                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                  UNITED STATES CO URT O F APPEALS
                                                           March 19, 2007
                         FO R TH E TENTH CIRCUIT        Elisabeth A. Shumaker
                                                            Clerk of Court



D O N A LD EU G EN E H A LPIN ,

          Plaintiff-Appellant,

  v.                                           No. 06-3034
                                        (D.C. No. 01-CV-3188-M LB)
CHARLES E. SIM M ONS, Secretary                   (D . Kan.)
of K ansas Department of Corrections;
M ICHAEL W . M OORE, Secretary of
Florida D epartment of Corrections;
ROBERT M . PORTER, Interstate
Compact Coordinator for Florida
Department of Corrections; PATTI
DYESS, Assistant Administrator for
Florida D epartment of Corrections;
ELLEN B. ROBERTS, Classification
Services, Bureau of Inmate
Classification and M anagement for
Florida D epartment of Corrections;
NADIN E K. BELK, Prison Health
Services Administrator at Lansing
Correctional Facility; CH AR LES
HAVNER, Prison Health Services
Dentist; ELIZABETH L. RICE, Unit
Team M anager, Lansing Correctional
Facility; STA TE O F KANSAS,

          Defendants,

       and

W ILLIA M L. CUM M INGS, Deputy
Secretary of Kansas Department of
Corrections; DA VID R . M CK UN E,
W arden of Kansas Department of
Corrections; PRISONER HEALTH
    SERVICES, INC.; AKIN AYENI,
    Prison Health Services State M edical
    Director for Kansas Department of
    C orrections; STEPH EN D A Y AN,
    Prison Health Services M edical
    Physician; SA NDIP N AIK, Prison
    Health Services M edical Physician;
    ANGELA GOEHRING, Senior Health
    Services A dministrator, Prison Health
    Services, Inc.; CA RLOS PETIT,
    Prison Health Services M edical
    Physician; JAM ES R. BAKER, Prison
    Health Services M edical Physician;
    DUANE M UCKENTHALER, Unit
    Team M anager, Lansing Correctional
    Facility,

            Defendants-A ppellees.




                             OR D ER AND JUDGM ENT *


Before TY M K O VIC H, A ND ER SO N, and BALDOCK , Circuit Judges.


         Plaintiff-appellant Donald Eugene Halpin, a prisoner appearing pro se,

appeals from the district court’s order granting summary judgment to

defendants-appellees on his claim that they were deliberately indifferent to his


*
       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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                             -2-
serious medical needs in violation of the Eighth Amendment. W e have

jurisdiction under 28 U.S.C. § 1291 and affirm in part and vacate and remand in

part.

        This is the second appeal in this case. Appellant was convicted in 1980 in

Florida and was originally housed there. He was transferred in July 1997 to

Lansing, Kansas, and w as moved back to Florida in December 2003. He had tw o

heart attacks while originally in Florida and arrived in Kansas already sick and on

m edication. H e also developed a serious skin infection and sinus problems. H e

filed suit in M ay 2001, asserting various claims related to his health care against

numerous defendants in Kansas and Florida. After the district court dismissed the

complaint, we held in the prior appeal that appellant had stated a claim for

deliberate indifference, and we remanded this sole claim. On remand, appellant

filed an amended complaint and the case proceeded to the summary judgment

stage. The parties filed cross-motions for summary judgment. In a sixty-two

page memorandum and order, the district court analyzed the record and granted

summary judgment to appellees.

        Appellant argues in this appeal that the district court erred by: (1) granting

summary judgment to appellees; (2) failing to give him notice before he filed his

brief in opposition of the requirements of summary judgment, including that he

needed an affidavit from a medical expert; (3) granting summary judgment prior

to the completion of discovery; (4) denying his repeated requests for appointment

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of counsel; and (5) denying him leave to file a second amended complaint adding

claims asserting the denial of medical treatment by the Kansas defendants after

the filing of this lawsuit and that defendants retaliated against him for filing this

lawsuit.

      W e consider appellant’s last issue first. The magistrate judge denied

appellant leave to amend on the ground that he failed to show that he had

exhausted administrative remedies on the claims he wished to add, as was

required at the time of the magistrate judge’s order by Steele v. Federal Bureau of

Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003); overruled by Jones v. Bock,

127 S. Ct. 910 (Jan. 22, 2007). See R., Doc. 124, at 1-3. The requirement that

inmates specially plead or demonstrate exhaustion was recently rejected by the

Supreme Court in Jones v. Bock, 127 S. Ct. at 921. See Smith v. Cowman,

No. 06-3272, slip op. at 3 (10th Cir. M ar. 1, 2007). Appellees argue that

appellant’s argument is waived because he did not file objections to the

magistrate judge’s order denying leave to amend. Because the magistrate judge’s

order did not inform appellant that a failure to object on any issue would result in

a waiver, however, our waiver rule does not apply. See R., Doc. 124;

M orales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). W e vacate the

denial of appellant’s motion for leave to file a second amended complaint and

remand the matter for reconsideration in light of Jones v. Bock, 127 S. Ct. 910.

See Smith, No. 06-3272, slip op. at 3.

                                          -4-
      W e are otherwise unpersuaded by appellant’s claims of error. W e review

the grant of summary judgment de novo, applying the same standard as the

district court under Fed. R. Civ. P. 56(c). M acKay v. Farnsworth, 48 F.3d 491,

492 (10th Cir. 1995). W e will affirm if the district court correctly determined

that “there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law .” Rule 56(c). W hether the district court

was required to provide appellant advance notice of the requirements of opposing

summary judgment is a legal question that we also review de novo. Dang v.

U N U M L ife Ins. C o. of A m., 175 F.3d 1186, 1189 (10th Cir. 1999). W e review a

district court’s discovery rulings for an abuse of discretion. The Procter &

Gamble Co. v. Haugen, 427 F.3d 727, 742-43 (10th Cir. 2005). W e also review

the denial of a motion for appointment of counsel for an abuse of discretion. Hill

v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004).

      W e reject appellant’s argument that the district court should have provided

him advance notice of the requirements of opposing appellees’ motion for

summary judgment, including that he needed an affidavit from a medical expert.

The authorities upon which appellant relies are from other circuits, not this court,

and, in any event, they require only that a district court provide notice to a pro se

prisoner litigant of the general requirements of summary judgment, as stated in

Rule 56(e) and also in plain English. See Neal v. Kelly, 963 F.2d 453, 456-57

(D .C. Cir. 1992); Timms v. Frank, 953 F.2d 281, 283-85 (7th Cir. 1992).

                                          -5-
Rule 56(e) states generally that “the adverse party’s response, by affidavits or as

otherw ise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial.” Appellant’s cited authorities do not require a district

court to provide specific notice to a pro se prisoner litigant that he needs an

affidavit from a medical expert. See Neal, 963 F.2d at 456-57; Timms v. Frank,

953 F.2d at 283-85.

      Our ow n case, Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.

1985), also should not be read that broadly. Although we stated in Jaxon that

“[d]istrict courts must take care to insure that pro se litigants are provided with

proper notice regarding the complex procedural issues involved in summary

judgment proceedings,” id. (quotation omitted), all we required in that case was

that the district court grant a continuance so that the pro se litigant would have “a

meaningful opportunity to remedy the obvious defects in his summary judgment

materials,” when the litigant had asked for more time to do so, id. (quotation

omitted). Appellant has past litigation experience from many other lawsuits he

has filed, and his filings in this case demonstrate that he already knew, without

any special prior notice from the district court, that he needed to produce

evidence in support of his opposition to appellees’ motion for summary judgment.

See M cPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999). W e are

unpersuaded in the circumstances of this case that any special notice was

required.

                                          -6-
      W e are likew ise unconvinced that the district court granted summary

judgment prior to the completion of discovery. Appellant participated in a

scheduling conference that produced an extensive scheduling order. R., Doc. 71.

Appellant acknowledges that the deadline for completion of discovery was

October 28, 2005. Aplt. Opening Br. at 14. Although he asserts that he requested

more time for discovery, id. at 13, he does not point to any order granting his

request and extending the deadline. Therefore, we cannot conclude that the

district court abused its discretion.

      Appellant also argues that the district court erred by denying his repeated

requests for appointment of counsel. Appellees argue that the issue is waived

because appellant failed to object to the magistrate judge’s rulings. Although the

magistrate judge denied appellant’s first motion for counsel, the district court

denied the second motion by implication of granting summary judgment to

appellees. R., Doc. 269. The district court ended the case by entering judgment,

R., Doc. 270, before the magistrate judge entered her order purporting to deny as

moot a number of motions, including appellant’s motion for appointment of

counsel, id., Doc. 271. Therefore, appellant’s challenge to the denial of counsel

is not waived. Nevertheless, we find no abuse of discretion in the district court’s

implicit denial of appellant’s motion for counsel, since the district court correctly

determined that there were no triable issues of fact. 28 U.S.C. § 1915 does not

require the district court to appoint counsel.

                                          -7-
      Finally, with regard to the grant of summary judgment, we have carefully

reviewed the parties’ materials in light of the applicable law . W e are

unpersuaded by appellant’s claims of error and affirm the grant of summary

judgment for substantially the same reasons as those set forth in the district

court’s thorough and well-written memorandum and order.

      AFFIRM ED in part and VACATED in part and REM ANDED for additional

proceedings.

                                                     Entered for the Court



                                                     Timothy M . Tymkovich
                                                     Circuit Judge




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