Antonio Dewayne Hooks v. Bryan Yandell

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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ANTONIO DEWAYNE HOOKS,
Plaintiff - Appellant,
v.
BRYAN YANDELL,
Defendant - Appellee,
and
JUSTIN GLASPY; FNU HILL, Former
Deputy Warden at NFCC Sayre,
Defendants.
No. 20-7061
(D.C. No. 6:18-CV-00399-RAW-SPS)
(E.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
_________________________________
The district court dismissed a pro se action Antonio Dewayne Hooks, an
Oklahoma state prisoner, brought pursuant to 42 U.S.C. § 1983. The court
determined that Mr. Hooks failed to exhaust his administrative remedies prior to
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit
August 12, 2021
Christopher M. Wolpert
Clerk of Court
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filing suit. Mr. Hooks appeals, challenging the dismissal and other rulings.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Mr. Hooks entered Oklahoma custody and was housed in medium security at
the North Fork Correction Center (NFCC). There, he saw Anthony Durham, one of
three men who had been convicted and sentenced in state court for assaulting
Mr. Hooks. The two had a fight, which Mr. Hooks reported to NFCC Deputy
Warden Hill. Mr. Hill placed Mr. Hooks in segregation and ordered that Mr. Durham
be kept separate from him. Thereafter, Mr. Hooks was transferred to the Davis
Correctional Facility (DCF), medium security. While at DCF, Mr. Hooks learned
that another man who had been convicted of assaulting him, Dewayne Smith, also
was housed at DCF in medium security. Mr. Hooks reported this to his case
manager, Justin Glaspy, who transferred Mr. Hooks to maximum security. The DCF
contract monitor, Bryan Yandell, approved that transfer.
Mr. Hooks filed a pro se § 1983 action against Mr. Hill, Mr. Glaspy, and
Mr. Yandell, asserting two claims. In the first claim, Mr. Hooks alleged he suffered
emotional distress because of (1) Mr. Hill’s failure to order that all the men convicted
in state court of assaulting him be kept separate from him (“separatees”) and
(2) Mr. Glaspy’s transfer of Mr. Hooks to maximum security. 1 In his second claim,
Mr. Hooks alleged that Mr. Glaspy and Mr. Yandell violated his due process rights
1 Although the first claim does not refer to Mr. Yandell, we assume Mr. Hooks
asserted it against him for his role in approving the transfer to maximum security.
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by transferring him to DCF maximum security without a disciplinary reason; instead,
Mr. Glaspy should have transferred him to medium security at another prison.
Mr. Hooks also alleged that Mr. Glaspy falsely stated in the transfer package that
Mr. Hooks would continue to refuse housing until he was transferred to a medical
prison (Mr. Hooks had sustained serious injuries in the assault by the three men). He
sought monetary damages and a medical transfer to a medical prison.
The district court dismissed Mr. Hill and Mr. Glaspy due to Mr. Hooks’s
failure to locate and serve them. The court then ordered a Martinez report, see
Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (per curiam); it identified six
grievances Mr. Hooks had filed concerning his housing, classification, or transfer.
Mr. Yandell filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), arguing that Mr. Hooks failed to properly exhaust his administrative
remedies and failed to state a claim for relief. Mr. Hooks responded to the motion to
dismiss. He also moved for leave to amend his complaint to add defendants. The
district court denied that motion without prejudice, explaining that amendment would
be futile if it dismissed the case for failure to exhaust and that Mr. Hooks could file
another motion to amend in the event the court denied the motion to dismiss.
Mr. Hooks also asked the court to compel production of all grievance appeals
he filed from August to December 2018. 2 The court interpreted that request as a
2 This time period appears to be based on Mr. Hooks’s response to the motion
to dismiss, where he identified two of the six grievances contained in the Martinez
report as those relevant to his claim against the DCF defendants, Mr. Glaspy and
Mr. Yandell. See R., Vol. I at 247 (identifying relevant grievances as those on pages
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supplement to Mr. Hooks’s response to the motion to dismiss and ordered
Mr. Yandell to respond by a date certain. When Mr. Yandell failed to do so, the
court ordered him to show cause for his failure to comply with the court’s order.
Mr. Yandell then filed a response, which included an affidavit from Mark Knutson,
the manager of the Administrative Review Authority (ARA) at the Oklahoma
Department of Corrections (ODOC). Mr. Knutson testified that the ARA had
received no appeal regarding any grievance from Mr. Hooks during the
August-December 2018 period. 3
The district court dismissed the action for failure to exhaust administrative
remedies. The court reasoned that Mr. Hooks failed to exhaust because he filed no
appeals to the ARA from any of the six grievances identified in the Martinez report.
The court rejected his argument that he had in fact filed appeals to the ARA during
the August-December 2018 period, because Mr. Knutson testified that Mr. Hooks had
filed no appeals during that period and Mr. Hooks had submitted no documentation
of his alleged appeals. The district court also denied three motions for a preliminary
injunction Mr. Hooks had filed requesting transfer to a medical prison. This appeal
followed.
18 and 33 of ECF No. 30-6, which may be found at R., Vol. I at 117, 132). These
two grievances were returned unanswered during the August-December 2018 period
because of various procedural defects.
3 Appeal to the ARA is the fourth and final step in ODOC’s administrative
grievance process. See R, Vol. I at 84-93 (ODOC grievance policy outlining
four-step process).
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II. Discussion
We first discuss Mr. Hooks’s waiver of four issues he inadequately briefed.
We then turn to the remaining three issues, which are adequately briefed.
A. Issues inadequately briefed
Mr. Hooks lists seven arguments in his opening brief, but the first three and
the seventh are insufficiently briefed to garner substantive review. Even though we
construe pro se pleadings and papers liberally, our role is not to act as a pro se
litigant’s advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). Appellants must “sufficiently raise all issues and arguments on
which they desire appellate review in their opening brief.” Becker v. Kroll, 494 F.3d
904, 913 n.6 (10th Cir. 2007). Sufficient presentation means providing an
“‘appellant’s contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies.’” Garrett, 425 F.3d at 840-41
(quoting Fed. R. App. P. 28(a)(8)(a)). “When a pro se litigant fails to comply with
that rule, we cannot fill the void by crafting arguments and performing the necessary
legal research.” Id. at 841 (internal quotation marks omitted). Instead, we treat such
issues as waived. Id.
Mr. Hooks’s first issue concerns the attempt to serve process on Deputy
Warden Hill. The summons was returned unexecuted, stating that Mr. Hill no longer
worked at NFCC and there was no forwarding information. The district court
ordered Mr. Hooks to show cause why it should not dismiss Mr. Hill from the case
for failure to serve process. Mr. Hooks responded only that he could not understand
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why service failed because Mr. Hill still worked at NFCC. The district court then
dismissed Mr. Hill.
On appeal, Mr. Hooks alleges that the United States Marshals Service in the
Eastern District of Oklahoma, where he filed this case, did not try to serve Mr. Hill
because the NFCC is in the Western District of Oklahoma. He also questions why it
took four months for the Marshals Service to return the summons unexecuted. But he
fails to explain why he thinks the district court erred in dismissing Mr. Hill based on
the facts that were before the court, and he cites no legal authority. Accordingly, he
has waived appellate review of this issue.
Mr. Hooks’s second issue concerns service of process on Mr. Glaspy.
Mr. Glaspy’s summons was returned unexecuted, stating he was no longer employed
at the address provided. Mr. Hooks argues the district court should have helped him
locate Mr. Glaspy because he informed the court that Mr. Glaspy had left DCF to
work at the Oklahoma Department of Human Services. But he fails to develop this
argument and cites no legal authority regarding the obligation he alleges the district
court had. He has therefore waived appellate review of his second issue.
As best we understand Mr. Hooks’s third issue, he complains that the district
court did not send him a copy of Mr. Yandell’s motion for a stay to prepare the
Martinez report (he claims he would have objected), delayed ruling on the stay
motion for seven months, and should not have granted the motion. But because he
does not develop this argument or present any legal authority, it is waived.
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In his seventh issue, Mr. Hooks contends the district court should not have sua
sponte given Mr. Yandell more time to file a response to Mr. Hooks’s motion to
compel production of the ARA grievances allegedly omitted from the Martinez
report. 4 But he again fails to develop this argument or cite any relevant legal
authorities. Accordingly, it is waived.
B. Issues adequately briefed
We next address the issues Mr. Hooks adequately briefed, beginning with his
sixth issue—whether the district court erred in dismissing his case for failure to
exhaust his administrative remedies in the manner prescribed by ODOC policy. See
42 U.S.C. § 1997e(a) (requiring exhaustion of “such administrative remedies as are
available” before a prisoner may bring a § 1983 action concerning prison conditions);
Jones v. Bock, 549 U.S. 199, 218 (2007) (“[T]o properly exhaust administrative
remedies prisoners must complete the administrative review process in accordance
with the applicable procedural rules—rules that are defined . . . by the prison
grievance process itself.” (internal quotation marks and citation omitted)). Our
review is de novo. Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010).
Mr. Hooks argues as follows: The Martinez report was incomplete because it
omitted any documentation of his grievance record to support its conclusion that he
never appealed to the ARA. Instead, the district court just accepted what was set
4 In this issue, Mr. Hooks also contends that grievance appeals should not be
omitted from a Martinez report. We construe this contention as part of his sixth
issue.
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forth in the Martinez report and Mr. Knutson’s affidavit stating that Mr. Hooks had
filed no ARA appeals during August-December 2018. By relying on materials
outside the record, the court effectively converted the motion to dismiss into one for
summary judgment, but it did not give Mr. Hooks an opportunity to file materials in
opposition.
For purposes of our analysis, we may assume the district court erred in failing
to convert the motion to dismiss into one for summary judgment and permitting
discovery. But we must disregard errors that do not affect a litigant’s substantial
rights. See 28 U.S.C. § 2111 (“On the hearing of any appeal . . . the court shall give
judgment after an examination of the record without regard to errors or defects which
do not affect the substantial rights of the parties.”). And Mr. Hooks fails to convince
us that any error affected his substantial rights. He has not claimed he possesses any
materials that would belie the Martinez report or Mr. Knutson’s affidavit evidencing
that Mr. Hooks filed no relevant ARA appeals. Nor has he identified any categories
of materials that would do so. Furthermore, Mr. Hooks has made conflicting
statements bearing on exhaustion. In his complaint, which was sworn under penalty
of perjury, he did not mention any ARA appeals when describing the steps he took to
exhaust his administrative remedies; he identified only “request to staff and
grievance,” R., Vol. I at 14, which are the second and third steps in ODOC’s
four-step administrative grievance process. Then, in a later-filed affidavit,
Mr. Hooks contradicted the complaint’s assertion when he observed that the Martinez
report failed to include any records of his “grievances that was appealed to
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O.D.O.C.,” id., Vol. II at 15, ¶ 3. Finally, in his appellate brief, Mr. Hooks suggests
he was hindered in filing appeals because the grievance coordinator “doesn’t always
provide [a] grievance appeal form when she find[s] issues with the grievance,” and
because he “is max and can’t obtain appeal form without [the grievance
coordinator].” Aplt. Opening Br. at 5. This theory, which Mr. Hooks did not
advance in the district court, is plainly contrary to his contention that he in fact filed
appeals of the relevant grievances.
In sum, we are not persuaded that discovery would have led to a different
outcome. Mr. Hooks’s motion to compel the production of any relevant appeals was
effectively the document request he necessarily would have had to make if the
district court had converted the motion to dismiss into one for summary judgment
and permitted Mr. Hooks to propound discovery. The answer to that request was that
there was no record of any relevant appeals, and Mr. Hooks has given us no reason to
think the result would have been any different if the district court had allowed him
discovery. We therefore reject this argument.
In his fourth issue, Mr. Hooks contends the district court erred in not allowing
him to amend his complaint to add defendants after submission of the Martinez
report. Mr. Hooks relies on Foman v. Davis, 371 U.S. 178 (1962), apparently for its
statement that although district courts have discretion whether to grant leave to
amend, “outright refusal to grant the leave without any justifying reason appearing
for the denial is not an exercise of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules.” Id. at 182. But Foman also listed
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“futility of amendment” among the examples of valid reasons to deny leave to
amend. Id. Here, the district court relied on futility, reasoning that amendment
would be futile if the court dismissed the action for failure to exhaust administrative
remedies. As it turned out, the court did just that, and Mr. Hooks makes no argument
that amendment would have avoided that outcome. He therefore has not
demonstrated that the district court abused its discretion in denying his motion for
leave to amend.
Finally, in his fifth issue, Mr. Hooks argues the district court should have
granted his motions for a preliminary injunction. We need not address the merits of
this argument because the district court dismissed his action and entered a final
judgment, which moots his appeal of the district court’s orders denying a preliminary
injunction. See Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999)
(affirming dismissal of complaint and dismissing appeal from denial of preliminary
injunction as moot); U.S. ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th Cir.
1988) (explaining that a preliminary injunction is by its nature a temporary measure
intended to furnish provisional protection while awaiting a final judgment on the
merits and that entry of final judgment moots appeal of preliminary injunction);
Baker v. Bray, 701 F.2d 119, 122 (10th Cir. 1983) (dismissing appeal of preliminary
injunction ruling as moot where district court later dismissed the underlying claim).
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III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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