                                                                   FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              October 7, 2016
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                                Clerk of Court
                        FOR THE TENTH CIRCUIT
                    _________________________________

FRANKLIN C. SMITH,

      Plaintiff-Appellant,

v.                                                   No. 16-5004
                                         (D.C. No. 4:14-CV-00511-GKF-PJC)
DEPUTY DUSTIN DUBOISE,                               (N.D. Okla.)
Grievance Coordinator; SGT.
ERNEST MENDENHALL;
DEPUTY ROBERTSON; D.O.
ROBERSON; STANLEY GLANZ,

      Defendants-Appellees.

                    _________________________________

                       ORDER AND JUDGMENT*
                    _________________________________

Before T Y M K O V I C H , Chief Judge, B A C H A R A C H and M O R I T Z,
Circuit Judges.
                    _________________________________


      Mr. Franklin Smith was a pretrial detainee at the Tulsa County Jail.

When booked into the jail, Mr. Smith failed to follow the directions

given by two officers. The officers thought that Mr. Smith was drunk and


*
     Oral argument would not materially aid our consideration of the
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
refusing to cooperate. Mr. Smith denies that he was drunk or

uncooperative; he states that a mental disability caused him to think that

he was in a restaurant in New Mexico. When Mr. Smith failed to follow

the officers’ directions, the two officers grabbed Mr. Smith’s arm behind

his back and directed him where he was to go.

     Mr. Smith sued five officers (Sheriff Stanley Glanz, Sergeant

Ernest Mendenhall, Deputy Dustin DuBoise, Detention Officer Roberson,

and Deputy Robertson); and he wanted to sue two more officers (Corporal

Miller and Officer Cantrell), claiming the use of excessive force and a

violation of the Americans with Disabilities Act. But the district court

granted dismissal or summary judgment to the five officers being sued

and denied Mr. Smith leave to amend the complaint to add Corporal

Miller and Officer Cantrell as defendants. In this appeal, Mr. Smith

challenges these rulings, arguing that he created triable fact issues. 1 We

affirm.

1.   Appellate Jurisdiction

     One defendant argues that we lack appellate jurisdiction because

the district court did not enter a final order. We disagree. The district



1
      The district court dismissed claims against two of the officers
(Detention Officer Roberson and Deputy Robertson) based on a failure to
effect timely service. Mr. Smith does not challenge this ruling.

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court stated that its order was final, terminated the action, and entered

judgment for the defendants. These steps rendered the order final,

creating appellate jurisdiction. See Moya v. Schollenbarger, 465 F.3d

444, 450 (10th Cir. 2006) (“[I]f a district court expressly and

unambiguously dismisses a plaintiff’s entire action, that order is final

and appealable.”).

2.    Claims of Excessive Force Against Sheriff Glanz

      The district court dismissed the excessive force claims against

Sheriff Glanz based on a lack of personal participation and failure to

state a valid claim. We agree with the rulings based on the district

court’s thorough explanation.

3.    Claims of Excessive Force Against Officers Mendenhall and
      DuBoise

      Officers Mendenhall and DuBoise obtained summary judgment on

the excessive force claims. We agree with this ruling. As the district

court explained, most of the episode was captured on videotape, which

showed the use of minimal force to take Mr. Smith where he was ordered

to go. Whether Mr. Smith was drunk or mentally disabled, the videotape

shows that the officers took reasonable steps to carry out the booking

process. See Cortez v. McCauley, 478 F.3d 1108, 1125 (10th Cir. 2007)




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(en banc). As a result, we agree with the district court’s explanation for

the grant of summary judgment on the excessive force claims.

4.    C l a i m s A g a i n s t S h e r i f f G l a n z, O f f i c e r M e n d e n h a l l , a n d O f f i c e r
      DuBoise Under the Americans with Disabilities Act

      Mr. Smith also alleged two violations of the Americans with

Disabilities Act. The first involved use of excessive force during the

booking; the second involved Sheriff Glanz’s housing of Mr. Smith with

inmates who were “psychologically normal.” Am. Compl. at 4. On

appeal, Mr. Smith argues that Officers Mendenhall and DuBoise

committed discrimination and violated the statute by confusing a mental

abnormality with uncooperative behavior.

      In order to plead a valid claim, Mr. Smith had to allege facts

showing that the jailers had failed to reasonably accommodate a

disability during the booking process, inflicting greater injury or

indignity to Mr. Smith than to others being booked into the jail. See

Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999).

      No such factual allegations appeared in the amended complaint. As

a result, the district court dismissed all claims under the Americans with

Disabilities Act. We cannot fault the district court for failing to entertain

factual allegations that had not appeared in the amended complaint.




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5.   Recusal

     In an earlier case, Mr. Smith filed a judicial misconduct complaint

against the same district court judge who presided over this case. Based

on this complaint, Mr. Smith asked the judge to recuse or to order a

change in venue. The judge declined to recuse or change venue. These

rulings do not constitute error. See In re Mann, 229 F.3d 657, 658-59 (7th

Cir. 2000).

6.   Allegedly Missing Videotapes

     Mr. Smith alleged that the defendants had failed to produce some of

the footage that was videotaped during the booking. The district court

rejected the argument, concluding that the additional footage probably

did not exist and would not have affected the outcome. This ruling fell

within the district court’s discretion. See El Encanto, Inc. v. Hatch Chile

Co., 825 F.3d 1161, 1162 (10th Cir. 2016).

7.   Leave to Amend

     Mr. Smith acknowledged in district court that he had misidentified

the two officers involved in the initial skirmish. Based on the

misidentification, Mr. Smith sought leave to amend his complaint to add

Corporal Miller and Officer Cantrell as defendants. The district court

denied leave to amend, reasoning that amendment would be futile

because the award of summary judgment was based on the absence of a

                                    -5-
legal violation, not Mr. Smith’s misidentification of the alleged culprits.

The district court correctly determined that leave to amend would be

futile. See Jones v. Norton, 809 F.3d 564, 579 (10th Cir. 2015), petition

for cert. filed (U.S. Jul. 13, 2016) (No. 16-72).

8.    New Arguments in Mr. Smith’s Reply Briefs

      In his reply briefs, Mr. Smith also argues that (1) he was

improperly housed with violent gang members and (2) the district court

erroneously denied a request to

       !    subpoena a videotape and a record of the assault and

       !    grant a temporary injunction.

These arguments did not appear in Mr. Smith’s opening brief; thus, we

decline to consider these arguments. See Garcia v. LeMaster, 439 F.3d

1215, 1220 (10th Cir. 2006) (declining to consider issues raised for the

first time in a reply brief).

9.    Disposition

      We affirm the district court’s rulings

      !     dismissing claims of excessive force against Sheriff Glanz,

      !     addressing the Americans with Disabilities Act,

      !     awarding summary judgment to Officer Mendenhall and
            Officer DuBoise on the claims of excessive force, and




                                      -6-
!   declining to recuse or change venue, refusing to take action
    for failure to produce footage from the videotapes, and
    denying leave to amend the complaint.


                           Entered for the Court



                           Robert E. Bacharach
                           Circuit Judge




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