Pinson v. Berkebile , 549 F. App'x 787 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 10, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JEREMY PINSON,
No. 13-1399
Petitioner - Appellant,
(D.C. No. 1:13-CV-01953-LTB)
v. (D. Colorado)
DAVID BERKEBILE,
Respondent - Appellee.
ORDER AND JUDGMENT*
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Jeremy Pinson, appearing pro se, appeals the district court’s order dismissing his
application for a writ of habeas corpus under 28 U.S.C. § 2241. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm because Mr. Pinson does not challenge the district
court’s ground for dismissal.
* After examining appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Mr. Pinson is a prisoner in the custody of the United States Bureau of Prisons in
Florence, Colorado. His § 2241 application alleged that prison officials violated his Fifth
Amendment right to due process when they disciplined him without a hearing, a mental
examination, or an opportunity to call witnesses and present documentary evidence. It
also alleged that his mental condition prevented him from being responsible for the
conduct resulting in discipline.
The United States District Court for the District of Colorado found Mr. Pinson’s
application devoid of factual support and ordered him to amend it. He failed to amend
the application within 30 days and did not communicate with the court. As a result, the
court dismissed the action without prejudice under Fed. R. Civ. P. 41(b).
On appeal Mr. Pinson raises two challenges that were not raised in district court:
(1) that the district court should have appointed counsel sua sponte to assist him with his
application and (2) that he was denied his First Amendment rights by restrictions placed
on his access to writing materials while on suicide watch. We do not address these
challenges. See United States v. Gould, 672 F.3d 930, 938 (10th Cir. 2012) (“Failure to
raise an argument before the district court generally results in forfeiture on appeal.”
(brackets and internal quotation marks omitted)).
Mr. Pinson does not, however, challenge the district court’s finding that his § 2241
application was deficient. Therefore we affirm the judgment below. See Morris v.
Noe, 672 F.3d 1185, 1193 (10th Cir.2012) (An “argument insufficiently raised in the
opening brief is deemed waived.” (internal quotation marks omitted)).
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We AFFIRM the district court’s dismissal and DENY Mr. Pinson’s motion to
proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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