                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         October 9, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 BRYAN RICHARD HOWARD,

       Plaintiff - Appellant,

 v.                                                          No. 19-3036
                                                   (D.C. No. 5:17-CV-03019-DDC)
 RAY RODGERS; DOUG                                            (D. Kan.)
 WETTLAUFFER; PAUL LEONHARD;
 ROGER CROOKS; KIMBERLY
 MAURELLI,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      Bryan Howard, a federal prisoner proceeding pro se,1 brought suit under 42

U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of



      *
          After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t 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 isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
        1
          As we discuss below, Howard was initially represented by counsel. But he
later proceeded pro se in district court and likewise proceeds pro se on appeal.
Although we liberally construe his pro se filings, we won’t act as his advocate by,
e.g., formulating possible arguments or combing the record for support. See Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Narcotics, 403 U.S. 388 (1971), against several Bureau of Prisons (BOP) officials

and staff members, including Ray Rodgers, Doug Wettlauffer, Paul Leonhard, Roger

Crooks, and Kimberly Maurelli (collectively, the defendants), alleging they violated

his Eighth Amendment rights.2 Specifically, Howard alleged that Rodgers sexually

assaulted him while Howard was incarcerated at a federal penitentiary, and that

Wettlauffer, Leonhard, Crooks, and Maurelli failed to stop Rodgers.

      The defendants moved for summary judgment, arguing that Howard failed to

exhaust his administrative remedies as required by the Prison Litigation Reform Act

(PLRA) of 1995, 42 U.S.C. § 1997e. See § 1997e(a) (“No action shall be brought

with respect to prison conditions under . . . [f]ederal law, by a prisoner confined in

any jail, prison, or other correctional facility[,] until such administrative remedies as

are available are exhausted.”). Howard, who was then represented by counsel,

disagreed; he insisted that he exhausted his administrative remedies by complying

with the directions set forth in the BOP’s “Sexual Abuse Behavior Prevention and

Intervention Program.” R. vol. 1, 104.

      In evaluating Howard’s response to the defendant’s motion, the district court

first noted that Howard failed to provide specific citations to the relevant parts of the

summary-judgment record, as required by local rule. See D. Kan. Rule 56.1(b). And

based solely on the facts that were “properly” before it, the district court determined




      2
         Howard named additional defendants in his initial pleadings, but they are not
parties to this appeal.
                                            2
that Howard failed to exhaust his administrative remedies. R. vol. 1, 199. Thus, the

district court granted the defendants’ motion for summary judgment.

      Howard’s attorney then withdrew, and Howard filed a pro se motion under

Rule 60(b)(6) of the Federal Rules of Civil Procedure. The district court denied the

motion, concluding that Howard failed to identify “the kind of extraordinary

circumstances required to grant [him] relief” from the court’s order granting

summary judgment to the defendants. Id. at 221–22; see also Cashner v. Freedom

Stores, Inc., 98 F.3d 572, 579 (10th Cir. 1996) (“[A] district court may grant a Rule

60(b)(6) motion only in extraordinary circumstances and only when necessary to

accomplish justice.”).

      Howard now appeals, arguing the district court erred in granting the

defendants’ motion for summary judgment and in denying his Rule 60(b)(6) motion.

But in doing so, Howard fails to explain in his opening brief precisely how the

district court allegedly erred. See Nixon v. City & Cty. of Denver, 784 F.3d 1364,

1366 (10th Cir. 2015) (“The first task of an appellant is to explain to us why the

district court’s decision was wrong.”). For instance, Howard doesn’t (1) dispute that

he failed to provide the requisite citations to the record in his response to the

defendants’ motion for summary judgment or (2) assert the district court erred in

concluding that, based on the facts that were properly before it, Howard failed to

exhaust his administrative remedies. Nor does Howard meaningfully engage with the

district court’s reasons for denying his Rule 60(b)(6) motion. Further, to the extent

Howard’s opening brief contains any arguments at all, Howard fails to support those

                                            3
arguments “with citations to the authorities and parts of the record on which [he]

relies.” Fed. R. App. P. 28(a)(8)(A); see also Garrett, 425 F.3d at 840–41 (noting

that Rule 28 applies with equal force to pro se litigants). Accordingly, Howard has

waived any challenge to the district court’s rulings. See Bronson v. Swensen, 500

F.3d 1099, 1104 (10th Cir. 2007) (noting that we regularly “decline[] to consider

arguments that are not raised, or are inadequately presented, in an appellant’s

opening brief”). We therefore affirm the district court’s orders granting summary

judgment to the defendants and denying Howard’s Rule 60(b)(6) motion. See Nixon,

784 F.3d at 1369 (summarily affirming district court’s order dismissing claim

because appellant’s brief “contain[ed] nary a word to challenge the basis of the

dismissal”).

      Finally, Howard asks us both to appoint “a lawyer to help [him]” and to allow

him to proceed in forma pauperis (IFP) on appeal. Aplt. Br. 4. Although we have

authority to “request an attorney to represent any person unable to afford counsel,”

we decline to do so here. 28 U.S.C. § 1915(e)(1); cf. Rucks v. Boergermann, 57 F.3d

978, 979 (10th Cir. 1995) (affirming district court’s order denying motion to appoint

counsel because “even with appointed counsel,” plaintiff had little chance of success

on the merits). And because Howard fails to “show . . . the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised” in this

appeal, we likewise deny his motion to proceed IFP. Lister v. Dep’t Of Treasury, 408




                                           4
F.3d 1309, 1312 (10th Cir. 2005). Howard remains obligated to pay the full filing

fee.


                                          Entered for the Court


                                          Nancy L. Moritz
                                          Circuit Judge




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