Jabari J. Johnson v. Stephanie Dalton

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JABARI J. JOHNSON,
Plaintiff - Appellant,
v.
STEPHANIE DALTON,
Defendant - Appellee.
No. 21-1017
(D.C. No. 1:20-CV-00435-PAB-MEH)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, PHILLIPS, and EID, Circuit Judges.
_________________________________
Jabari Johnson appeals the dismissal of his 42 U.S.C. § 1983 claim against
Stephanie Dalton. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Mr. Johnson is an inmate at the Colorado State Penitentiary in Cañon City,
Colorado. Dalton is a Colorado Department of Corrections (CDOC) employee. In
his complaint, Mr. Johnson alleged that for various stretches of time beginning in
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
November 10, 2021
Christopher M. Wolpert
Clerk of Court
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August 2018, CDOC deprived him of a medically necessary wheelchair. Although
his complaint described actions by multiple CDOC officials and employees, the
allegations naming Dalton specified only that she wrote a medical slip “stating
item[:] wheelchair, expiration date[:] none,” R. at 24, and that, on November 19,
2019, she “took [Mr. Johnson’s] wheelchair stating he don’t get it,” id. Mr. Johnson
also alleged that on November 22, 2019, another CDOC employee returned his
wheelchair to him for a court date. See id. at 25. Mr. Johnson sought money
damages and injunctive relief.
Before serving Dalton, Mr. Johnson moved for a preliminary injunction. The
magistrate judge denied the motion because Mr. Johnson did not certify he provided
Dalton with notice of the motion or detail any efforts to effect service.
Counsel entered an appearance for Dalton and moved to dismiss the complaint
under Fed. R. Civ. P. 12(b)(1) and (6). The district court, on recommendation of the
magistrate judge, dismissed the claim for damages against Dalton in her official
capacity because Eleventh Amendment immunity barred that claim. The court then
concluded qualified immunity barred Mr. Johnson’s claims against Dalton in her
individual capacity because he failed to plausibly plead a deliberate indifference
Eighth Amendment claim. Mr. Johnson now appeals the denial of his motion for a
preliminary injunction and the dismissal of his § 1983 claim.
DISCUSSION
Because Mr. Johnson proceeds pro se, we construe his arguments liberally, but
we “cannot take on the responsibility of serving as [his] attorney in constructing
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arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). “Questions involving Eleventh Amendment
immunity are questions of law that this court reviews de novo.” Cornforth v. Univ. of
Okla. Bd. of Regents, 263 F.3d 1129, 1131 (10th Cir. 2001) (italics omitted). “We
review de novo a district court’s decision on a Rule 12(b)(6) motion for dismissal for
failure to state a claim. Under this standard, we must accept all the well-pleaded
allegations of the complaint as true and must construe them in the light most
favorable to the plaintiff.” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1282
(10th Cir. 2019) (italics, citation, and internal quotation marks omitted). But, “in
examining a complaint under Rule 12(b)(6), we will disregard conclusory statements
and look only to whether the remaining, factual allegations plausibly suggest the
defendant is liable.” Id. (internal quotation marks omitted).
Mr. Johnson first asserts the district court erred in dismissing his official-
capacity claims against Dalton, an employee of the State of Colorado. We construe
these as claims against the state itself, Hafer v. Melo, 502 U.S. 21, 25 (1991), and
states are immune from claims for money damages under the Eleventh Amendment,
see Duhne v. New Jersey, 251 U.S. 311, 313 (1920) (“[I]t has been long since settled
that the whole sum of the judicial power granted by the Constitution to the United
States does not embrace the authority to entertain a suit brought by a citizen against
his own state without its consent.”). Mr. Johnson does not argue Colorado consented
to suit or otherwise waived its Eleventh Amendment immunity, but instead states he
also sought money damages against Dalton in her individual capacity and injunctive
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relief in her official capacity. But this argument does not undermine the basis for the
district court’s dismissal of his money-damages claim against Dalton in her official
capacity, so we affirm that dismissal.
Mr. Johnson next argues the district court erred in concluding Dalton was
entitled to qualified immunity. To overcome Dalton’s qualified immunity, Mr.
Johnson bore the burden to establish “(1) the defendant’s conduct violated a
constitutional right and (2) the law governing the conduct was clearly established at
the time of the alleged violation.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.
2001).
A claim, such as Mr. Johnson’s, alleging an Eighth Amendment violation due
to deliberate indifference to serious medical needs has two components: objective
and subjective. “The objective component of the test is met if the harm suffered is
sufficiently serious to implicate the Cruel and Unusual Punishment Clause.”
Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal quotation marks
omitted).
Mr. Johnson alleged Dalton deprived him of his wheelchair on November 19,
2019, but that another CDOC employee returned it to him on November 22, 2019.
See R. at 24–25, 206. While Mr. Johnson had alleged physical injury stemming from
the deprivation of his wheelchair by other, sometimes unclearly specified CDOC
officials before November 19, 2019, he did not allege the three-day deprivation he
linked to Dalton rose to the level of unnecessary or wanton infliction of pain, so the
harm did not implicate the Cruel and Unusual Punishment Clause of the Eighth
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Amendment, and he did not plausibly plead the objective component of a deliberate
indifference claim. See Robbins v. Oklahoma, 519 F.3d 1242, 1249–50 (10th Cir.
2008) (“In § 1983 cases . . . it is particularly important . . . that the complaint make
clear exactly who is alleged to have done what to whom, to provide each individual
with fair notice as to the basis of the claims against him or her, as distinguished from
collective allegations against the state.”)
Mr. Johnson further objects to the district court’s dismissal of his complaint
without granting him leave to amend. But because Mr. Johnson did not object to that
portion of the magistrate judge’s recommendation, under this court’s firm-waiver rule
he has waived review of that issue on appeal. See Duffield v. Jackson, 545 F.3d
1234, 1237 (10th Cir. 2008) (“The failure to timely object to a magistrate’s
recommendations waives appellate review of both factual and legal questions.”)
internal quotation marks omitted)). Mr. Johnson does not invoke any exception to
the firm-waiver rule, so we decline to review this issue further.
Mr. Johnson asserts the magistrate judge erred in denying his motion for a
preliminary injunction. Mr. Johnson filed the motion before service on Dalton was
complete and before counsel had entered an appearance on her behalf. The
magistrate judge denied the motion without prejudice because Mr. Johnson failed to
comply with the local court rule requiring him to file a certificate of service and a
proposed order. See D.C. Colo. L. Civ. R. 65.1(a), (b). Mr. Johnson does not
address the basis for the magistrate judge’s decision to deny his motion on appeal, so
we affirm that decision.
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CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court. We
deny Mr. Johnson’s motions for injunctive relief because he did not establish a
likelihood of success on the merits. See Nken v. Holder, 556 U.S. 418, 426 (2009).
We deny Mr. Johnson’s motion to proceed in forma pauperis because he has not
presented “a reasoned, nonfrivolous argument on the law and facts in support of the
issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.
1991).
Entered for the Court
Jerome A. Holmes
Circuit Judge
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