Cunningham v. FBP , 709 F. App'x 886 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
HAROLD CUNNINGHAM,
Plaintiff - Appellant,
and No. 17-1054
(D.C. No. 1:12-CV-01570-RPM-MEH)
PERCY BARRON; ALPHONSO BLAKE; (D. Colo.)
JABBAR CURRENCE; CARLTON
DUNBAR; SCOTT FOUNTAIN; SEAN
GILLESPIE; CHARLES HIPPS; RONNIE
HOUSTON; JOHN LAMB; HERBERT
PERKINS; JOHN J. POWERS; ARNELL
SHELTON; MARCELLUS
WASHINGTON; CENTER FOR LEGAL
ADVOCACY, d/b/a Disability Law
Colorado,
Plaintiffs - Appellees,
v.
FEDERAL BUREAU OF PRISONS,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McKAY, and MATHESON, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
_________________________________
Harold Cunningham, proceeding pro se, appeals the judgment approving the
settlement of a class action brought by mentally ill prisoners housed in the federal
administrative-maximum facility in Florence, Colorado (ADX). He argues that the
settlement was not fair, reasonable, or adequate because it did not provide for money
damages. He has requested leave to proceed in forma pauperis (IFP) on appeal. We
grant IFP and affirm.
I. Background
We provide a brief description of the background to frame the issues presented
for review. In 2012 counsel for several ADX prisoners filed the underlying action
alleging that they were denied required mental-health treatment and were so abused
by prison personnel that the conditions of their confinement constituted cruel and
unusual punishment in violation of the Eighth Amendment. In 2015 counsel
submitted a second amended complaint, the operative complaint in the case, seeking
class certification for ADX inmates needing mental-health evaluation and treatment.
A federal magistrate judge facilitated discovery and settlement negotiations. In
November 2016 the plaintiffs filed a proposed settlement agreement setting out the
terms of a settlement, including required policies and procedures for diagnosis and
treatment of ADX prisoners. The district court held a three-day fairness hearing
under Fed. R. Civ. P. 23(a). Several ADX prisoners testified by videotape and others
submitted written statements.
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The district court noted that the defendant Federal Bureau of Prisons (BOP)
“has not admitted an Eighth Amendment violation as to any of the plaintiffs or a
systemic violation at ADX.” R. Vol. 1, at 367. Rather, the BOP agreed to the
settlement because it recognized the need for new policies and practices for mentally
ill inmates at ADX. The court observed that although the case was triable, “[t]he
complexities of such a trial are evident. That is a principal reason for the settlement
of this action.” Id. And it pointed out that the settlement could not be relied on in an
individual claim against a BOP official or employee brought in a separate Bivens
action. See Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S.
388 (1971).
The district court acknowledged that some of the prisoners objected to the
settlement because it did not provide for any awards of money damages. But it noted
(1) that the operative complaint did not include claims for damages because damage
awards against the BOP are barred by sovereign immunity; (2) that even if prisoners
had claims for medical negligence under the Federal Tort Claims Act, those claims
were not appropriate in a class action because they would not meet the class-action
requirements in Rule 23(a) of commonality and typicality; and (3) that any inmate
may still pursue an independent Bivens action. The court approved the settlement
agreement and later dismissed the action subject to retention of jurisdiction to
enforce the agreement.
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II. Discussion
We review the district court’s approval of the settlement for abuse of
discretion. Fager v. CenturyLink Commc’ns, LLC, 854 F.3d 1167, 1174–75
(10th Cir. 2016). “A district court may approve a proposed settlement only after
‘finding that it is fair, reasonable, and adequate.’” Id. at 1174 (quoting
Fed. R. Civ. P. 23(e)(2)).
We liberally view Mr. Cunningham’s pro se filings. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however,
“take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Id. Moreover, “pro se parties [must] follow
the same rules of procedure that govern other litigants.” Id. (internal quotation marks
omitted).
Mr. Cunningham first claims that during a hearing in November 2013 the
attorney for the class and the magistrate judge agreed to set up a trust fund for
payment of money awards to certain prisoners, yet the attorney improperly failed to
set it up.1 But he does not cite to any record evidence for this claim. See
Fed. R. App. P. 28(a)(8)(A) (stating appellant’s brief must contain, among other
things, citations to the “parts of the record on which the appellant relies”). And what
we do have in the record does not support the claim. The attorney for the class
discussed this matter during the fairness hearing, informing the court that “there was
1
To the extent Mr. Cunningham attempts to represent the interests of other
prisoners, a pro se litigant may not represent other pro se litigants in federal court.
See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000).
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a discussion of whether there was a way to divert or to set aside an attorney fee
award to create some kind of a compensation pool, . . . [but] the government declined
to consent to that compensation idea.” Aplee. Supp. App. Vol. 9, at 2125-26. It is
undisputed that monetary compensation for inmates was not included in the final
settlement agreement approved by the court.
Mr. Cunningham also raises an argument based on his proposed pro se Third
Amended Complaint seeking money damages. The district court struck the Third
Amended Complaint because (1) it attempted to bring individual damages claims in
the class action, (2) Mr. Cunningham was represented by class counsel so the court
could not accept pro se filings, and (3) acceptance of an amended complaint would
supersede the prior operative class complaint. Mr. Cunningham filed a motion to
reconsider. He contends that the BOP’s failure to respond to the motion to
reconsider is a concession that the BOP violated his Eighth Amendment rights.
Contrary to his characterization of the proceedings, however, the BOP responded to
the motion to reconsider. And although the district court did not formally rule on the
motion, the court implicitly denied it by dismissing the case. See Fransen v. Conoco,
Inc., 64 F.3d 1481, 1489 n.6 (10th Cir. 1995) (district court implicitly denied
plaintiff’s claim by ruling on defendant’s summary-judgment motion).
Mr. Cunningham next asserts that the settlement agreement should be voided
because BOP officials retaliated against him for refusing to agree to the settlement.
But he does not identify where he raised a retaliation claim in the district court and
he does not argue for the application of plain-error review on appeal. Therefore, the
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retaliation claim is waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,
1130-31 (10th Cir. 2011). Even though we do not consider his retaliation claim in
this appeal, we note that the settlement order does not foreclose Mr. Cunningham
from bringing a separate action for retaliation.
Mr. Cunningham also asserts that he was denied his First Amendment right to
testify in opposition to the settlement at the fairness hearing. Again, he has not
shown where he raised this claim in the district court or argued for plain-error
review, so this claim is waived. See id. And we note that he was afforded adequate
notice and an opportunity to be heard. Mr. Cunningham filed pleadings stating his
objections. And the district court recognized the objection of some of the class
members that the settlement did not provide for money damages. See Rutter &
Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187 (10th Cir. 2002) (noting as to
objections to class-action settlement that “[t]he fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful
manner” (internal quotation marks omitted)).
Mr. Cunningham argues that an award of money damages was contemplated
by the operative complaint because the relief requested included “such other relief as
th[e] Court deems just and proper,” Aplee. Supp. App. Vol. 8, at 1870. Perhaps so.
But even if the complaint had explicitly sought money damages, that would not affect
the validity of the ultimate settlement. A settlement is not unfair simply because it
does not provide all relief originally sought.
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Finally, Mr. Cunningham maintains that he is entitled to an award of attorney
fees for acting as the lead plaintiff and helping to put the case together. The fees
payable to the attorneys for the class were authorized under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. But “attorney fees are not available for pro se
litigants under the EAJA.” Demarest v. Manspeaker, 948 F.2d 655, 655 (10th Cir.
1991).
III. Pending Motions
Mr. Cunningham’s requests for appointment of counsel and an evidentiary
hearing in this appeal are denied, as are his requests “for production of document
transcribed” and an award of money damages. His application to proceed IFP is
granted; but he remains obligated to pay all filing and docketing fees.
IV. Conclusion
The judgment is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
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