                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       May 24, 2012
                           FOR THE TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
DARYL A. WITMER,

             Plaintiff-Appellant,

v.                                                        No. 11-6267
                                                   (D.C. No. 5:10-CV-00796-D)
GRADY COUNTY JAIL; SHANE                                  (W.D. Okla.)
WYATT, Warden; JACK PORTER,
Chairman, Board of CO Comm.; ART
KELL, Sheriff, Grady Co.; DOCTOR
CARL LAFFOON, Grady Co. Medical
Ctr.; BILL DAUGHERTY, Supervising
Officer; GRADY COUNTY CRIMINAL
JUSTICE AUTHORITY; GRADY
COUNTY BOARD OF COUNTY
COMMISSIONERS; GRADY COUNTY
INDUSTRIAL AUTHORITY; PATRICK
JAMES, Detention Officer; OFFICER
MARTIN, Detention Officer; DEPUTY
JACOBS, Deputy Sheriff Grady Co.;
OFFICER HARWELL, Detention
Officer; SGT. SULLIVAN, Detention
Officer; OFFICER CARROLL,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


*
      After examining the briefs and 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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and MURPHY,
Circuit Judge.


      Daryl A. Witmer appeals from the dismissal of his pro se 42 U.S.C. § 1983

action for failure to state a claim upon which relief may be granted. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND1

      Mr. Witmer was a pretrial detainee at the Grady County Jail in Chickasha,

Oklahoma. He got into an argument over a gambling debt with another prisoner,

“Snake,” and a fight ensued. Mr. Witmer picked Snake up and felt a pop in his back.

After the altercation was over, Snake continued to threaten Mr. Witmer. Mr. Witmer

informed the officer on duty, defendant Vernon Harwell, about what had happened.

Officer Harwell said he would log it and tell his supervisors.

      Snake continued to make threatening remarks to Mr. Witmer, who fell asleep.

When he awoke, he discovered that his commissary box was empty. One of the other

prisoners told Mr. Witmer who had taken his things (apparently Snake) and warned

Mr. Witmer that Snake and another prisoner planned to stab him. Mr. Witmer

informed Officer Harwell of the theft. Snake overheard this and approached

Mr. Witmer with his right hand behind his back. Mr. Witmer then threw hot coffee


1
       We draw the facts from Mr. Witmer’s amended complaint. Because he is
pro se, we afford his filings a liberal construction, but we do not act as his advocate.
See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).


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into Snake’s face and began to strike Snake, demanding that Snake show his right

hand. Snake did so. Seeing that Snake’s hand was empty, Mr. Witmer stopped

striking him. Mr. Witmer again informed Officer Harwell of what had happened and

demanded to be moved out of the cell. Officer Harwell said he could not open the

door because he was the sole officer on duty but would call for assistance, which

took twenty-five minutes to arrive.

       Mr. Witmer was taken to a hospital. He was examined there and returned to

the jail with two prescriptions, one for pain and one for muscle cramps. He also

received a recommendation that he see a neurological or orthopedic specialist about

his back pain. Back at the jail, one of the defendants, Dr. Carl Laffoon, provided

care for Mr. Witmer, who repeatedly complained about back and leg pain.

Dr. Laffoon initially declined to fill either of the hospital’s prescriptions, citing jail

policy, but eventually he did dispense one of those prescriptions for Mr. Witmer’s leg

cramps. Mr. Witmer continued to complain that he was in pain and that the

medication he was being given was not adequate. Dr. Laffoon never referred

Mr. Witmer to a specialist during the seven months Mr. Witmer was confined at the

jail, but he did order an MRI after several months, which showed that a

previously-inserted implant in Mr. Witmer’s back had moved.

       In his amended complaint, Mr. Witmer advanced seven claims of

constitutional violations. He asserted that defendants violated their constitutional

duty to protect him from being assaulted by other inmates, arguing that a jail policy


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of having only one officer on duty was to blame. In two other claims, he alleged that

he is now crippled as a result of deliberate indifference to his medical needs. And in

his four remaining claims, he asserted that unspecified defendants impeded his access

to the courts by denying his requests for legal materials, jail policies, and jail

regulations; that certain conditions at the Grady County Jail were inhumane,

specifically, dirty drinking water, mold in the showers, and deteriorating and airborne

asbestos; that some defendants conspired against him to deprive him of his

constitutional rights; and that a lack of policy and procedure concerning treatment of

prisoners and sanitary conditions violated various constitutional rights.

       The matter was referred to a magistrate judge, who issued a Report and

Recommendation that all claims be dismissed for a variety of reasons. The

magistrate judge first concluded that claims against the Grady County Jail should be

dismissed because the jail lacked the legal capacity to be a defendant under

Oklahoma law. The magistrate judge also concluded that any claims asserted against

the Grady County Criminal Justice Authority, the Grady County Board of

Commissioners, the Grady County Industrial Authority, and the individual

defendants in their official capacities failed because Mr. Witmer failed to show the

existence of a municipal policy that was a moving force behind his injuries; instead,

Mr. Witmer was an active participant in the altercations. Turning to each specific

claim, the magistrate judge concluded that Mr. Witmer’s claim of failure to protect

should be dismissed because he failed to allege sufficient facts showing that Officer


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Harwell, the only defendant named in claim one, knew of and disregarded an

excessive risk of injury to Mr. Witmer’s health or safety. As to the two claims of

denial of medical care, the magistrate judge concluded that Mr. Witmer’s allegations

only showed a difference of medical opinion with Dr. Laffoon, which is not

actionable as an Eighth Amendment deliberate-indifference claim. The magistrate

judge further determined that Mr. Witmer’s claim that defendants denied his access

to the courts was undermined by the fact that, while he was detained at the Grady

County Jail, he had filed a previous § 1983 action against some of the same

defendants involving the same incidents, and that he voluntarily dismissed that suit.

As to Mr. Witmer’s claim regarding jail conditions, the magistrate judge concluded

that Mr. Witmer’s vague factual allegations, his admission that prisoners are given

cleaning supplies and are expected to clean their living areas, and his failure to allege

that he suffered any adverse effects from any of the conditions about which he

complained were insufficient to show that any defendant subjectively knew of and

disregarded an excessive risk to his health or safety. Regarding the conspiracy claim,

the magistrate judge recommended dismissal because Mr. Witmer’s factual

allegations were conclusory. Finally, the magistrate judge construed the vague

seventh claim as one that there was an inadequate grievance procedure at the jail and

concluded that not only is there no constitutional right to an adequate grievance

procedure, but Mr. Witmer had in fact filed multiple grievances, some of which he

attached to his amended complaint.


                                          -5-
       The district court adopted the Report and Recommendation over Mr. Witmer’s

objections and dismissed the action pursuant to Fed. R. Civ. P. 12(b)(6) and

28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).2 In previous rulings, the district

court also denied Mr. Witmer’s motions for appointment of counsel. This appeal

followed.

II.    DISCUSSION

       We review de novo a district court’s dismissal for failure to state a claim.

Johnson v. Johnson, 466 F.3d 1213, 1214 (10th Cir. 2006) (dismissal under

Fed. R. Civ. P. 12(b)(6)); McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001)

(dismissal under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1)). To avoid such a

dismissal, “a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       In his appellate brief, Mr. Witmer largely reiterates the facts alleged in his

amended complaint, adds new allegations regarding Dr. Laffoon and the MRI, makes

conclusory statements, offers his view that the facts show constitutional violations,

and argues that he needs discovery, expert witnesses, and counsel. But he has not

presented any sufficiently developed arguments as to why he believes the legal bases

for the district court’s dismissal of his claims were erroneous. Thus, he has waived


2
      The district court relied on its screening function under §§ 1915(e)(2)
and 1915A(b)(1) to dismiss claims against four defendants who were never served.


                                           -6-
appellate review of the substance of the district court’s dismissal of his claims. See

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). Nonetheless, we

discern three arguments sufficiently presented to merit our attention.

      First, Mr. Witmer claims that in two Special Reports filed in accordance with

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), defendants omitted evidence and

included an outdated asbestos report for the jail. However, neither the magistrate

judge nor the district judge relied on the Special Reports. Hence, we see no basis for

reversing the district court’s decision based on Mr. Witmer’s contention regarding

those reports.

      Second, Mr. Witmer broadly claims that the magistrate judge mischaracterized

his allegations and argues that this shows he should have been appointed counsel and

permitted discovery. See Aplt. Opening Br. at 9, 11, 20. However, he has not

identified any specific mischaracterizations. Thus, he has waived appellate

consideration of this issue. See Adler, 144 F.3d at 679. In any event, our review has

not disclosed any material mischaracterizations.

      Finally, Mr. Witmer claims the district court should have appointed him

counsel given his medical condition, his need for expert witnesses, and the magistrate

judge’s mischaracterization of his facts. But civil litigants have no right to counsel,

Johnson, 466 F.3d at 1217, and the district court gave good reasons for denying

Mr. Witmer’s motions, namely, that the issues were not complex, that he had the

ability to understand and present them pro se, and that he had not presented special


                                          -7-
circumstances warranting the appointment of counsel. Moreover, Mr. Witmer did not

rely on the magistrate judge’s alleged mischaracterizations in any motion for counsel

filed in the district court, and again, we have not uncovered any such

mischaracterizations. We therefore see no abuse of discretion in the district court’s

denial of counsel. See Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)

(reviewing denial of counsel for abuse of discretion and listing factors relevant to

determining whether to appoint counsel as “the merits of the litigant’s claims, the

nature of the factual issues raised in the claims, the litigant’s ability to present his

claims, and the complexity of the legal issues raised by the claims”).

       In sum, despite Mr. Witmer’s waivers, we have reviewed the record and the

briefs on appeal in light of the governing law, and we agree with the magistrate

judge’s Report and Recommendation and the district court’s order adopting it. We

therefore AFFIRM the district court’s judgment for substantially the same reasons

stated in those two filings. Mr. Witmer’s motion to proceed on appeal in forma

pauperis is granted, and we remind him of his obligation to continue making partial

payments until his filing fee is paid in full.


                                                  Entered for the Court


                                                  John C. Porfilio
                                                  Senior Circuit Judge




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