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

                            FOR THE TENTH CIRCUIT                          April 12, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
LOUIS DOUGLAS CRAFT, JR.,

             Plaintiff-Appellant,

v.                                                         No. 12-6245
                                                    (D.C. No. 5:11-CV-00925-R)
JOHN MIDDLETON, Assistant Warden;                          (W.D. Okla.)
DON POPE, Legal Program Director,

             Defendants-Appellees.


                             ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


      Louis Douglas Craft, Jr., a state prisoner appearing pro se,1 appeals the

dismissal of his 42 U.S.C. § 1983 civil rights action. Exercising our jurisdiction

under 28 U.S.C. § 1291, we affirm.



      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
         Because Mr. Craft is proceeding pro se, “[w]e must construe his arguments
liberally; this rule of liberal construction stops, however, at the point at which we
                                                                               (continued)
                                  I.   BACKGROUND

      Mr. Craft is an inmate in the custody of the Oklahoma Department of

Corrections. In August 2011, he filed this § 1983 action pro se in the United States

District Court for the Western District of Oklahoma. He alleged retaliation for the

exercise of constitutional rights and violation of his right to meaningful access to the

courts.

      Mr. Craft’s complaint alleged that on July 14, 2010, while housed at the Davis

Correctional Facility (“DCF”), he was charged with misconduct and was

subsequently found guilty of menacing. At his request, he was transferred on

September 13, 2010, to the Cimarron Correctional Facility (“CCF”)2 and placed in

the prison’s Intensive Supervision Unit (“ISU”). According to prison policy, Mr.

Craft’s misconduct conviction and record made him eligible for placement in the

prison’s ISU, which attempts to control and modify disruptive inmate behavior. He

alleged that the harsher confinement in ISU was retaliatory and limited his access to

courts.




begin to serve as his advocate.” United States v. Pinson, 584 F.3d 972, 975 (10th
Cir. 2009).
      2
        Both DCF and CCF are private prison facilities owned and operated by
Corrections Corporation of America (CCA), which contracts with the Oklahoma
Department of Corrections to house Oklahoma inmates.



                                          -2-
       Mr. Craft named as defendants John Middleton, assistant warden at CCF, and

Don G. Pope, an attorney who contracts with CCF to provide its inmates with legal

services.3 The complaint asserted claims of “retaliations” and denial of “meaningful

access to courts.” Admin. R. at 20, 25. The district court construed Mr. Craft’s

retaliation claim to be against Warden Middleton and his access to courts claim to be

against Mr. Pope.

       The retaliation claim alleged that Mr. Craft was placed in ISU as an adverse

action in retaliation for filing a civil suit in the United States District Court for the

Eastern District of Oklahoma against DCF prison officials. His complaint identified

that suit as “CV-10-375-RAW-SPS,” Admin. R. at 25, which was filed on

October 12, 2010.4 The access to courts claim asserted that Mr. Pope failed to




       3
         As we have done before, for our analysis of Mr. Craft’s § 1983 claim, we will
assume, and defendants do not contest, that defendants are state actors. See e.g., Phillips
v. Tiona, 2013 WL 239891, at *12 (10th Cir. Jan. 23, 2013) (unpublished) (noting that
“[w]e have long assumed that employees of a private prison act under color of state law
for purposes of § 1983 suits by inmates”); Marsh v. Newton, 1998 WL 39235, at *4 (10th
Cir. Jan. 30, 1998) (unpublished) (“We assume, for purposes of this analysis, that
Corrections Corporation of America, the private company operating the women’s prison,
and its employees are state actors.”); see also Hall v. Witteman, 584 F.3d 859, 864
(10th Cir. 2009) (recognizing that § 1983 liability requires violation of a
constitutional right by a person acting under color of state law).
       4
         In the district court proceedings, the magistrate judge took judicial notice of
the docket in the United States District Court for the Eastern District of Oklahoma,
which reflected an October 12, 2010, filing date. See Admin. R. at 653. We take
judicial notice of the same. See United States v. Smalls, 605 F.3d 765, 768 n.2
(10th Cir. 2010).


                                            -3-
provide case law to him that was relevant to his federal habeas application under 28

U.S.C. § 2254, causing the application to be deficient and untimely filed.5

      Warden Middleton moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing

that Mr. Craft had failed to exhaust his administrative remedies under the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Mr. Pope moved for

summary judgment on the same basis and, additionally, on the merits of the access to

courts claim. Pursuant to § 1997e(c), which directs a court to dismiss frivolous

prison condition claims on its own motion, the magistrate judge recommended,

without addressing exhaustion, dismissal of the retaliation claim for failure to state a

valid claim. See Woodford v. Ngo, 548 U.S. 81, 101 (2006) (recognizing that

PLRA’s exhaustion requirement is not jurisdictional and district court may dismiss

meritless claims without first addressing exhaustion). The magistrate judge also

recommended granting summary judgment against Mr. Craft on the access to courts

claim. The district court adopted these recommendations. Mr. Craft now appeals.

                                   II. DISCUSSION

                            A. Dismissal of Retaliation Claim

      “Prison officials may not retaliate against or harass an inmate because of the

inmate’s exercise of his right of access to the courts.” Smith v. Maschner, 899 F.2d

940, 947 (10th Cir. 1990); see, e.g., Williams v. Meese, 926 F.2d 994, 998 (10th Cir.


      5
         Craft’s habeas petition, Craft v. Taylor, Civ.-10-1230-HE (W.D. Okla.), was
filed on November 15, 2010. See Admin. R. at 60.


                                          -4-
1991) (prison officials may not retaliate for filing administrative grievances). The

plaintiff must prove “that the defendant’s adverse action was substantially motivated

as a response to the plaintiff’s exercise of constitutionally protected conduct.” Shero

v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). In other words, “a plaintiff

must prove that but for the retaliatory motive, the incidents to which he refers . . .

would not have taken place.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.

1998) (internal quotation marks omitted). And he “must allege specific facts showing

retaliation.” Id. (internal quotation marks omitted).

      The magistrate judge concluded Mr. Craft failed to allege facts showing that

1) but for Warden Middleton’s alleged retaliatory motive, Mr. Craft would not have

been placed in ISU; 2) Warden Middleton personally participated in Mr. Craft’s ISU

placement; and 3) Warden Middleton had any knowledge of Mr. Craft’s suit against

DCF prison officials. Mr. Craft does not appeal the dismissal of his retaliation claim

as against Warden Middleton. In fact, he states in his reply brief that the district

court did not err in this regard. See Aplt. Reply Br. at 5.

      Instead, his argument appears to be twofold: 1) the district court erred in

failing to allow Mr. Craft to amend his complaint to substitute Joseph Taylor, warden

at CCF, for Warden Middleton; and 2) Mr. Craft’s complaint alleged a retaliation

claim against Mr. Pope. We address each of these claims of error in turn.




                                           -5-
1. Amendment of Complaint

      Under Fed. R. Civ. P. 15(a)(1)(B), Mr. Craft could have filed an amended

complaint as a matter of course within 21 days of Warden Middleton’s Rule 12(b)(6)

motion, but he did not. He was thereafter required to seek leave of the court to

amend his complaint under Fed. R. Civ. P. 15(a)(2). See U.S. ex. rel. Ritchie v.

Lockheed Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009) (“Once the time for

amendment as a matter of course has passed, pleadings can be amended only by

consent of the opposing party or leave of the court.”). Mr. Craft did not file such a

motion to substitute Warden Taylor for Warden Middleton regarding retaliation for

his October 2010 suit against DCF officials.6

      Instead, in his objections to the magistrate judge’s report and recommendation

to dismiss the retaliation claim against Warden Middleton, Mr. Craft requested leave

to substitute Warden Taylor for Warden Middleton, but did not submit a proposed

amended complaint. The district court nonetheless treated Mr. Craft’s request as a


      6
         The record reveals that Mr. Craft filed a motion for leave to amend his
complaint under Rule 15 on January 9, 2012, and a motion to file a supplemental
amended complaint on February 2, 2012. But these proposed amendments attempted
to assert claims against Warden Taylor and other CCF prison officials for alleged
retaliatory conduct that occurred on August 31, 2011, in response to Mr. Craft’s
filing of the underlying action. The magistrate judge recommended denying these
motions because they sought to assert unrelated claims against unrelated, different
parties, and suggested that Mr. Craft file a separate complaint if he wished to pursue
these new claims. See Admin. R. at 653-54. The district court adopted the
recommendation. Mr. Craft does not appeal the denial of these motions.



                                         -6-
proper motion for leave to amend but denied it as futile. The district court concluded

that Mr. Craft’s objection did not assert facts alleging Warden Taylor’s personal

participation, knowledge of the October 2010 suit against DCF officials, or a

retaliatory motive and, thus, suffered from the same deficiencies as the original

complaint against Warden Middleton. The district court also determined Mr. Craft

did not establish a causal connection because the protected conduct — the filing of

the October 2010 lawsuit against DCF officials — occurred after the alleged

retaliatory placement in ISU in September 2010. See Admin. R. at 684.

      We review the district court’s denial of Mr. Craft’s motion to amend for abuse

of discretion. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007). Although

leave to amend is to be freely given when justice so requires, a motion to amend may

be denied if the amendment is futile. Id. “A proposed amendment is futile if the

complaint, as amended, would be subject to dismissal.” Id. (internal quotation marks

omitted). Where, as here, leave is denied “based on a determination that amendment

would be futile, our review for abuse of discretion includes de novo review of the

legal basis for the finding of futility.” Cohen v. Longshore, 621 F.3d 1311, 1314

(10th Cir. 2010) (internal quotation marks omitted).

      We have reviewed the parties’ briefs, the record on appeal, and the relevant

legal authority. We conclude, as did the district court, that Mr. Craft failed to explain

how his proposed amendment would cure deficiencies in his original complaint.

See Hall, 584 F.3d at 868. We agree with the district court that the proposed


                                          -7-
amendment was futile and subject to dismissal. Accordingly, we affirm the district

court’s denial of leave to amend for substantially the same reasons given by the

district court judge.

2. Retaliation Against Mr. Pope

       Mr. Craft argues that Mr. Pope “retaliated [against him] with the holding of

legal cases in an attempt to deter [Mr. Craft’s] civil and criminal cases” and also

“conspired with (DCF) and (CCF) officials . . . with the holding of legal assistance.”

Aplt. Opening Br. at 3, 6. It appears Mr. Craft wishes to assert a retaliation claim

against Mr. Pope on the theory that Mr. Pope acted adversely toward him because he

filed suit against DCF officials in October 2010. He also alleges in his reply brief

that in response to Mr. Pope’s motion for summary judgment on the access to courts

claim, Mr. Craft set forth “specific facts to prove [Mr. Pope’s] retaliation.” Aplt.

Reply Br. at 2. But Mr. Craft’s opposition to Mr. Pope’s motion for summary

judgment only addressed his claim for denial of access to courts based upon

Mr. Pope’s alleged failure to provide case law. It did not argue, let alone mention,

retaliation by Mr. Pope.

       Defendants argue, and we agree, that Mr. Craft first alleged retaliation against

Mr. Pope in his objection to the magistrate judge’s report and recommendation to

grant summary judgment in favor of Mr. Pope on the access to courts claim. Issues

raised for the first time in objections to the magistrate judge’s recommendation are




                                          -8-
deemed waived. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001).

We therefore decline to address Mr. Craft’s argument.

                   B. Summary Judgment on Access to Courts Claim

      In appealing the summary judgment in favor of Mr. Pope on the access to

courts claim, Mr. Craft argues that summary judgment was improper because his

complaint properly alleged retaliation. But the district court granted summary

judgment for Mr. Pope on Mr. Craft’s claim of denial of access to courts. As

previously discussed, Mr. Craft did not raise a retaliation claim against Mr. Pope

before the magistrate judge.

      Mr. Craft does not otherwise appear to appeal the grant of summary judgment

on the denial of access to courts. But even assuming that he does, and reviewing the

grant of summary judgment de novo, we perceive no error. State inmates have a

constitutional right to “‘adequate, effective, and meaningful’ access to the courts.”

Petrick v. Maynard, 11 F.3d 991, 994 (10th Cir. 1993) (quoting Bounds v. Smith,

430 U.S. 817, 822 (1977)). States may assure this right by providing law libraries or

lawyer assistance. Id. An inmate claiming a denial of access to courts must show

“actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996).

      Mr. Pope contracts with CCA to provide legal assistance to inmates housed at

CCF. Mr. Craft alleged that Mr. Pope failed to provide case law for an “actual

innocence claim,” and, therefore, Mr. Craft’s filing of a federal habeas petition in

November 2010 was untimely and deficient. The magistrate judge recommended


                                          -9-
summary judgment, explaining that Mr. Craft failed to allege facts showing actual

injury because the statute of limitations period on Mr. Craft’s habeas petition had

expired before Mr. Craft requested legal materials from Mr. Pope. The magistrate

judge concluded that Mr. Pope was not responsible for the untimely filing of Mr.

Craft’s habeas petition or Mr. Craft’s inability to present an equitable tolling

argument.

      As to equitable tolling of the limitations period, the magistrate judge

determined that Mr. Craft’s self-defense argument in his habeas petition was one of

legal innocence as opposed to factual innocence and, thus, not a basis for equitable

tolling. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (recognizing that

equitable tolling under Antiterrorism & Effective Death Penalty Act would be

appropriate where a prisoner is actually innocent); see also Laurson v. Leyba, 507

F.3d 1230, 1233 (10th Cir. 2007) (noting that actual innocence means factual

innocence); Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (noting that legal

defenses relate to legal, not factual innocence). We agree, and not for the first time.

We previously denied a certificate of appealability for Mr. Craft’s appeal of the

district court’s dismissal of his § 2254 habeas application because the application was

statutorily time-barred and Mr. Craft’s claim of actual innocence was one of legal,

not factual, innocence. See Craft v. Jones, No. 11-6131, 435 F. App’x 789 (10th Cir.

2011). Finally, the magistrate judge determined that Mr. Craft failed to show how

case law would have proved a claim of factual innocence.


                                         - 10 -
       We have reviewed the parties’ briefs, the record on appeal, and the relevant

legal authority, and we agree with the analysis of the magistrate judge set forth in her

report and recommendation on this issue, which the district court adopted. We

therefore affirm the grant of summary judgment on Mr. Craft’s denial of access to

courts claim for substantially the same reasons given by the magistrate judge and

district court judge.

                                  III. CONCLUSION

       The judgment of the district court is affirmed. We deny Mr. Craft’s motion to

proceed in forma pauperis.


                                                  ENTERED FOR THE COURT



                                                  Scott M. Matheson, Jr.
                                                  Circuit Judge




                                         - 11 -
