Vreeland v. Griggs , 663 F. App'x 597 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS September 28, 2016
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
DELMART E.J.M. VREELAND, II,
Plaintiff - Appellant,
v. No. 15-1377
(D.C. No. 1:12-CV-01921-PAB-KMT)
CYNTHIA COFFMAN, Attorney (D. Colo.)
General; RICHARD RAEMISCH,
Executive Director, CDOC;
SERGEANT GRIGGS, CDOC/BVCF,
Mailroom,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MORITZ, Circuit Judges. **
*
This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
**
After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties' request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case
is therefore submitted without oral argument.
Pro se 1 prisoner Delmart E.J.M. Vreeland, II filed a civil-rights action
against various defendants under 42 U.S.C. § 1983. After substantial motions
practice, the district court granted summary judgment against Mr. Vreeland on all
claims. Mr. Vreeland now appeals from several orders of the district court,
including its order granting summary judgment. Additionally, Mr. Vreeland
moves this court for appointment of counsel on appeal. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm the challenged district court orders and
deny Mr. Vreeland’s motion for appointment of counsel.
I
Mr. Vreeland’s appeal pertains to the alleged mishandling of his mail on
three occasions by prison officials while he was incarcerated in the Buena Vista
Correctional Facility (“BVCF”) of the Colorado Department of Corrections
(“CDOC”). In August 2010, Mr. Vreeland received a package from an attorney
named Michael Heher. Facility legal assistant, Celia Schwartz, inspected the
package for contraband. She determined that twelve pages (out of a thirty-two-
pound package) contained the personal contact information of victims and
therefore posed a security threat and were subject to rejection. Sergeant Griggs
prepared a mailroom contraband slip indicating that mail had been rejected and
1
Because Mr. Vreeland appears pro se, we afford his filings a liberal
construction, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but
we do not craft arguments for him or otherwise act as his advocate, see Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2
returned these pieces of mail—pursuant to Mr. Vreeland’s instructions—to Mr.
Heher. Mr. Vreeland was allowed to take possession of the remainder of the
materials.
In June 2012, Mr. Vreeland received mail from a private investigations
firm. Ms. Schwartz reviewed the mail and found that it contained personal
information of victims and witnesses. Based on Ms. Schwartz’s findings,
Sergeant Griggs determined that the entirety of the mail was subject to rejection
and prepared a notice-of-rejection form indicating that the mail had been withheld
and returned to sender.
At some point in 2012, Mr. Vreeland told his case manager, Keith Valerio,
that his mother had mailed packages to BVCF and that the packages were
received by the facility, but never delivered to him. Mr. Vreeland provided
tracking numbers for the packages and Sergeant Griggs reviewed mailroom
records and contacted the postmaster. According to Sergeant Griggs, the
postmaster could not find any record of packages corresponding to the numbers
provided by Mr. Vreeland.
On July 23, 2012, Mr. Vreeland filed a complaint pursuant to 42 U.S.C.
§ 1983 against three individuals, including Sergeant Griggs, asserting due-process
and equal-protection claims, inter alia, relating to the alleged mishandling of his
mail. The defendants moved to dismiss all claims.
3
On March 25, 2013, Mr. Vreeland moved for leave to file an amended
complaint and filed a proposed amended complaint, in which he sought to add Ms.
Schwartz as a defendant and to assert First Amendment claims regarding the
handling of his mail. The district court granted Mr. Vreeland’s motion in part; it
permitted him to assert his First Amendment and access-to-courts claims against
Sergeant Griggs, but denied his effort to assert claims against Ms. Schwartz.
On November 13, 2013, Mr. Vreeland filed an amended complaint.
Pursuant to the district court’s order, Mr. Vreeland asserted only that Sergeant
Griggs violated his First Amendment rights and unconstitutionally restricted his
access to the courts by allegedly mishandling his mail. Sergeant Griggs moved for
summary judgment on all claims; the district court granted his motion.
II
Mr. Vreeland now appeals from the district court’s orders dismissing his
equal-protection claims, denying him leave to add claims against Ms. Schwartz,
granting Sergeant Griggs’s motion for summary judgment, and denying several
other non-dispositive motions in his case. Additionally, Mr. Vreeland has moved
this court to appoint an attorney for him and this motion is still pending before this
court. For the reasons set forth below, we affirm each of the challenged orders
and deny Mr. Vreeland’s motion for appointment of counsel on appeal.
4
A
We first turn to Mr. Vreeland’s appeal from the district court’s order
dismissing his equal-protection claims and denying his request to raise new claims
against Ms. Schwartz.
“We review a district court’s grant of a motion to dismiss de novo.”
Petrella v. Brownback, 787 F.3d 1242, 1267 (10th Cir. 2015). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[W]e assume the factual allegations are true and ask whether it is
plausible that the plaintiff is entitled to relief.” Gallagher v. Shelton, 587 F.3d
1063, 1068 (10th Cir. 2009). “[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
We generally review the district court’s refusal to permit an amendment for
abuse of discretion. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113
(10th Cir. 2007). However, because the district court’s denial of Mr. Vreeland’s
motion rested on the legal conclusion that amendment would be futile on statute-
of-limitations grounds, we review that determination de novo. See Peterson v.
Grishman, 594 F.3d 723, 731 (10th Cir. 2010).
5
For the reasons stated below, we affirm the district court’s order in both
respects.
1
We first conclude that the district court properly dismissed Mr. Vreeland’s
equal-protection claim because he failed to adequately allege such a claim. The
equal-protection clause “is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 439 (1985). “When those who appear similarly situated are nevertheless
treated differently, the Equal Protection Clause requires at least a rational reason
for the difference . . . .” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 502
(2008). Applying that rubric here, Mr. Vreeland’s claim fails for the simple
reason that he failed to adequately allege that BVCF—and specifically, Sergeant
Griggs—treated him differently than similarly situated individuals.
He was denied access to his mail on the basis that it contained victim and
witness information in violation of CDOC Administrative Regulation 750-03 §
IV.K.7. In his amended complaint, however, he failed to plausibly allege that
other inmates were treated differently—that is, he did not allege that similarly
situated inmates were permitted to receive through the mail court files containing
unredacted victim and witness information, despite CDOC policy. Rather, he
alleged that BVCF allowed other inmates to have their “criminal case court files,”
and then speculated that all such files necessarily contained identifying victim and
6
witness information—viz., the sort of materials Sergeant Griggs deemed
contraband relative to Mr. Vreeland. Mr. Vreeland, however, included no factual
support to buttress his speculation concerning the composition of the court files
held by “tens of thousands” of unknown and unidentified inmates. R., Vol. I, at
398. Moreover, he does not allege that the other inmate case files actually
contained unredacted victim and witness information in violation of CDOC
policy—viz., the issue that engendered the rejection of Mr. Vreeland’s materials.
Yet Mr. Vreeland generally asserts on appeal that other similarly situated
inmates were allowed to possess court files containing victim and witness
information. But he fails to assert that the victim-and-witness information
allegedly possessed by other inmates was of the same sort or similar to the
information that Sergeant Griggs rejected. Moreover, he asserts for the first time
on appeal in connection with his equal-protection claim that the “court records and
other documents” sent to him “didn’t even contain names, addresses, phone
numbers, and emails of victims and witnesses.” Aplt’s Opening Br. at 37. This
eleventh-hour factual assertion comes too late: Mr. Vreeland did not include it in
his amended complaint, which the district court considered, and consequently we
will not take it into account now. See Hayes v. Whitman, 264 F.3d 1017, 1025
(10th Cir. 2001) (“[A] court may not consider allegations [made in a brief]
inconsistent with those pleaded in the complaint.”); see also Webb v. Smith, 632 F.
App’x 957, 960 (10th Cir. 2015) (concluding that “new allegations surfacing for
7
the first time during the appeal” are irrelevant to the correctness of the district
court’s dismissal).
Finally, Mr. Vreeland argues that the dismissal of his equal-protection claim
was “very unfair” because he was “pro se and doing his best to plead what [was]
required,” and, if counsel had been appointed, his “claim would not have been
dismissed.” Aplt’s Opening Br. at 36. Although Mr. Vreeland’s pro se status
compels us to construe his filings liberally, see Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam), it does not relieve him of his burden to adequately allege
the elements of his equal-protection claim, see Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008). Accordingly, we affirm the dismissal of Mr. Vreeland’s
equal-protection claim.
2
Mr. Vreeland next challenges the denial of his motion to amend to assert
claims against Ms. Schwartz. After initially omitting her as a defendant from his
original complaint, Mr. Vreeland named Ms. Schwartz in his proposed amended
complaint, filed March 25, 2013, in relation to the alleged mishandling of his mail
in 2010 and 2012. The district court refused to permit amendment. We affirm.
With regard to the handling of Mr. Vreeland’s mail in 2010, the district
court found his claims against Ms. Schwartz time barred under Federal Rule of
Civil Procedure 15(c). On appeal, Mr. Vreeland argues that this “was error[,]”
8
because Schwartz was not sued within the Rule 15(c) time limit “due to fraudulent
concealment.” Aplt’s Opening Br. at 37. Specifically, he contends that after he
filed his initial complaint, Ms. Schwartz denied involvement with the rejection of
his mail, but “[l]ater . . . changed her story in an attempt to come to the defense of
[Sergeant] Griggs,” claiming that “she alone rejected the mail and that [Sergeant]
Griggs had nothing to do with it.” Id. at 37–38.
Mr. Vreeland’s argument does not merit reversal. At the outset, he raises
his inconsistent-story argument for the first time on appeal and has not argued for
plain-error review; we therefore deem this argument effectively waived. See
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011). Moreover,
Mr. Vreeland provides no record citations for his newly-minted theory, nor any
legal support for his contention that the inconsistent-story argument warrants
reversal. Without more from Mr. Vreeland, we decline to disturb the district
court’s reasoned decision on his proposed claims against Ms. Schwartz for her
handling of his mail in 2010.
We likewise affirm the district court’s rejection of Mr. Vreeland’s proposed
claims against Ms. Schwartz for her handling of his mail in 2012. The district
court found that Mr. Vreeland did not adequately plead a First Amendment claim
because he failed to “plausibly allege that Ms. Schwartz intentionally acted in
violation of CDOC regulations when she read [Mr. Vreeland’s] legal mail” in
9
2012; therefore it denied his request to raise this claim against Ms. Schwartz. R.,
Vol. I., at 709–11, 719.
On appeal, Mr. Vreeland argues only that the statute of limitations has not
run on his claims against Ms. Schwartz, “so at a minimum, the 2012 claims against
Schwartz should have been allowed to proceed.” Aplt’s Opening Br. at 38. But,
he fails to contest the district court’s actual basis for rejecting this particular
claim—viz., because Mr. Vreeland failed to raise a plausible First Amendment
claim. Thus, we likewise affirm the district court’s refusal to permit amendment
in this respect.
B
Mr. Vreeland next argues that the district court erred in denying two
motions to compel production of documents and for related discovery sanctions.
“We review a district court’s ruling denying a motion to compel for an abuse of
discretion.” Norton v. The City Of Marietta, 432 F.3d 1145, 1156 (10th Cir.
2005). “Under this standard, we will not disturb a trial court’s decision absent a
definite and firm conviction that the lower court made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.” Id. (quoting
Cummings v. GMC, 365 F.3d 944, 952 (10th Cir. 2004)). We conclude that Mr.
Vreeland has not demonstrated any such error.
10
First, Mr. Vreeland challenges the district court’s denial of his July 14,
2014 motion to compel production of the working file that the CDOC maintained
on him. He argues that with access to his working file, he could have proven that
the mail “rejection forms supplied to the [c]ourt as evidence were fakes, and that
over 2000 pages of documents were taken and destroyed.” Aplt’s Opening Br. at
29. But Mr. Vreeland only speculates in conclusory fashion, and without support,
that a forgery occurred, and that the contents of the working file would have
revealed evidence of the forgery. Accordingly, he has not shown that the district
court abused its discretion in denying his motion to compel the working file.
Second, Mr. Vreeland challenges the magistrate judge’s denial of his
December 2, 2014 motion to compel production. However, Mr. Vreeland never
sought reconsideration from the district court of the magistrate judge’s minute
order denying his motion. See 28 U.S.C. § 636(b)(1)(A) (providing that a district
court judge “may reconsider any pretrial matter” that magistrate judges are
authorized to decide under that subsection including, as here, a nondispositive
motion to compel); Fed. R. Civ. P. 72(a) (“A party may serve and file objections
to [a magistrate’s final] order [on a non-dispositive matter] within 14 days after
being served with a copy.”); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995
(10th Cir. 2000). Consequently, we lack jurisdiction to review the magistrate
judge’s order on appeal. See S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d
1262, 1269 (10th Cir. 2010) (“Under [28 U.S.C.] § 636(b)(1)(A), a magistrate
11
judge may not issue a final order directly appealable to the court of appeals.
Properly filed objections resolved by the district court are a prerequisite to our
review of a magistrate judge’s order under § 636(b)(1)(A).” (quoting Hutchinson
v. Pfeil, 105 F.3d 562, 566 (10th Cir.1997))); see also Fed. R. Civ. P. 72(a) (“A
party may not assign as error a defect in the order [of a magistrate judge on a
nondispositive matter] not timely objected to.”).
C
Mr. Vreeland next challenges the denial of two motions for appointment of
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).
Reversal is appropriate “[o]nly in those extreme cases where the lack of counsel
results in fundamental unfairness.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.
2012) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.
2004)). “The factors to be considered include ‘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.’” Id. (quoting Hill, 393 F.3d at
1115). For the following reasons, we affirm the district court’s denial of Mr.
Vreeland’s motions for appointment of counsel.
Mr. Vreeland first challenges the district court’s denial of his October 17,
2013 motion for appointment of counsel. In that motion, he argued, inter alia, that
he needed counsel to obtain important documents in discovery. The magistrate
12
judge denied the motion, concluding that Mr. Vreeland had (up to that point)
capably litigated his case, and that if his discovery concerns were realized, he
could file a motion to compel. See R., Vol. I, at 729–31 (Order, dated Oct. 21,
2013). Mr. Vreeland objected to the magistrate judge’s order, and the district
court overruled Mr. Vreeland’s objections.
On appeal, Mr. Vreeland argues that we should reverse the denial of his
October 17, 2013 motion, because his pro se status prevented him from obtaining
necessary evidence against Sergeant Griggs. Mr. Vreeland, however, filed his
request before the start of discovery, and indeed, before the filing of his amended
complaint. And, as the magistrate judge aptly noted, Mr. Vreeland could have
addressed any discovery issues through the filing of a motion to compel.
Consequently, this was not an “extreme case[] where the lack of counsel result[ed]
in fundamental unfairness,” Toevs, 685 F.3d at 916, and the district court acted
within its discretion in denying this motion.
Mr. Vreeland next challenges the denial of his December 18, 2014 motion
for appointment of counsel. However, Mr. Vreeland failed to file objections under
Federal Rule of Civil Procedure 72(a) to the magistrate judge’s January 26, 2015
order denying his request. We therefore lack jurisdiction to review it. See
Hutchinson, 105 F.3d at 566 (“Properly filed objections resolved by the district
court are a prerequisite to our review of a magistrate judge’s order under §
636(b)(1)(A).”).
13
D
Mr. Vreeland argues that the district court and magistrate judge “ignored
intentional false statements to the court, and fabricated documents that were
presented to the court by Appellees’ Counsel as true and real when they were
fakes and copies.” Aplt’s Opening Br. at 30 (capitalization altered). Mr.
Vreeland’s briefing on this point leaves unclear which district court ruling he
would have us reverse. Arguably, this assertion echoes the argument Mr.
Vreeland raised in appealing the district court’s denial of his motions to compel.
Compare Aplt’s Opening Br. at 29, with id. at 30. If so, his challenge in that
respect fails for the reasons stated infra. To the extent that he seeks to raise a new
argument, however, he must, at a minimum, specify the challenged order, the
requested relief, and the bases therefor; he has done none of these. Moreover, in
making this argument, Mr. Vreeland provides only a slew of factual assertions,
without reference to specific portions of the record or any relevant legal
principles. 2 Given the underdeveloped and partially unexplained nature of Mr.
Vreeland’s assertions, we discern no basis to ascribe any error.
2
For instance, Mr. Vreeland asserts that he “proved conclusively that
the transcripts” mailed to him and confiscated by CDOC “did not contain any
victim/witness information,” and that the defendants “changed the story to cover
up the first lie, and said that the documents were not really transcripts at all, but
just some legal materials, completely contradicting what they had originally told
the Court.” Aplt’s Opening Br. at 30. But, Mr. Vreeland provides no record
citations to support these assertions.
14
E
Mr. Vreeland next challenges the district court’s denial of his motion for an
extension of time to object to the magistrate’s recommendation on summary
judgment. Under Federal Rule of Civil Procedure 6(b)(1), a district court may
grant an extension of time for “good cause,” see Rachel v. Troutt, 820 F.3d 390,
394 (10th Cir. 2016), and we review the denial of such motion for an abuse of
discretion, see Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995).
Mr. Vreeland argues that the district court erred in denying his motion
because extenuating circumstances limited his time to file objections to fifteen
hours, causing his objections to be inadequate and overruled by the district court. 3
He contends that an extension would have allowed him to “obtain the record so he
[could have] pointed to it in his objection,” rather than relying only on his
memory. Aplt’s Opening Br. at 33.
Mr. Vreeland, however, fails to explain how he would have used record
citations to bolster his objections. He identifies no specific piece of record
3
Mr. Vreeland seems to argue that one such extenuating circumstance
was that the CDOC confiscated his electronic tablet. But, according to Mr.
Vreeland, the CDOC seized his tablet on February 2, 2015, over six months
before the original deadline to file his objections, September 18, 2015. And Mr.
Vreeland made numerous court filings during that time, including his response to
Sergeant Griggs’s motion for summary judgment. Mr. Vreeland fails to explain
on appeal why he was able to litigate his case for over six months without his
tablet, but could not file timely objections in September 2015. We therefore
reject this argument.
15
evidence that he would have cited in support of his objections, had he received
extra time to do so, nor any argument that he would have advanced—but
couldn’t—without the requested extension. Mr. Vreeland’s general and vague
assertions do not convince us that the district court abused its discretion in
denying his motion for extra time.
F
Mr. Vreeland next challenges the denial of his August 5, 2015 motion to
present newly obtained evidence and facts in support of his response to Sergeant
Griggs’s summary-judgment motion. In that motion, Mr. Vreeland sought leave to
present a CD that he claimed contained an exact copy of the mail sent to him by
Mr. Heher in 2010. Finding that Mr. Vreeland “provide[d] no admissible or
competent evidence demonstrating that” the CD “contain[ed] an exact copy of the
documents mailed to him five years earlier,” the magistrate judge denied Mr.
Vreeland’s motion. Id. at 3226 (Order, dated Sept. 1, 2015). Mr. Vreeland now
challenges the denial of his motion on appeal, but he never raised his objections
before the district judge in the first instance. 4 Accordingly, we lack jurisdiction to
review the magistrate judge’s order. See Hutchinson, 105 F.3d at 566.
4
On appeal, Mr. Vreeland claims that the magistrate judge’s ruling
“was never served upon him so no objection could be filed, in fact, a copy was
not obtained until after notice of appeal was filed.” Aplt’s Opening Br. at 38.
But Mr. Vreeland cites no evidence to this effect, and the public docket for the
district court reflects, in any event, that the district court mailed notice of the
order to Mr. Vreeland.
16
G
Mr. Vreeland challenges the district court’s summary-judgment ruling in
favor of Sergeant Griggs. “We review summary judgment decisions de novo,
applying the same legal standard as the district court.” Tuckel v. Grover, 660 F.3d
1249, 1251 (10th Cir. 2011) (quoting Willis v. Bender, 596 F.3d 1244, 1253 (10th
Cir. 2010)). “In our analysis we must view evidence in the light most favorable to
the non-moving party.” Id. “Summary judgment is appropriate when there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of
law.” Id. (quoting McCarty v. Gilchrist, 646 F.3d 1281, 1284 (10th Cir. 2011)).
For the reasons stated below, we affirm the district court’s grant of summary
judgment in favor of Sergeant Griggs.
1
Mr. Vreeland first argues that the district court misapplied the summary-
judgment standard by failing to accept his version of the facts. Specifically, Mr.
Vreeland argues that the district court ignored evidence of “altered documents, the
word play on the ‘Working File’ argument, . . . and the fact that there was no
8/7/07 transcript[] in the box, and there was no personal information on any of the
pages that were in the box, and it does not cost $11.80 to mail 12 pages of paper to
anywhere.” Aplt’s Opening Br. at 40. But, he points to no evidence in the record
to support these alleged facts; therefore, we need not accept them as true. See
17
Lounds v. Lincare, Inc., 812 F.3d 1208, 1220 (10th Cir. 2015) (noting that, even
though we take the facts in the light most favorable to the non-movant, “the non-
movant ‘must still identify sufficient evidence requiring submission to the jury to
survive summary judgment.” (quoting Piercy v. Maketa, 480 F.3d 1192, 1197
(10th Cir. 2007))); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.
1998) (noting that a non-movant’s “facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein”). We
therefore reject Mr. Vreeland’s argument that the district court misapplied the
summary-judgment standard.
2
Mr. Vreeland next argues that the district court’s grant of summary
judgment was premised on clearly erroneous factual findings. First, he argues that
the district court clearly erred in concluding that the 2010 package from Mr. Heher
contained personal contact information for witnesses and victims in his case, but
cites nothing in the record for support. Rather, he simply asserts that “[t]he 2010
legal mail did not contain[] transcripts . . . which mentioned any form of personal
information.” Aplt’s Opening Br. at 34. Second, he challenges the district court’s
finding that there was no evidence that Sergeant Griggs acted with a “deliberate
and invidious” motive. Id. According to Mr. Vreeland, Sergeant Griggs “lied on
the rejection forms about what was rejected[] and why,” and “entered fabricated
evidence in support of [his] position.” Id. But again, Mr. Vreeland offers no
18
record support for these assertions. In sum, Mr. Vreeland’s fact-based challenges
to the district court’s summary-judgment ruling are unsupported, conclusory
assertions and do not warrant reversal.
3
Mr. Vreeland raises several arguments for the first time in his reply brief.
Specifically, he challenges the district court’s findings that (1) he failed to exhaust
administrative remedies for all claims regarding mail received in 2012, (2) he
failed to demonstrate that he was denied access to the courts by Sergeant Griggs’s
handling of his mail in 2010, and (3) Sergeant Griggs was entitled to qualified
immunity. Because Mr. Vreeland makes these challenges for the first time in his
reply brief, they are waived. See Fed. R. App. P. 28(a)(8)(A) (requiring an
appellant’s opening brief to identify his “contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not raised . . . in an
appellant’s opening brief.”).
H
Finally, we turn to Mr. Vreeland’s pending motion on appeal. On
November 23, 2015, Mr. Vreeland filed a motion with this court for appointment
of appellate counsel. We denied the motion, declining “to consider the possibility
19
of appointing counsel for [Mr. Vreeland] until the case ha[d] been fully briefed.”
Order (10th Cir., Nov. 23, 2015). On February 12, 2016, Mr. Vreeland filed a
motion for this court to reconsider its denial of his motion for the appointment of
counsel. When reviewing a motion for reconsideration of the denial of a request
for court-appointed appellate counsel, we consider “the merits of the litigant’s
claims, the nature of the factual issues raised in the claims, the litigant’s ability to
present his claims, and the complexity of the legal issues raised by the claims.”
Rucks, 57 F.3d at 979; see also Olson v. Oklahoma, 172 F.3d 879, at *1 (10th Cir.
1999) (unpublished table decision) (applying Rucks standard to deny a motion for
reconsideration of the denial of a request for court-appointed appellate counsel).
In his motion for reconsideration, Mr. Vreeland argues that he deserves
counsel because (1) his case is confusing and involves numerous issues, which
caused his opening brief to be inadequate, (2) his arguments have merit, (3) he
will “have trouble litigating [his case] without counsel” due to ongoing discovery
issues, and (4) he cannot afford an attorney. Aplt’s Mot. for Reconsideration at
3–4. Based on our review of Mr. Vreeland’s appellate briefing and our conclusion
that his appellate arguments lack merit, we find no justification to appoint counsel
for Mr. Vreeland. Accordingly, we deny his motion.
20
III
For the foregoing reasons, we AFFIRM the challenged orders of the district
court and DENY Mr. Vreeland’s motion for appointment of appellate counsel.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
21