                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                   May 5, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                           FOR THE TENTH CIRCUIT




    PHILLIP MARTIN,

               Plaintiff-Appellant,

    v.                                                  No. 09-6148
                                                (D.C. No. 5:06-CV-01117-D)
    CORNELL COMPANIES, INC.;                           (W.D. Okla.)
    WARDEN SAM CALBONE; NURSE
    TILLIE; NURSE LEDFORD;
    RICHARD BARGER, Program
    Director; C. HOWELL, Ed. Asst. of
    CCI; STEVE DEVAUGHN, Major;
    DWAYNE BRANNAN, SIS Lt. CCI;
    L. GARRISON, Captain,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Phillip Martin, an Oklahoma state prisoner proceeding pro se, 1 appeals the

district court’s orders granting defendants’ motions to dismiss and for summary

judgment on his claims brought under 42 U.S.C. § 1983. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.

                                  BACKGROUND

      Mr. Martin was formerly incarcerated at the private prison, Great Plains

Correctional Facility, which is owned and operated by defendant Cornell

Companies, Inc., under a contract with the Oklahoma Department of Corrections.

He filed this § 1983 action against Cornell Companies and various individuals

employed at Great Plains Correctional Facility alleging (1) breach of the

contractual obligation to provide qualified personnel who would follow and fulfill

the terms of the contract; (2) unlawful confiscation and destruction of property;

(3) retaliation; (4) conspiracy to retaliate; (5) violation of due process through a

conspiracy to delay a sentence reduction; (6) failure to respond to a grievance;

(7) failure to provide proper medical care and access to medical records;

(8) arbitrary and capricious classification; (9) wrongful job termination;

(10) entry of perjured information in the state court record; (11) defamation;

(12) violation of the Oklahoma Constitution; and (13) issuance of a false rule

infraction. Defendants moved to dismiss or for summary judgment. The

1
       Because Mr. Martin is representing himself on appeal, we liberally construe
his pleadings, but we do not act as his advocate. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).

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magistrate judge recommended that the district court (1) dismiss without

prejudice as unexhausted the confiscation and destruction of property, denial of

medical care, improper classification, and wrongful job termination claims;

(2) dismiss without prejudice for failure to state a valid claim the deprivation of

due process through a conspiracy to delay a sentence reduction and failure to

respond to a grievance claims; (3) dismiss with prejudice for failure to state a

valid claim the entry of perjured information on the state-court record and

issuance of a false rule infraction claims; and (4) deny the motion to dismiss on

the denial of access to medical records, retaliation, conspiracy to retaliate,

defamation, and violation of the Oklahoma Constitution claims. Mr. Martin

moved to adopt the magistrate judge’s recommendation. The district court did so,

rejecting defendants’ objections.

      Volunteer counsel represented Mr. Martin for the remainder of the district

court proceedings. Defendants moved for summary judgment on the claims that

had not been dismissed. The court granted the motion, determining that

(1) Mr. Martin failed to argue facts or provide legal authority precluding

summary judgment on the access to medical records and violation of the

Oklahoma Constitution claims; (2) there was insufficient evidence to support an

inference by a fair-minded jury of a retaliatory motive; (3) the conspiracy to

retaliate claim lacked the required existence of an agreement and concerted action

toward retaliation; and (4) the defamation claim was time-barred.

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      Mr. Martin appealed. He argues that (1) Cornell Companies was required

by contract with the Oklahoma Department of Corrections to provide qualified

personnel to implement the terms and conditions of the contract; (2) he received

inadequate medical care and was denied access to his medical records; (3) he

exhausted his administrative remedies; (4) he received a misconduct and his

custody status was changed in retaliation for filing a grievance; (5) defendants

falsely described him as a management problem and his defamation claim was not

time-barred; (6) he was improperly terminated from his prison job; (7) the

individual defendants conspired to retaliate against him by instituting disciplinary

action, causing him to be placed in restrictive housing, to be demoted, to suffer

delay of and removal of his earned credits, and to be transferred to a higher

security facility; and (8) his two volunteer counsel were ineffective.

                                     ANALYSIS

                                   Contract Claim

      Mr. Martin first asserts the contract claim that he raised in his complaint.

This claim was not decided in either of the district court’s orders, and Mr. Martin

never objected in the district court that it was not addressed. Moreover, he never

listed this claim in the parties’ joint status report and discovery plan. Because it

was not listed, it is waived, even though it appeared in the complaint. Cf. Wilson

v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (“claims, issues, defenses, or

theories of damages not included in the pretrial order are waived even if they

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appeared in the complaint”). We will not consider this claim in the first instance.

See Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1271 (10th Cir. 2000)

(recognizing that this court will consider matters not argued in district court only

in unusual circumstances when public interest is implicated or manifest injustice

would result, or when issue is matter of law with certain resolution).

          Claims Decided by the Order Addressing the Motion to Dismiss

      Mr. Martin’s appellate arguments concerning the claims dismissed in the

district court’s order adopting the magistrate judge’s report and recommendation

are waived. Mr. Martin asked the district court to adopt the magistrate judge’s

recommendation that these claims be dismissed, and the court did so. Mr. Martin

cannot now change his mind and ask us to review the claims.

   Claims Decided by the Order Addressing the Motion for Summary Judgment

      Mr. Martin argues that the district court improperly granted summary

judgment on his access to medical records, retaliation, conspiracy, and defamation

claims. “This court reviews an award of summary judgment de novo, viewing the

record in the light most favorable to the non-moving party.” Abdulhaseeb v.

Calbone, ___ F.3d ___, No. 08-6092, 2010 WL 1254350, at *6 (10th Cir. Apr. 2,

2010) (quotation marks omitted). The district court appropriately grants summary

judgment “if the pleadings, the discovery and disclosure material on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

                                          -5-
      Applying these standards, we have carefully reviewed the parties’ appellate

briefs, the district court record, and relevant legal authority. After doing so, we

conclude, for substantially the same reasons stated by the district court in its

order filed July 24, 2009, that summary judgment was appropriate. R. at 551-62.

                          Ineffective Assistance of Counsel

      Mr. Martin argues that his two volunteer counsel were ineffective. 2 We

reject this argument because there is no constitutional right to the assistance of

counsel in civil cases. See MacCuish v. United States, 844 F.2d 733, 735

(10th Cir. 1988).

                        MANDAMUS AND PROHIBITION

      Mr. Martin requests that we exercise our original jurisdiction to issue a writ

of mandamus and prohibition (1) directing his second volunteer counsel to

provide him with copies of all documents from his case in the district court, all

correspondence, and all medical files subpoenaed by his first volunteer counsel;

and (2) prohibiting counsel from selling or delaying providing the documents to

him. Also, Mr. Martin seeks a writ of mandamus and prohibition against the

Oklahoma Department of Corrections and its personnel preventing it from causing

delay or obstructing his access to the courts by limiting his use of the law library.

Even assuming that Mr. Martin appropriately seeks mandamus or prohibition


2
       The first volunteer counsel moved to withdraw based on a conflict of
interest. After withdrawal, subsequent volunteer counsel entered an appearance.

                                          -6-
relief against his counsel and the Oklahoma Department of Corrections, we

conclude that Mr. Martin has failed to show that his right to either a writ of

mandamus or of prohibition is clear and indisputable. See In re Kozeny, 236 F.3d

615, 620 (10th Cir. 2000) (mandamus); Sangre de Cristo Cmty. Mental Health

Serv., Inc. v. United States (In re Vargas), 723 F.2d 1461, 1468 (10th Cir. 1983)

(prohibition). The district court documents are before us in the record on appeal,

and Mr. Martin has alternative remedies to obtain the other relief he desires, see

Mallard v. United States Dist. Ct., 490 U.S. 296, 309 (1989) (requiring mandamus

“petitioner[ to] show that [he] lack[s] adequate alternative means to obtain the

relief [he] seek[s]”). Accordingly, we deny this motion.

                 CERTIFICATION OF STATE LAW QUESTION

      Mr. Martin moves for certification of several questions, which he contends

are questions of state law, involving his contract claim and various other claims

decided by the district court. Certification may be “appropriate where the legal

question at issue is novel and the applicable state law is unsettled.” Enfield

ex rel. Enfield v. A.B. Chance Co., 228 F.3d 1245, 1255 (10th Cir. 2000)

(quotation marks omitted). But “[w]e generally will not certify questions to a

state supreme court when the requesting party seeks certification only after

having received an adverse decision from the district court.” Id. (quotation marks

omitted).




                                          -7-
      Mr. Martin sought certification only after he received an unfavorable

district-court decision and the questions he presents for certification are neither

novel nor unsettled by state law. Thus, we deny certification.

                                  CONCLUSION

      The judgment of the district court is AFFIRMED. Mr. Martin’s

(1) application to assume original jurisdiction and petition for a writ of mandamus

and prohibition and (2) motion to certify a question of state law are DENIED.

Although Mr. Martin was granted leave to proceed on appeal without prepayment

of the appellate filing fee, he is reminded that he must continue to make partial

payments until the fee is paid.


                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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