occurred in the same time frame. But it held that the
“‘temporal proximity between the protected speech and the alleged retaliatory
conduct, without more, does not allow for an inference of a retaliatory motive.’” Id.
at 445 (alteration omitted) (citing Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th Cir.
2014). Finally, the court acknowledged Rhodes’s references to materials identifying
various actions as examples of PREA-related retaliation, but explained that those
references “do not eliminate the requirement that [he] must plead specific facts
demonstrating a causal connection between [his] constitutionally protected conduct
and the retaliatory actions themselves.” Id. at 448.
In his brief, Rhodes provides a factual narrative regarding the alleged PREA
violations, the prison’s handling of his PREA complaints, the denials of his requests
for housing transfers and placement in treatment programs, and the denial of his
grievances. He also refers to the same materials he cited in his complaint, which
provide examples of potentially retaliatory conduct. He then quotes excerpts from
caselaw on a variety of topics without explaining how those authorities apply to his
case. But his brief does not explain the district court’s reason for dismissal—that he
failed to allege specific facts showing that defendants acted with the intent to
retaliate against him—was wrong. He insists his factual allegations and supporting
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documents “were 100% proof” that defendants retaliated against him, Aplt. Opening
Br. at 9, but he points to no specific allegations in the amended complaint and
nothing in the supporting documents establishing a causal connection between his
grievances and defendants’ actions.
Rhodes’s factual narrative is not a “substitute for legal argument.” Nixon v.
City & Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015). And merely listing
issues and authority, with no citation to the record and no analysis, is not “adequate
briefing.” Garrett, 425 F.3d at 841 (internal quotation marks omitted). Because
Rhodes has failed to show any reversible error, we affirm the district court’s
judgment. See Nixon, 784 F.3d at 1366 (affirming dismissal of claim where
appellant’s brief failed to challenge the basis for the district court’s ruling); see also
Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (stating that we do not
address a district court’s reasoning when the appellant’s opening brief does not
challenge it).
IV. Conclusion
The judgment is affirmed. We take no action on Rhodes’s notices to the court
regarding events that allegedly occurred after entry of judgment.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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