Watson v. Hollingsworth ( 2018 )


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  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                           July 5, 2018
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    PIERRE WATSON,
    Plaintiff - Appellant,
    v.                                                          No. 16-3008
    (D.C. No. 5:13-CV-03035-EFM)
    LISA HOLLINGSWORTH, Warden, USP-                             (D. Kan.)
    Leavenworth, in her individual and official
    capacity; RICHARD W. SCHOTT,
    Regional Counsel, in his individual and
    official capacity; MICHAEL K. NALLEY,
    Regional Director, in his individual and
    official capacity,
    Defendants - Appellees,
    and
    JOSH EVANS, Senior Officer Specialist,
    USP-Leavenworth, in his individual and
    official capacities,
    Defendant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before HARTZ, MURPHY, and PHILLIPS, 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. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971), the Supreme Court authorized private citizens to seek damages for
    constitutional torts committed by federal officials. Courts disallow Bivens claims
    against federal officials acting in their official capacities and limit liability to the
    federal employee’s own acts. In this case, the district court dismissed Pierre Watson’s
    official-capacity Bivens claims under Fed. R. Civ. P. 12(b)(1). The district court
    dismissed Watson’s individual-capacity Bivens claims on summary judgment because
    Watson had failed to establish any personal participation by the Defendants and had
    failed to present any evidence showing a constitutional violation.1 Watson now
    appeals and moves (1) to proceed in forma pauperis (IFP) and (2) for appointment of
    appellate counsel. We affirm the district court’s dismissal, grant Watson’s IFP
    motion, and deny his motion to appoint counsel.
    BACKGROUND
    On February 28, 2013, Watson filed this lawsuit purporting to assert individual
    and official-capacity Bivens claims against Josh Evans, Lisa Hollingsworth, Richard
    W. Schott, and Michael K. Nalley. On January 21, 2014, Watson amended his
    Complaint to add additional factual allegations, again asserting Bivens claims against
    the same Defendants. Watson’s allegations derived from a June 27, 2011 altercation
    between Watson and corrections officer Evans.
    1
    Josh Evans is identified in the caption as a Defendant, but not as one of the
    Defendants-Appellees. As noted in this order, Watson never served Evans with
    process, and Evans never personally appeared and defended. So the discussion of the
    district court’s rulings on the merits pertains to the three Defendants-Appellees,
    Hollingsworth, Schott, and Nalley.
    2
    In his Amended Complaint, Watson alleged that Evans had physically
    assaulted him, causing severe head trauma. Watson alleged that Evans had repeatedly
    punched him in the face while Watson was handcuffed. Watson also alleged that
    Evans had “grabbed [his] throat . . . very tightly . . . to the point of not being able to
    breath [sic].” R. Vol. 1 at 125. Watson further alleged that Evans had slammed his
    face into the ground and that other unknown officers had repeatedly struck him in the
    head even though he had been restrained on the floor for minutes.
    Watson does not allege that Hollingsworth, Schott, or Nalley (collectively
    referred to as Defendants-Appellees) participated in this attack. Instead, Watson
    merely alleges that Hollingsworth “conspire[d] with [Schott and Nalley] to deprive
    [Evans] of his equal protection of the laws as guaranteed by the 8th and 14th
    Amendments of the United States Constitution.” R. Vol. 1 at 126.
    Hollingsworth was the warden at the USP Leavenworth correctional facility
    during Watson’s incarceration. Schott was the Bureau of Prisons’ Regional Counsel,
    and Nalley was the Bureau of Prisons’ Regional Director. Watson alleges that
    Hollingsworth “refused to answer [his] Request for Administrative Remedy” and
    “allowed C/O Evans to assault Plaintiff and not be disciplined for his infliction of
    pain.” R. Vol. 1 at 126–27. As for Schott and Nalley, Watson alleges that they, along
    with Hollingsworth, “refused to answer [his] grievances, letters, and continued to
    keep [him] in the Special Housing Unit (“SHU”) under investigation pending
    prosecution against Plaintiff.” Id. at 127.
    3
    After Watson filed his Amended Complaint, the district court issued
    summonses for all four Defendants. Watson successfully served Schott and Nalley.
    But Hollingsworth and Evans were no longer employed at USP Leavenworth, and
    Watson never served them with a Summons and Complaint. Even though she was
    never served, Hollingsworth appeared and participated in this action. Evans has never
    been served and has never appeared.
    Hollingsworth, Schott, and Nalley responded to Watson’s Complaint by filing
    a motion to dismiss, or in the alternative, a motion for summary judgment. In their
    motion, Defendants-Appellees asserted that the district court should dismiss
    Watson’s official-capacity Bivens claims for lack of subject-matter jurisdiction under
    Fed. R. Civ. P. 12(b)(1). Next, Defendants-Appellees asserted that the district court
    should dismiss all of Watson’s individual-capacity Bivens claims under Fed. R. Civ.
    P. 12(b)(6) because Watson had failed to exhaust his administrative remedies. Third,
    Defendants-Appellees argued that the district court should grant summary judgment
    based on qualified-immunity grounds. Finally, Defendants-Appellees argued that the
    district court should dismiss the Bivens claims because Watson had failed to show
    any personal participation by Defendants-Appellees as required to state a claim under
    Bivens.
    The district court concluded that it lacked jurisdiction over the official-
    capacity Bivens claims, which are claims against the United States for which it had
    not waived sovereign immunity. Thus, it dismissed those claims under Fed. R. Civ. P.
    12(b)(1). Next, noting that both parties had attached materials outside of the
    4
    Complaint, the district court considered the individual-capacity Bivens claims under
    the summary-judgment standard. Under the summary-judgment standard, it rejected
    the Government’s argument that Watson had failed to exhaust his administrative
    remedies. Construing Watson’s claims broadly, the district court concluded that
    Watson had alleged that Defendants-Appellees violated his constitutional rights by
    (1) failing to discipline Evans for his alleged assault on Watson; (2) failing to
    respond to Watson’s correspondence or his agency grievances related to the assault;
    and (3) placing him in the Special Housing Unit after the alleged assault. The district
    court also construed Watson’s Complaint to allege that Hollingsworth had covered up
    medical reports and attempted to destroy video footage of the alleged assault.
    Addressing these claims, the district court first concluded that Watson had
    presented insufficient evidence to impose supervisory liability under Bivens. Next, it
    concluded that the Defendants’-Appellees’ alleged failures to respond to Watson’s
    grievances and their decision to place him in the Special Housing Unit would not
    amount to constitutional violations. And finally, the district court concluded that
    Watson had presented no evidence that Hollingsworth had covered up any medical
    reports or attempted to destroy video footage. Thus, the district court granted
    summary judgment in favor of the Defendants-Appellees and dismissed all the claims
    against them. The district court waited to enter a judgment because Watson’s claims
    against Evans survived.
    On December 17, 2014, the same day it dismissed Watson’s claims against
    Defendants-Appellees Hollingsworth, Schott, and Nalley, the district court issued a
    5
    Notice and Order Regarding Service of Defendant Evans. In that Order, the district
    court provided Watson thirty days to serve Evans or to provide the U.S. Marshals
    Service with a current location or address for Evans. Watson didn’t respond. On
    December 2, 2015, almost a year later, the district court issued a Notice and Order to
    Show Cause requiring Watson, on or before December 28, 2015, to show why his
    case against Evans should not be dismissed for lack of prosecution under Fed. R. Civ.
    P. 41(b). Watson responded by asking the district court for a 30-day extension of
    time. The district court granted Watson an extension until January 28, 2016 to
    respond to its order to show cause. Watson didn’t respond to the district court’s order
    to show cause.
    On February 5, 2016, after providing Watson multiple opportunities to serve
    Evans, the district court dismissed Watson’s claims against Evans for failure to
    prosecute. Watson appealed the district court’s dismissal of his claims against
    Defendants.
    DISCUSSION2
    I.    Watson’s Notice of Appeal
    2
    Because Watson appears pro se, “we construe his pleadings liberally.”
    Ledbetter v. City of Topeka, 
    318 F.3d 1183
    , 1187 (10th Cir. 2003). In doing so, we
    are more lenient with deficient pleadings, 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 the litigant’s attorney in constructing arguments and searching the record.” 
    Id.
     And
    we will not “supply additional factual allegations to round out a plaintiff’s complaint
    or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 
    113 F.3d 1170
    , 1173–74 (10th Cir. 1997).
    6
    On appeal, the Government argues that Watson’s Notice of Appeal challenges
    the district court’s repeated denials of his requests for appointment of counsel, not
    the dismissal of Watson’s claims against Hollingsworth, Nalley, and Schott. From
    this, the Government argues that we lack appellate jurisdiction to review the district
    court’s dismissal of Watson’s claims. We disagree.
    “Rule 3 of the Federal Rules of Appellate Procedure conditions federal
    appellate jurisdiction on the filing of a timely notice of appeal.” Smith v. Barry, 
    502 U.S. 244
    , 245 (1992). Rule 3(c) specifies the required content of notices of appeal:
    they must “specify the party or parties taking the appeal”; “designate the judgment,
    order or part thereof being appealed”; and “name the court to which the appeal is
    taken.” Fed. R. App. P. 3(c). We liberally construe these requirements, meaning that
    even if the filed papers are “technically at variance with the letter of [Rule 3], a court
    may nonetheless find that the litigant has complied with the rule if the litigant’s
    action is the functional equivalent of what the rule requires.” Smith, 
    502 U.S. at 248
    (quoting Torres v. Oakland Scavenger Co., 
    487 U.S. 312
    , 316–17 (1988)). “While a
    notice of appeal must specifically indicate the litigant’s intent to seek appellate
    review, . . . the purpose of this requirement is to ensure that the filing provides
    sufficient notice to other parties and the courts.” 
    Id.
     If any “document filed within the
    time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice
    of appeal.” 
    Id.
     at 248–49. To this already lenient standard, we add that Watson filed
    his pleadings pro se, requiring us to hold his pleadings to a less stringent standard
    than formal pleadings drafted by lawyers. See Hall v. Bellmon, 
    935 F.2d 1106
    , 1110
    7
    (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally and held
    to a less stringent standard than formal pleadings drafted by lawyers.”).
    On December 31, 2015, before the district court dismissed the claims against
    Evans but after it decided the merits of Watson’s claims against the Defendants-
    Appellees, Watson filed a notice of appeal. In the Notice of Appeal, Watson said that
    he was appealing the district court’s orders denying him counsel. Upon receipt of the
    Notice of Appeal, we abated the appeal because Watson had filed a separate motion
    asking the district court to reconsider its order dismissing Watson’s claims against
    Evans and the Defendants-Appellees, which motion was still pending before the
    district court. On February 5, 2016, after dismissing the claims against Evans, the
    district court entered judgment in favor of the Defendants-Appellees. Once the
    district court dismissed the claims against Evans, there were “no claims or defendants
    remaining in this matter,” so the district court closed the case and we lifted the
    abatement of Watson’s December 15 appeal. R. Vol. 1 at 9. On March 1, 2016,
    within 30 days of the district court’s judgment, Watson filed his Opening Brief,
    stating that he was appealing the district court’s dismissal of his claims. See Opening
    Br. at 3 (listing first issue as “Dismissal of defendants from Civil Suit.”). Because
    Watson filed his Opening Brief within 30 days from the date of the Judgment, it is
    effective as a notice of appeal. Smith, 
    502 U.S. at 249
     (“[The Federal Rules] do not
    preclude an appellate court from treating a filing styled as a brief as a notice of
    appeal . . . if the filing is timely under Rule 4 and conveys the information required
    by Rule 3(c).”).
    8
    “Even if a notice fails to properly designate the order from which the appeal is
    taken, this Court has jurisdiction if the appellant’s intention was clear.” Fleming v.
    Evans, 
    481 F.3d 1249
    , 1253–54 (10th Cir. 2007); see also Sines v. Wilner, 
    609 F.3d 1070
    , 1074 (10th Cir. 2010). The clear intent of Watson’s Opening Brief was to
    appeal the district court’s order dismissing his claims against Evans and the
    Defendants-Appellees.3 “[W]e should not be hypertechnical in ruling that a notice of
    appeal does not challenge a judgment or order that the appellant clearly wished to
    appeal.” Sines, 
    609 F.3d at 1074
    . Rather, “[a] mistake in designating the judgment
    appealed from is not always fatal, so long as the intent to appeal from a specific
    ruling can fairly be inferred by probing the notice and the other party was not misled
    or prejudiced.” 
    Id.
     Taken together with his Notice of Appeal, we construe Watson’s
    Opening Brief as the functional equivalent of the notice of appeal designating the
    district court’s judgment. Thus, we have jurisdiction to consider the district court’s
    dismissal of Watson’s claims against Defendants.
    II.   Official-Capacity Bivens Claims
    Watson sued Hollingsworth, Schott, and Nalley in their individual and official
    capacities. The district court dismissed all Bivens claims against them in their official
    capacity, concluding that the United States had not waived sovereign immunity for
    those claims, a prerequisite to the district court’s subject-matter jurisdiction. We
    review de novo a district court’s dismissal for lack of subject-matter jurisdiction
    3
    Watson does not contend that the district court erred by dismissing Evans for
    lack of prosecution. Nor does Watson contest that he failed to serve Evans with
    process.
    9
    under Fed. R. Civ. P. 12(b)(1). Becker v. Ute Indian Tribe of the Uintah & Ouray
    Reservation, 
    770 F.3d 944
    , 946 (10th Cir. 2014). We conclude that the district court
    properly dismissed Watson’s official-capacity Bivens claims.
    “There is no such animal as a Bivens suit against a public official . . . in his or
    her official capacity. Instead, any action that charges such an official with
    wrongdoing while operating in his or her official capacity . . . operates as a claim
    against the United States.” Simmat v. U.S. Bureau of Prisons, 
    413 F.3d 1225
    , 1231
    (10th Cir. 2005) (quoting Farmer v. Perrill, 
    275 F.3d 958
    , 963 (10th Cir. 2001)). And
    “[s]overeign immunity . . . shields the United States, its agencies, and its officers
    acting in their official capacity from suit.” Normandy Apartments, Ltd. v. U.S. Dep’t
    of Hous., 
    554 F.3d 1290
    , 1295 (10th Cir. 2009).
    This defense is jurisdictional and deprives courts of subject-matter
    jurisdiction. 
    Id.
     The party seeking to assert a claim against the government must
    point to a specific waiver of sovereign immunity to establish jurisdiction. 
    Id.
     Even
    when we liberally construe Watson’s Amended Complaint, Watson has failed to
    identify any such waiver of immunity. And on appeal, Watson doesn’t argue that the
    district court erred in dismissing the claims against Defendants-Appellees in their
    official capacity. Thus, sovereign immunity deprived the district court of jurisdiction
    to entertain any of Watson’s claims against Defendants-Appellees in their official
    capacities. See Peterson v. Timme, 621 F. App’x 536, 541 (10th Cir. 2015)
    (unpublished) (affirming dismissal of the official-capacity claims for lack of subject-
    matter jurisdiction).
    10
    III.   Individual-Capacity Bivens Claims
    When public officials inflict constitutional injuries in the course of performing
    their duties, they may be individually liable for damages. Pahls v. Thomas, 
    718 F.3d 1210
    , 1225 (10th Cir. 2013). A Bivens action provides a “private action for damages
    against federal officers alleged to have violated a citizen’s constitutional rights.”
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 675 (2009) (quoting Correctional Servs. Corp. v.
    Malesko, 
    534 U.S. 61
    , 66 (2001)).
    The district court granted Defendants-Appellees summary judgment on
    Watson’s individual-capacity Bivens claims based on their lack of personal
    participation and their qualified-immunity defense. We review de novo a district
    court’s grant of summary judgment, applying the same standards as apply in the
    district court. Thomas v. Durastanti, 
    607 F.3d 655
    , 662 (10th Cir. 2010). Summary
    judgment is appropriate only where there is no genuine dispute as to any material fact
    and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
    A.    Lack of personal participation
    At the heart of Watson’s Complaint is his attempt to hold someone responsible
    for Evans’s alleged assault. But it is undisputed that the Defendants-Appellees played
    no part in the alleged attack. To establish Bivens liability, Watson must provide
    evidence that an individual directly and personally participated in the purported
    constitutional violation. Pahls, 718 F.3d at 1226. “Government officials may not be
    11
    held liable for the unconstitutional conduct of their subordinates under a theory of
    respondeat superior.” Iqbal, 
    556 U.S. at 676
    .
    But we have recognized that government officials may be held responsible for
    constitutional violations under a theory of supervisory liability. 
    Id.
     To prevail on a
    suit against a supervisor, Watson must show “(1) the defendant promulgated, created,
    implemented or possessed responsibility for the continued operation of a policy that
    (2) caused the complained of constitutional harm, and (3) acted with the state of mind
    required to establish the constitutional deprivation.” Dodds v. Richardson, 
    614 F.3d 1185
    , 1198 (10th Cir. 2010).
    Here, Watson doesn’t allege, much less present any evidence of, a policy
    created or implemented by the Defendants-Appellees that caused him harm. Further,
    Watson’s allegations against the Defendants-Appellees relate to conduct that
    happened after Evans allegedly assaulted him. Thus, to the extent Watson attempts to
    hold the Defendants-Appellees responsible for Evans’s alleged assault, the district
    court properly granted summary judgment in their favor.
    B.     Qualified Immunity
    After dismissing Watson’s claims based on Evans’s conduct, we are left with
    three allegations: (1) that the Defendants-Appellees failed to respond to various
    correspondence or agency grievances related to the assault; (2) that the Defendants-
    Appellees placed him in the Special Housing Unit after the alleged assault; and (3)
    that Hollingsworth covered up medical reports and attempted to destroy video
    footage of the assault. The district court awarded the Defendants-Appellees qualified
    12
    immunity on each of these claims because Watson had failed to allege conduct on the
    part of the Defendants-Appellees that amounted to a constitutional violation.
    “Public officials enjoy qualified immunity in civil actions that are brought
    against them in their individual capacities and that arise out of the performance of
    their duties.” Pahls, 718 F.3d at 1227. We review de novo a grant of summary
    judgment based on qualified immunity. Puller v. Baca, 
    781 F.3d 1190
    , 1196 (10th
    Cir. 2015). “[Q]ualified immunity . . . is both a defense to liability and a limited
    ‘entitlement not to stand trial or face the other burdens of litigation.’” Iqbal, 
    556 U.S. at 672
     (quoting Mitchell v. Forsyth, 
    472 U.S. 511
    , 526 (1985)). Once a defendant
    asserts qualified immunity, “the burden shifts to the plaintiff to establish (1) a
    violation of a constitutional right (2) that was clearly established” at the time of the
    violation. Puller, 781 F.3d at 1196 (citing Cortez v. McCauley, 
    478 F.3d 1108
    , 1114
    (10th Cir. 2007) (en banc)).
    To meet the “heavy two-part burden” necessary to overcome a qualified-
    immunity defense, plaintiffs must point to admissible evidence in the record. Medina
    v. Cram, 
    252 F.3d 1124
    , 1128 (10th Cir. 2001). Watson “may not rest upon the mere
    allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986) (quoting First Nat’l Bank of Ariz. V. Cities Serv. Co., 
    391 U.S. 253
    ,
    288 (1968)). Instead, Watson must “present sufficient evidence in specific, factual
    form for a jury to return a verdict in [his] favor.” Bacchus Indus., Inc. v. Arvin Indus.,
    Inc., 
    939 F.2d 887
    , 891 (10th Cir. 1991).
    13
    In his Appellate Brief, Watson states that he “is not aware of the law that the
    District Court applied that was wrong.” Appellant’s Opening Br. at 4. Without
    providing any additional argument, Watson claimed that “there is proof and evidence
    that shows all defendants violated plaintiffs [sic] constitutional rights.” 
    Id.
     And
    Watson makes no attempt to show any specific constitutional rights that Defendants
    violated.
    We have reviewed all of the documents submitted by Watson in response to
    Defendants’ summary-judgment motion. Watson has presented no evidence to
    support his allegations that Defendants-Appellees failed to respond to various
    correspondence or agency grievances related to the assault or that Hollingsworth
    covered up medical reports and destroyed video footage of the assault. In response to
    the summary-judgment motions of Defendants-Appellees, Watson instead submitted
    incident reports, documents related to his administrative remedies, and
    correspondence between his mother and Hollingsworth. Nothing in these documents
    even remotely suggests that Hollingsworth covered up medical records. And contrary
    to Watson’s assertions, his submitted evidence shows that Defendants-Appellees
    responded to his administrative-remedy requests. But even if his evidence supported
    his claims, that conduct would not have amounted to a constitutional violation. Thus,
    the district court didn’t err in granting summary judgment against these claims.
    We also agree with the district court that Watson has failed to show a
    constitutional violation based on Defendants-Appellees having placed him in the
    Special Housing Unit. See Stallings v. Werholtz, 492 F. App’x 841, 845 (10th Cir.
    14
    2002) (unpublished) (confinement in administrative detention did not impose a
    constitutional deprivation of liberty interest); Johnson-Bey v. Ray, 38 F. App’x 507,
    509 (10th Cir. 2002) (unpublished) (concluding that plaintiff failed to allege
    constitutional violation from placement in the Special Housing Unit). For these
    reasons, we agree with the district court that Watson has failed to present sufficient
    evidence to survive Defendants’-Appellees’ summary-judgment motion on qualified-
    immunity grounds.
    IV.   Request for Counsel
    Watson also challenges the district court’s repeated denials of his request for
    counsel. We review the denial of appointment of counsel in a civil case for an abuse
    of discretion. Rucks v. Boergermann, 
    57 F.3d 978
    , 979 (10th Cir. 1995). “Only in
    those extreme cases where the lack of counsel results in fundamental unfairness will
    the district court’s decision be overturned.” Hill v. SmithKline Beecham Corp., 
    393 F.3d 1111
    , 1115 (10th Cir. 2004) (quoting McCarthy v. Weinberg, 
    753 F.2d 836
    , 838
    (10th Cir. 1985)). Unlike for criminal defendants, “[t]here is no constitutional right to
    appointed counsel” for civil plaintiffs. Durre v. Dempsey, 
    869 F.2d 543
    , 547 (10th
    Cir. 1989). Instead, a court’s discretion to appoint counsel stems from 
    28 U.S.C. § 1915
    (e)(1), which allows the district court to appoint counsel for indigent parties.
    
    Id.
     We have directed district courts to evaluate, in connection with a request to
    appoint counsel under § 1915, the “merits of a prisoner’s claims, the nature and
    complexity of the factual and legal issues, and the prisoner’s ability to investigate the
    facts and present his claims.” Hill, 
    393 F.3d at 1115
    .
    15
    Watson filed two motions to appoint counsel, both of which were denied by
    the district court, and two motions to reconsider the district court’s denials. The first
    time the district court denied Watson’s motion, it said that it had “examined the
    record and declines to appoint counsel at this point in the development of the matter.
    The court therefore will deny the request at this time but may revisit this request in
    the future.” R. Vol. 1 at 116. After Watson’s second motion, the district court
    considered the proper factors and noted that Watson “has shown his ability to present
    the operative facts and to frame his legal claims,” that the legal issues were not
    “unusually complex or novel,” and that Watson was familiar with the administrative
    procedures. 
    Id.
     at 361–62. On appeal, Watson presents no argument explaining how
    the district court erred, instead simply repeating his conclusions that the district court
    should have appointed counsel.
    We conclude that the district court did not abuse its discretion in denying
    Watson’s motions to appoint counsel. In denying Watson’s motions to appoint
    counsel, the district court addressed the merits of Watson’s claims, the nature and
    complexity of the factual and legal issues, and his ability to investigate facts and
    present his claims. 
    Id.
     We agree with the district court that none of the issues in this
    case are unusually complex and Watson was able to present his arguments. And, as
    discussed above, Watson’s claims against the Defendants lack merit and we agree
    with the district court’s summary-judgment grant. See McCarthy, 
    753 F.2d at 838
    (“The burden is upon the applicant to convince the court that there is sufficient merit
    to his claim to warrant the appointment of counsel.”). Finally, Watson presents no
    16
    argument that the denial of counsel resulted in fundamental unfairness. Thus, the
    district court didn’t abuse its discretion. For the same reasons, we deny Watson’s
    motion for appointment of counsel on appeal.
    V. IFP Motion
    We have reviewed Watson’s IFP motion and conclude that “he has
    demonstrated ‘a financial inability to pay the required fees and the existence of a
    reasoned, nonfrivolous argument on the law and facts in support of the issues raised
    on appeal.’” McIntosh v. U.S. Parole Comm’n, 
    115 F.3d 809
    , 812–13 (10th Cir.
    1997) (quoting DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir. 1991)). So we
    grant his motion.
    CONCLUSION
    For these reasons, the district court’s judgment is affirmed. We grant Watson’s
    IFP motion but deny his motion for appointment of counsel. We remind Watson that
    he remains obligated to continue making partial payments until the entire fee has
    been paid.
    Entered for the Court
    Gregory A. Phillips
    Circuit Judge
    17