                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS January 6, 2014

                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 ERIC WATKINS,

              Plaintiff - Appellant,

 v.                                                     No. 12-6062
                                                 (D.C. No. 5:09-CV-01381-C)
 CORRECTIONAL OFFICER                                   (W.D. Okla.)
 DONNELLY; MRS. INGRAM,
 Lieutenant, FTC; MR. MONROE,
 Food Service Supervisor; MARK J.
 MANTEUFELL; PAUL A.
 KASTNER,

              Defendants - Appellees.



                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Plaintiff-Appellant Eric Watkins has filed a pro se 1 appeal from the district

      *
             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      This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      1
             Because Mr. Watkins is proceeding pro se, we construe his filings
                                                                   (continued...)
court’s decision to deny him a default judgment and dismiss his Bivens 2 claims as

unexhausted and barred by qualified immunity. Our jurisdiction arises under 28

U.S.C. § 1291. As explained below, we affirm the district court’s rulings in all

respects and grant Mr. Watkins’s motion to proceed in forma pauperis (“IFP”).

                                         I

      The case at bar comes to us from the district court’s granting of a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6); as such, we recite

the facts in the light most favorable to the non-moving party, Mr. Watkins. See

Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009). Our universe of facts is

limited to the complaint and any exhibits and documents attached thereto or

incorporated therein, so long as the authenticity of such documents is undisputed

by the parties. 3 See Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th

Cir. 2011).

      While incarcerated by the Federal Bureau of Prisons (“BOP”), Mr. Watkins

filed an administrative grievance, alleging that a prison official whom he later

identified as Officer Donnelly had “kicked the trap door” in his cell shut, thereby


      1
        (...continued)
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
      2
            Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
      3
            The district court relied on Mr. Watkins’s administrative grievances,
which were attached to his amended complaint, and so do we.

                                         2
injuring him. R. at 81 (Request for Admin. Remedy, dated Jan. 19, 2008). His

claim was denied and he appealed to the local BOP Regional Director, who

responded on a form dated April 4, 2008. In that response, the Regional Director

notified Mr. Watkins that he had referred the complaint “to the appropriate

Bureau component for investigation.” Id. at 88 (Reg’l Admin. Remedy Appeal

Resp., dated Apr. 4, 2008). The response was delivered to Mr. Watkins on April

30, 2008 and it informed him that any further “appeal must be received in the

Office of General Counsel within 30 days from the date of this response.” Id.

      Mr. Watkins, however, submitted a document to the Office of the General

Counsel (i.e., the BOP Central Office) on a form dated June 22, 2008, wherein he

requested an extension of time to file his appeal on the grounds that the earlier

response had been given to him so late and that prison staff had been

noncompliant with his requests for the documents he needed to pursue his appeal.

The BOP Central Office rejected the document as untimely. In so doing, it

informed Mr. Watkins that he was entitled to re-submit his appeal within fifteen

days, but that if he did so he was required to “provide staff verification on BOP

letterhead documenting that the untimely filing of this appeal was not your fault.”

Id. at 92 (Rejection Notice, dated July 7, 2008) (capitalization altered).

      Instead, Mr. Watkins sued various correctional employees under Bivens in

federal court, making out claims based on the kicking of the trap door and on the

new allegation that, on the same day as that incident, he had been denied religious

                                          3
meals. Explaining the events that occurred on the day in question in greater

detail, he asserted that he had been holding open his trap door for an extended

period of time to protest the withheld religious meals. When the issue was not

resolved, Mr. Watkins began repeatedly slamming the door against his cell,

creating a loud, “annoying” noise. Id. at 74 (Am. Compl., filed Feb. 1, 2010).

Eventually, Officer Donnelly approached the cell and kicked the door against Mr.

Watkins’s hand, causing bleeding, swelling, and pain. Over the course of the day,

Mr. Watkins was denied three religious meals.

      In his amended complaint, Mr. Watkins asserted that various officers

involved in the incident violated his First, Fifth, and Eighth Amendment rights

and committed assault and battery against him. Specifically, he averred (1) that

Officer Donnelly used excessive force against him in violation of his Eighth

Amendment rights by kicking the door; 4 (2) that a group of other correctional


      4
              Mr. Watkins suggests in his briefing here that he believes the
incident with the door violated his Fifth Amendment due-process “right to be
secure[] in his person from assault and battery,” Aplt. Opening Br. at 55, and not
his constitutional guarantee against excessive force. Although as a general rule
“the Eighth Amendment is the proper vehicle for evaluating excessive force
claims involving prisoners,” Smith v. Cochran, 339 F.3d 1205, 1210 n.2 (10th Cir.
2003), to the extent that the two Amendments overlap, the analysis is the same,
see Whitley v. Albers, 475 U.S. 312, 327 (1986). For convenience, we refer to the
claim relating to the kicking of the door as an Eighth Amendment claim.

      Mr. Watkins also characterizes his claim at times as one alleging assault
and battery. But Mr. Watkins sued pursuant to Bivens, which does not allow for
non-constitutional tort claims. Consequently, any free-standing assault and
                                                                     (continued...)

                                         4
staff members—Defendants Ingram, Monroe, Manteufell, and Kastner (“the

Ingram Defendants”)—violated his Eighth Amendment rights by allowing the

assault to occur; and (3) that the Ingram Defendants 5 violated his First

Amendment Free Exercise Clause rights by denying him three religious meals in

one day.

      The Ingram Defendants and Officer Donnelly both failed to submit timely

answers to the complaint. When Mr. Watkins called attention to their lateness,

the district court clerk entered default against both the Ingram Defendants and

Officer Donnelly. To justify their tardy filings, the Ingram Defendants told the

court that they had been under the impression that a pending recommendation by

a magistrate judge to dismiss the action for Mr. Watkins’s failure to effectuate

timely service nullified their answer deadline. Officer Donnelly, for his part,

sought to excuse his untimely answer by pointing to computer problems in his

attorney’s office. Unimpressed, Mr. Watkins moved the district court to enter

default judgment against all the defendants. The district court did not do so.

Instead, the court elected to vacate the default entries and, after deciding to adopt


      4
       (...continued)
battery claim is not cognizable in this appeal.
      5
             Mr. Watkins accused other, subsequently dismissed, defendants of
sharing in the free-exercise liability, but we do not read his amended complaint as
accusing Officer Donnelly of having any responsibility for that purported
violation. We understand the district court to have interpreted the complaint to
the same effect.

                                          5
the magistrate judge’s recommendations over Mr. Watkins’s objections, denied

Mr. Watkins’s motions for default judgment. 6

      The default judgment issues having been resolved, the magistrate judge

subsequently issued a report and recommendation on the defendants’ motions to

dismiss pursuant to Rule 12(b)(6), counseling the district court to dismiss all

remaining claims against all remaining defendants. As relevant here, the

magistrate judge recommended (1) dismissing the excessive-force claim against

Officer Donnelly without prejudice for failure to exhaust administrative

remedies; 7 (2) dismissing the free-exercise claim against the Ingram Defendants

without prejudice for failure to exhaust administrative remedies; and (3)

dismissing the Eighth Amendment claims against the Ingram Defendants with

prejudice on qualified immunity grounds. Overruling Mr. Watkins’s objections,

the district court adopted the magistrate judge’s recommendation in its entirety

and dismissed all claims against all defendants.

                                         II

      Mr. Watkins appeals on three principal grounds. First, he argues that the


      6
             At the district court, some discussion over various filing deadlines
and extensions overlapped with the discussion over the default issues. Only the
latter have any significance to the instant appeal.
      7
            Upon the magistrate judge’s recommendation, the district court
dismissed without prejudice Mr. Watkins’s official-capacity claims against the
defendants as barred by the Eleventh Amendment. Mr. Watkins does not
challenge that ruling on appeal.

                                         6
district court erred in setting aside the default entries and then denying his

motions for default judgment. Second, he submits that his free-exercise and

excessive-force claims should not have been dismissed for failure to exhaust.

Third, he asserts that the Ingram Defendants were not entitled to qualified

immunity. We are unpersuaded by Mr. Watkins’s contentions on all three

grounds; accordingly, we affirm the district court’s judgment.

                                          A

      Mr. Watkins finds fault with the district court’s decision to set aside the

clerk’s entry of default and finds fault with its attendant denial of his motions for

default judgment. We review such decisions for abuse of discretion. See Harvey

v. United States, 685 F.3d 939, 945 (10th Cir. 2012) (“We review a district

court’s denial of a motion for default judgment for abuse of discretion.”); Nikwei

v. Ross Sch. of Aviation, 822 F.2d 939, 941 (10th Cir. 1987) (noting that the

setting aside of default entries “is addressed to the sound discretion of the trial

court”). For the reasons that follow, we conclude that the district court did not

abuse its discretion.

                                           1

      Much of Mr. Watkins’s briefing on the default issue concerning the Ingram

Defendants is devoted to reiterating his view that the magistrate judge’s

recommendation to dismiss for failure to serve did not nullify the defendants’

deadline to answer. The district court actually agreed with Mr. Watkins on this

                                           7
legal proposition but, from its perspective, that did not control the outcome.

Specifically, the court did not deny default judgment because the Ingram

Defendants had a legally correct theory concerning the time for filing their

answer; rather, the court did so because it thought their legally incorrect theory

nevertheless supplied good cause.

      Mr. Watkins also argues that the Ingram Defendants failed to show good

cause for the default, but he is mistaken. Courts “may set aside an entry of

default for good cause.” Fed. R. Civ. P. 55(c). “In deciding whether to set aside

an entry of default, courts may consider, among other things, ‘whether the default

was willful, whether setting it aside would prejudice the adversary, and whether a

meritorious defense is presented.’” Pinson v. Equifax Credit Info. Servs., 316 F.

App’x 744, 750 (10th Cir. 2009) (quoting Dierschke v. O’Cheskey (In re

Dierschke), 975 F.2d 181, 183 (5th Cir. 1992)).

      As the district court found, the Ingram Defendants’ reliance upon the

magistrate judge’s recommendation to dismiss was negligent at most, not willful.

Moreover, there is no indication that Mr. Watkins was prejudiced by the delay.

Lastly, as demonstrated infra, the Ingram Defendants did have a meritorious

defense, namely, qualified immunity. Thus, the district court did not abuse its

discretion in setting aside the entry of default.

      Entry of default by the clerk is a necessary prerequisite that must be

performed before a district court is permitted to issue a default judgment. See

                                           8
Garrett v. Seymour, 217 F. App’x 835, 838 (10th Cir. 2007) (describing the entry

of default as “a prerequisite for the entry of a default judgment”); 10A Charles

Alan Wright et al., Federal Practice & Procedure § 2682, at 13 (3d ed. 1998)

(“Prior to obtaining a default judgment . . . , there must be an entry of default

. . . .”). Because the district court properly set aside the entry of default, and

because a default judgment cannot have been entered in the absence of such entry,

it ineluctably follows that the district court did not abuse its discretion in denying

Mr. Watkins’s motion for default judgment against the Ingram Defendants.

                                           2

      Mr. Watkins’s only discernible argument against the default judgment

rulings regarding Officer Donnelly is a regurgitation of his argument to the

district court that defense counsel’s computer problems were irrelevant because

they began while the answer was already late. As before, though, the district

court accepted this contention and nevertheless set aside the entry of default. Its

decision to do so was not an abuse of discretion. We have nothing before us on

which to base a conclusion that the conduct resulting in the initial

lateness—before the computer problems—was willful, the district court correctly

found that Officer Donnelly had colorable defenses, and no prejudice was

apparent. The district court acted within the proper range of its discretion in

vacating the entry of default, and accordingly (for the reasons noted regarding the

Ingram Defendants) also properly exercised its discretion in denying Mr.

                                           9
Watkins’s motion for default judgment against Officer Donnelly.

                                         B

      Relying on Rule 12(b)(6), the district court dismissed Mr. Watkins’s

excessive-force claim against Officer Donnelly for failure to exhaust

administrative remedies. We review the dismissal de novo, “accepting the well-

pleaded allegations of the complaint as true and construing them in the light most

favorable to” Mr. Watkins. Ashley Creek Phosphate Co. v. Chevron USA, Inc.,

315 F.3d 1245, 1267 (10th Cir. 2003). Applying this forgiving standard of

review, we find that the claim was unexhausted and as such properly dismissed.

      By law, a federal inmate with a Bivens claim must exhaust all available

administrative remedies before bringing his complaint to court. See Yousef v.

Reno, 254 F.3d 1214, 1221 (10th Cir. 2001). The issue of whether Mr. Watkins

failed to exhaust his excessive-force claim against Officer Donnelly hinges on

what Mr. Watkins did and did not do after April 30, 2008, when he was notified

of the initial appeal’s disposition. What Mr. Watkins did do was submit a form

on June 22, 2008, requesting an extension of time on the ground that the earlier

response had been given to him late, and explaining that he had been unable to

obtain various documents he needed in order to pursue his appeal. What Mr.

Watkins did not do was (1) request an extension within the four-day window to

appeal; (2) re-submit his appeal after the lapsing of the appeal deadline, as the

BOP permitted him to do; or (3) attempt to timely appeal within the four days he

                                         10
still had left to do so. The district court held that Mr. Watkins’s inaction in this

regard precluded him from taking his claim to federal court. We agree.

      Under the BOP’s regulations, an appeal from the Regional Director to the

General Counsel—the appeal Mr. Watkins never made—must be submitted

“within 30 calendar days of the date the Regional Director signed the response.”

28 C.F.R. § 542.15(a). However, “[w]hen the inmate demonstrates a valid reason

for delay, these time limits may be extended.” Id. Because Mr. Watkins failed to

submit a timely appeal, then, he was required to show a valid reason for it. This

he never did. The only explanations Mr. Watkins has offered for his failure to

file a timely appeal are (1) that the Regional Director’s response was delivered to

him at such a late date that he had only four days to submit a timely appeal from

it; and (2) that he was not given paperwork he needed in order to file a further

appeal or re-submit his appeal. By Mr. Watkins’s own admission, though, he only

began seeking the necessary paperwork on May 14, 2008, well after his window

had closed. And he never re-submitted his appeal at all, even a flawed appeal

accompanied by an explanation of the reason for the deficiency. Had he done so,

he would have at least established a record that he was doing all he could do to

comply with the administrative process, despite the alleged circumstances making

it challenging for him to do so.

      Ostensibly, Mr. Watkins assumed that any effort to comply with the

deadlines and the administrative processes available to him would have been

                                          11
futile. However, Mr. Watkins could not rely on such an assumption, fail to do all

that he reasonably could do, and then reasonably expect to be heard in federal

court on his claim. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.

2002) (“Even where the ‘available’ remedies would appear to be futile at

providing the kind of remedy sought, the prisoner must exhaust the administrative

remedies available.”). Rather, Mr. Watkins was required to take every possible

step within his power to complete the administrative appeals process. See id. at

1033 (“Mr. Jernigan may not successfully argue that he had exhausted his

administrative remedies by, in essence, failing to employ them . . . .”).

      Mr. Watkins asks us to consider the limited amount of time he had to file a

timely appeal and to consider the apparent difficulty he was having in obtaining

the documents he needed to either appeal or re-submit his appeal. At bottom, he

wants us to conjecture as to what might have occurred if he had endeavored to

pursue his administrative appeal in a timely fashion or if he had re-submitted his

appeal, in whatever form he was able to submit it. We decline to excuse Mr.

Watkins’s failure to exhaust by speculating as to what might have happened had

he sought to vindicate his rights through the administrative process afforded to

him; it was his obligation to spare us from engaging in such speculation. Cf.

Feuer v. McCollum, 139 F. App’x 928, 931 (10th Cir. 2005) (rejecting a

prisoner’s exhaustion argument where he failed to request an extension to file an

administrative appeal even though “he may have been entitled to” one (emphasis

                                          12
added)). In short, Mr. Watkins’s excessive-force claim against Officer Donnelly

was properly dismissed as unexhausted.

                                          C

      On qualified immunity grounds, the district court dismissed Mr. Watkins’s

claims against the Ingram Defendants with prejudice. Mr. Watkins now

challenges that ruling. Our review of the district court’s dismissal is de novo.

See Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010). A government

official is entitled to qualified immunity where his actions did “not violate

‘clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). Qualified immunity is overcome where two requirements are met: (1) a

constitutional violation took place that (2) violated a clearly established right.

See Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010). A court may dismiss a

claim on either prong without addressing the other. See id. The district court

dismissed Mr. Watkins’s free-exercise claim because it alleged no constitutional

violation. It dismissed his excessive-force claim against the Ingram Defendants

on qualified-immunity grounds because the claim implicated no clearly

established right. Finding no error in the district court’s disposition in either

respect, we affirm.

                                          1

      The district court viewed Mr. Watkins’s free-exercise claims as barred by

                                          13
qualified immunity because the purported violation—the denial of three religious

meals in one day—was de minimis. 8 We think the same.

      In a recent decision, we cited approvingly to the Seventh Circuit’s

conclusion that a prisoner’s lack of access to a religious meal on three occasions

qualified as a de minimis burden on religious exercise, and thus could not support

a constitutional claim. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1321 (10th

Cir. 2010) (citing Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999)). Mr.

Watkins seeks to distinguish these cases on the ground that he was suing in part

because the denial of the meals was to punish him for his obstreperous behavior,

and was not the result of shortages or limited resources. Be that as it may, the de

minimis inquiry goes to the burden on the religious exercise, see id. at 1321

(discussing the unavailability of religious food to an inmate “as a ‘de minimis

burden’” (emphasis added) (quoting Rapier, 172 F.3d at 1006 n.4)), not to the

officers’ motivation, cf. Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008)

(“Even with [malicious and sadistic] motivation, not every push or shove violates

the Constitution, but any use of force greater than de minimis, or any use of force

that is ‘repugnant to the conscience of mankind,’ does.” (emphases added)


      8
              The district court also held that Mr. Watkins failed to exhaust his
free-exercise claim by neglecting to voice it in his administrative grievance
forms. Mr. Watkins contests that holding on appeal. We do not address
exhaustion with respect to the free-exercise claim because we hold that the claim
was properly dismissed on qualified-immunity grounds and therefore affirm the
district court on that basis.

                                        14
(quoting Hudson v. McMillian, 503 U.S. 1, 9–10 (1992))); Morris v. Powell, 449

F.3d 682, 686 (5th Cir. 2006) (“Some acts, though maybe motivated by retaliatory

intent, are so de minimis that they would not deter the ordinary person from

further exercise of his rights” and thus “do not rise to the level of constitutional

violations.” (emphasis added)). It was proper for the district court to find that the

burden was de minimis and thus proper for it to grant qualified immunity to the

Ingram Defendants on this claim.

                                           2

      The district court determined that the Ingram Defendants were entitled to

qualified immunity on Mr. Watkins’s Eighth Amendment claim because there was

no clearly established “constitutional or statutory duty to prevent an inmate from

holding open his food tray door.” R. at 245 (Report & Recommendation, filed

Dec. 19, 2011). On appeal, Mr. Watkins frames his challenge to the ruling as

based not on a duty to keep him from holding his door open, but on a duty to

“keep [him] in a safe condition of confinement when [the Ingram Defendants]

were made aware that [he] was not in a safe condition of confinement due to his

holding . . . the food tray trap door” open. Aplt. Opening Br. at 59. They should

have made sure of his safety, Mr. Watkins says, by running through various

security protocols. No matter how Mr. Watkins chooses to package his argument,

it remains in substance the same: that the Ingram Defendants are liable for Officer

Donnelly’s kicking of the door.

                                          15
      Under certain circumstances, prison officials have a duty pursuant to the

Eighth Amendment to protect inmates from violence inflicted by fellow officials.

See United States v. Serrata, 425 F.3d 886, 896 (10th Cir. 2005). A failure-to-

protect claim must allege facts suggesting that a prisoner faced a substantial risk

of harm of which the officials had subjective knowledge. See Farmer v. Brennan,

511 U.S. 825, 834, 837 (1994). In order to accept Mr. Watkins’s argument, then,

we would have to hold that Mr. Watkins’s decision to hold his trap door open and

to bang it loudly against his cell exposed him to a substantial risk of harm. We

would have to further hold that the Ingram Defendants, purely by virtue of

observing his unruly behavior, were aware that his safety was in jeopardy and had

a duty to intervene to protect him. Like the district court, we are unaware of any

precedent imposing such an onerous and amorphous duty. The Eighth

Amendment does not oblige prison officials to prophesy the injuries that might

befall inmates while they engage in deliberately disruptive conduct.

                                          D

      Mr. Watkins filed a motion with the district court for leave to appeal IFP.

Finding that the appeal was not taken in good faith, the district court denied the

motion. Mr. Watkins renews his request for IFP status here. Although Mr.

Watkins’s arguments are ultimately unsuccessful, we nevertheless consider them

to be, in part, “reasoned” and “nonfrivolous,” and regard the appeal as taken in

good faith. Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th

                                         16
Cir. 2007). We therefore accommodate Mr. Watkins’s request to proceed IFP.

                                        III

      For the reasons detailed above, we affirm the district court’s rulings in all

respects and grant Mr. Watkins’s motion to proceed IFP.




                                              Entered for the Court



                                              JEROME A. HOLMES
                                              Circuit Judge




                                        17
