                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     December 16, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                     TENTH CIRCUIT


 LAWRENCE BREEDLOVE,

                Plaintiff - Appellant,

           v.                                                No. 10-6043
                                                    (D. Ct. No. 5:08-CV-01065-D)
 DENNIS COSTNER; JIM RABON;                                  (W.D. Okla.)
 DEBBIE MORTON; JUSTIN JONES; J.
 MARLAR; CHESTER MASON;
 MARTY SIRMONS; KARMEON
 HARVONECK,

                Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance 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.

       Lawrence Breedlove, an Oklahoma state prisoner proceeding pro se, filed this

action under 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), 42


       *
        This order and judgment is not binding precedent except under the doctrines of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.
U.S.C. § 12132 et seq., against eight Oklahoma Department of Corrections (“ODOC”)

employees (“Defendants”). Among other things, Mr. Breedlove alleged that he was

wrongfully terminated from a prison job, improperly placed in disciplinary segregation,

given inadequate medical care, and retaliated against for complaining about prison

conditions. In separate orders, the district court dismissed several of Mr. Breedlove’s

claims and granted summary judgment to Defendants on the remaining claims. Mr.

Breedlove now appeals those orders. Exercising jurisdiction under 28 U.S.C. § 1291, we

AFFIRM.

                                   I. BACKGROUND

       Mr. Breedlove filed suit seeking declaratory and injunctive relief and damages

under § 1983 and the ADA on numerous claims concerning the conditions of his

confinement in the Oklahoma State Penitentiary in McAlester, Oklahoma. Defendants

filed a motion to dismiss or in the alternative for summary judgment. Mr. Breedlove

opposed the motion and filed his own motion for summary judgment. The magistrate

judge issued an extensive report and recommendation, recommending that the district

court grant in part Defendants’ motion to dismiss and grant Defendants’ summary

judgment on the remaining claims. Mr. Breedlove filed objections to the magistrate’s

report. After considering the magistrate’s report and recommendation and Mr.

Breedlove’s objections, the district court issued multiple orders disposing of Mr.

Breedlove’s claims.

       In its first order, the district court addressed Mr. Breedlove’s ADA claim,

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concluding that he had failed to state a claim upon which relief could be granted and

dismissing with prejudice. In a subsequent order, the district court addressed Mr.

Breedlove’s § 1983 claims. The court dismissed Mr. Breedlove’s claims against ODOC

personnel in their official capacity as barred by the Eleventh Amendment and dismissed

his claims for declaratory and injunctive relief because they must be brought pursuant to a

petition for habeas corpus. It also dismissed other claims against two defendants because

Mr. Breedlove had not pleaded sufficient facts to impose supervisory liability. Finally,

the district court granted summary judgment in favor of Defendants on Mr. Breedlove’s

claims concerning actions allegedly taken against him in 2004 and 2005 as barred by the

applicable statute of limitations and his retaliation, destruction of property, and denial of

medical treatment claims for failure to exhaust administrative remedies. Mr. Breedlove

now appeals both of the district court’s orders.1

       We review de novo the grant of a motion to dismiss and the grant of a motion for

summary judgment, applying the same standards as the district court. See Russell v.

United States, 551 F.3d 1174, 1178 (10th Cir. 2008) (motion to dismiss); Baca v. Sklar,

398 F.3d 1210, 1216 (10th Cir. 2005) (motion for summary judgment). Because Mr.

Breedlove is proceeding pro se, we construe his pleadings liberally. See Hall v. Bellmon,


       1
         In an additional order, the district court dismissed Mr. Breedlove’s claims against
Defendant Dennis Cotner because Mr. Breedlove failed to effect service on Mr. Cotner.
Mr. Breedlove listed that order in his notice of appeal, but he does not assert any error by
the district court in his opening brief. Accordingly, we do not address this issue. See City
of Colo. Springs v. Solis, 589 F.3d 1121, 1135 n.5 (10th Cir. 2009) (“[A]rguments not
raised in the opening brief are waived.”).

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935 F.2d 1106, 1110 (10th Cir. 1991).

                                    II. DISCUSSION

A.     ADA Claim

       The district court dismissed Mr. Breedlove’s ADA claim for failure to state a claim

for relief. Mr. Breedlove now contends that the district court erred by concluding that he

is not a “qualified individual with a disability.” He argues that he established a prima

facie case that he was a qualified individual by “mov[ing] to pay the trial court ‘50 dollars

a month from his disability awards’” and by “clearly stat[ing] that he is ‘a disabled

American veteran.’”

       The district court’s reasoning, however, did not depend on whether Mr. Breedlove

was a qualified individual. Although the district court noted in a footnote that Mr.

Breedlove had failed to allege that he was a qualified individual within the meaning of the

ADA, it dismissed his claim because he complained only about the quality and extent of

medical services he received. Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144

(10th Cir. 2005) (allegedly negligent medical decisions do not ordinarily fall within the

ambit of the ADA); see also Rashad v. Doughty, 4 F. App’x 558, 560 (10th Cir. 2001)

(“[T]he failure to provide medical treatment to a disabled prisoner, while perhaps raising

Eighth Amendment concerns in certain circumstances, does not constitute an ADA

violation.”). Because Mr. Breedlove did not allege that he had been denied services that

have been provided to other prisoners or otherwise allege discrimination solely based on

his asserted disability, he did not state a claim under the ADA and the district court

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properly dismissed his claim.

B.     Civil Rights Claims

       1.     Failure to Exhaust

       In his report and recommendation, the magistrate judge recommended dismissal of

Mr. Breedlove’s February 2007 and April 2008 property damage claims, his retaliation

claim, and his claim of denial of medical treatment for hepatitis C, hypertension, and

diabetes for failure to exhaust. The district court adopted the magistrate’s

recommendation, finding that Mr. Breedlove had waived additional review of the issues

by failing to make specific objections.

       Mr. Breedlove maintains that the district court erred because its dismissal order

was predicated on the fact that he “failed to address the Magistrate’s finding” that he had

not exhausted his administrative remedies. We do not agree. The district court’s order

recognized that Mr. Breedlove objected to the magistrate’s report and recommendation

and that he claimed he had filed “numerous pages of paperwork . . . such as requests to

staff and grievances.” It noted, however, that Mr. Breedlove failed to articulate specific

objections to the magistrate’s thorough review of his administrative filings. Our review

of the record confirms this. Mr. Breedlove did not show how the magistrate’s report was

flawed; instead, he claimed that prison employees interfered with his attempts to exhaust

the administrative process. In support of his claim of interference, he offered only his

conclusory and self-serving statements, failing to cite any specific instances.

Accordingly, the district court properly granted summary judgment to the Defendants on

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these claims.

       2.       Statute of Limitations

       The district court dismissed Mr. Breedlove’s claims concerning various alleged

actions taken against him in 2004 and 2005 as time-barred by the applicable statute of

limitations. Mr. Breedlove contends that this was error because the Oklahoma savings

statute, Okla. Stat. tit. 12, § 100, operated to extend the limitations period on such claims.

Specifically, he argues that he had filed claims in Washington federal courts which the

magistrate and district court erred in disregarding. Complaints filed in other states,

however, cannot trigger the Oklahoma savings statute. Morris v. Wise, 293 P.2d 547, 550

(Okla. 1957).

       Alternatively, Mr. Breedlove argues that equitable tolling is warranted in this case

because he “accused defendants of personally meddling in his affairs . . . and wrongfully

confiscating his legal materials and properties.” “State law governs the application of

tolling in a federal civil rights action.” Young v. Davis, 554 F.3d 1254, 1258 (10th Cir.

2009) (quotations and alterations omitted). Under Oklahoma law, equitable tolling is

appropriate when: (1) there is a legal disability because the plaintiff’s competency is

impaired or the plaintiff has not yet reached the age of majority; or (2) when “defendants

engage in false, fraudulent or misleading conduct calculated to lull plaintiffs into sitting

on their rights.” Id. (quotations omitted). This court has also noted that “‘exceptional

circumstances’” may justify equitable tolling. Id. (quoting Alexander v. Oklahoma, 382

F.3d 1206, 1217 (10th Cir. 2004)).

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       None of the grounds for equitable tolling exist in this case. Mr. Breedlove has

never claimed that he is incompetent or that Defendants engaged in false, fraudulent or

misleading conduct calculated to lull him into sitting on his rights. Moreover, although

Mr. Breedlove alleges improprieties by Defendants, he has not articulated specific

circumstances warranting tolling for exceptional circumstances. Accordingly, the district

court correctly granted summary judgment for Defendants on these claims.

       3.       Martinez Report

       Finally, Mr. Breedlove argues that the district court improperly relied upon the

Defendants’ Martinez report to decide contested issues of fact and grant summary

judgment in their favor. He contends that the district court overlooked the “mountain of

affidavits, medical reports and entries, requests to staff, grievances, letters and other

ODOC policy statements” he presented, instead “taking defendants [sic] unsupported

assertions . . . in the [] Martinez report to be factual.” We disagree.

       The purpose of a Martinez report is to “develop a record sufficient to ascertain

whether there are any factual or legal bases for the prisoner’s claims.” Hall, 935 F.2d at

1109. “On summary judgment, a Martinez report is treated like an affidavit, and the court

is not authorized to accept its fact findings if the prisoner has presented conflicting

evidence.” Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992). Accordingly,

a court may not rely on a Martinez report to resolve material disputed facts. Hall, 935

F.2d at 1109.

       Here, however, the district court did not resolve any disputed material facts in

                                             -7-
granting summary judgment. As shown above, summary judgment was proper as to each

and every claim which was not dismissed. Although the court may not rely on a Martinez

report to decide contested issues of material fact, Mr. Breedlove has not shown any

conflicting evidence regarding his failure to exhaust or the timeliness of his 2004 and

2005 claims.

       4.      Supervisory Liability

       The magistrate recommended that Mr. Breedlove’s claim against Defendants

Harvoneck, Sirmons, Jones, and Morton be dismissed because he had failed to allege an

“affirmative link” sufficient to support a claim of supervisory liability. Mr. Breedlove

objected, noting that Defendant Harvoneck was the acting warden when he filed a

grievance based on January 2007 discipline and that Defendant Morton affirmed the

decision. The district court construed his objection as a request to amend his complaint to

add additional factual allegations against Defendants. Mr. Breedlove now contends that

the district court erred by denying him leave to amend his complaint.

       Mr. Breedlove misconstrues the district court’s order. The court did not deny him

leave to amend; indeed, the court considered his complaint as amended by his objection

to the magistrate’s report and recommendation. Despite granting Mr. Breedlove leave to

amend, however, the court ruled that he had “fail[ed] to identify any misconduct by these

defendants” and had not stated “what, if any, due process violation occurred as a result of

their actions or inactions regarding any grievance [he] filed concerning his January 2007,

discipline.” Accordingly, the district court appropriately granted Mr. Breedlove’s motion

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to amend and his argument is without merit.

C.     Additional Arguments

       In addition to the arguments addressed above, Mr. Breedlove contends that the

court improperly divided his “one allegation of ‘retaliation’ into 5 or 6 separate issues,”

undermining his complaint such that it resulted in dismissal and summary judgment. We

disagree. Mr. Breedlove’s complaint itself alleges separate causes of action, and the

district court correctly addressed each in turn.

       Mr. Breedlove also contends that the district court’s construction of his pro se

complaint was “more strict than liberal” and thus denied him due process under the

Fourteenth Amendment. We find no merit in this argument. Although a district court

must construe pro se pleadings liberally, a pro se plaintiff must still allege sufficient facts

on which a recognized legal claim can be based. Hall, 935 F.2d at 1110. The district

court correctly held Mr. Breedlove to that standard.

                                    III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s orders dismissing and

denying all of Mr. Breedlove’s claims. Additionally, we DENY Mr. Breedlove’s pending

motions for the appointment of counsel, an independent medical examination, a

preliminary injunction, and to overrule defense objection. Finally, we remind Mr.




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Breedlove of his obligation to make partial payments until his appellate filing fee has

been paid in full.


                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




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