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

                             FOR THE TENTH CIRCUIT                        January 9, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 LOUIS PEOPLES, JR.,

       Plaintiff - Appellant,

 v.                                                         No. 19-1111
                                               (D.C. No. 1:17-CV-00776-MSK-NYW)
 BAKER; NEWCOMB; SIMPSON;                                    (D. Colo.)
 LARSON,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Louis Peoples, Jr., appeals following a grant of summary judgment in favor of

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

                                          I

      Peoples is an inmate at the Sterling Correctional Facility. On September 28,

2016, he was working as a porter assigned to the teacher’s workroom in the programs

building. Correctional Officer Harley Baker observed Peoples leave his assigned


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
area and walk to the law library at the other end of the building. Baker contacted

Krista Newcombe, who verified Peoples’ assignment. The two officers confronted

Peoples, who became angry. Meanwhile, Sergeant Tracy Larson spoke with Jennifer

Anderson, a non-security staff member, who stated that she asked Peoples to come to

the library after another inmate requested his assistance. Larson explained to both

Anderson and Peoples that Peoples was not permitted to enter the law library unless

he was on the list of assigned inmates.

      Officers handcuffed Peoples and brought him to the center of the programs

building. Larson spoke with Captain Michael Tidwell, who ordered a strip search.

They brought Peoples to a nearby staff bathroom. Newcombe, a female officer, faced

away from Peoples during the search. Baker and a teacher in the area, Matthew

Simpson, stood in the doorway of the bathroom. The search lasted three minutes and

did not uncover any contraband.

      Peoples advanced six claims against the officers involved in the search. The

district court dismissed some of his claims as frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i) but referred his Fourth Amendment claim to a presiding judge.

Defendants moved for summary judgment on the basis of qualified immunity, and the

court granted summary judgment in favor of defendants. Peoples timely appealed.

                                          II

      We review a district court’s grant of summary judgment de novo. See

Genberg v. Porter, 882 F.3d 1249, 1253 (10th Cir. 2018). A party is entitled to

summary judgment only if the evidence shows that there is no genuine issue as to any

                                          2
material fact and the moving party is entitled to judgment as a matter of law. See id.

Because Peoples proceeds pro se, we construe his filings liberally but do not act as

his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

       To overcome a defense of qualified immunity, a plaintiff must show that

defendants’ conduct violated his constitutional rights and that the relevant law was

clearly established. Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006). “For the

law to be ‘clearly established,’ there ordinarily must be a Supreme Court or Tenth

Circuit opinion on point.” Pompeo v. Bd. of Regents of the Univ. of N.M., 852 F.3d

973, 981 (10th Cir. 2017). We must “define the clearly established right at issue on

the basis of the specific context of the case.” Id. (quotation omitted). “This is not to

say that an official action is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say that in light of the pre-

existing law the unlawfulness must be apparent.” Mimics, Inc. v. Village of Angel

Fire, 394 F.3d 836, 842 (10th Cir. 2005) (quotation omitted).

       As we have previously held, prisoners have a well-established right not to be

subject to a “strip search in full view of several (or perhaps many) others unless the

procedure is reasonably related to a legitimate penological interest.” Farmer v.

Perrill, 288 F.3d 1254, 1260 (10th Cir. 2002) (emphasis omitted). In reviewing such

searches, courts consider “the scope of the particular intrusion, the manner in which

it is conducted, the justification for initiating it, and the place in which it is

conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). However, prison officials

must “be accorded wide-ranging deference in the adoption and execution of policies

                                              3
and practices that in their judgment are needed to preserve internal order and

discipline and to maintain institutional security.” Id. at 547.

      The record in this case demonstrates that defendants had legitimate

penological concerns. Peoples was discovered in an area of the programs building to

which he was not assigned. Officers averred that Peoples had been previously

discovered out of his assigned area in that building, that inmates sometimes leave

their assigned areas to transport contraband, and that libraries are areas of particular

concern because computer equipment can be fashioned into weapons and books can

be used to transmit messages between inmates. Although, as Captain Tidwell

acknowledged, staff members should have communicated better with each other, we

cannot say that the search was so clearly unconstitutional that a reasonable officer

would have known of its unlawful character. See Mimics, Inc., 394 F.3d at 842.

      We reach the same conclusion as to the manner in which the search was

conducted. Officers moved Peoples to a nearby staff bathroom because conducting

the search promptly was important and, of the readily available options, the bathroom

offered the most privacy. Although Peoples complains that the bathroom was visible

to a classroom across the hall, photographic evidence shows that any such view

would have been severely obstructed (particularly with two officers standing in the

doorway). Even assuming that the manner of the search was unlawful, the

unlawfulness would not necessarily have been clear to a reasonable officer. See id.

Further, Peoples’ arguments regarding prison regulations do not alter our conclusion



                                            4
because the violation of a regulation does not necessarily amount to a constitutional

violation. See Sandin v. Conner, 515 U.S. 472, 481-82 (1995).

       Peoples also states that the district court improperly granted summary

judgment as to his retaliation claim. The district court rejected defendants’ argument

that Peoples’ retaliation claim had been dismissed in its entirety under

§ 1915(e)(2)(B)(i) at the screening stage but ultimately granted defendants summary

judgment on the retaliation claim. Construing Peoples’ appellate filings liberally, we

understand him to argue that this was an improper sua sponte grant of summary

judgment. Although the sua sponte grant of summary judgment is disfavored, it is

reversible error only if the losing party was not put on notice of the need to come

forward with evidence and suffered prejudice. Oldham v. O.K. Farms, Inc., 871 F.3d

1147, 1150 (10th Cir. 2017). Peoples fails to satisfy this standard. He devoted the

bulk of his summary judgment briefing below to the retaliation issue and fails to

identify any other evidence or argument he might have advanced. See id.; A.M. v.

Holmes, 830 F.3d 1123, 1137 (10th Cir. 2016). And because Peoples does not

advance a substantive argument as to the retaliation claim, it is waived. See Bronson

v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).1

       Peoples also appeals the denial of his motions to appoint counsel. “We review

the denial of appointment of counsel in a civil case for an abuse of discretion.” Rucks v.



       1
        To the extent Peoples challenges the constitutionality of summary judgment
generally, his argument is foreclosed by circuit precedent. See Shannon v. Graves,
257 F.3d 1164, 1167 (10th Cir. 2001).
                                             5
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In deciding a motion for appointment

of counsel, courts should consider “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.” Id. (quotation omitted).

Considering these factors, we cannot say the district court abused its discretion.

                                              III

       AFFIRMED. Peoples’ motion for an extension of time to serve defendants

his reply brief is DENIED. His motion to proceed in forma pauperis is GRANTED,

but we remind him of his obligation to make partial payments until his filing fees are

paid in full. See 28 U.S.C. § 1915(b)(1).


                                                Entered for the Court


                                                Carlos F. Lucero
                                                Circuit Judge




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