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

                             FOR THE TENTH CIRCUIT                        March 31, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 MAURICE L. MILES, JR.,

       Plaintiff - Appellant,

 v.                                                         No. 19-3133
                                                  (D.C. No. 5:16-CV-03152-EFM)
 DEPUTY CONRAD, in his official                              (D. Kan.)
 capacity with Reno County Sheriff’s
 Department; DEPUTY SWONGER, in his
 official capacity with Reno County
 Sheriff’s Department; DEPUTY
 MONDRAGON, in his official capacity
 with Reno County Sheriff’s Department;
 DEPUTY CARDER, in his official
 capacity with Reno County Sheriff’s
 Department,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, EID, and CARSON, Circuit Judges.
                  _________________________________

      Maurice Miles, Jr., a Kansas inmate appearing pro se, appeals from the district

court’s entry of final judgment in favor of Defendants on his 42 U.S.C. § 1983 claims


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
stemming from an assault he endured at the hands of another inmate. Exercising

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

                                  I.   Background

      Officials at the Reno County Jail assigned Mr. Miles to a cell he shared with

inmate Robert Sallabedra. Mr. Miles did not get along with Mr. Sallabedra. He

voiced several complaints about his housing assignment via the jail’s “turnkey

system” for inmate communications. The district court recounted Mr. Miles’s

complaint history:

             On May 29, 2016, Plaintiff submitted his first turnkey request
      related to his cellmate. In this request, submitted at 5:03 a.m., he stated:
      “Please can I move cells? i keep catching my cellie digging through my
      stuff and its pissing me off.” Deputy Nall reviewed and denied the
      request on May 29 at 6:47 p.m.

             At 6:08 p.m., on May 30, 2016, Plaintiff submitted a second
      turnkey request. In it, he said: “I dnt know why yall do this to me. Is it
      a set up to fail? I do not get along with my cellie at as a room mate
      theres plenty of other cells in this pod that are open. Can you please
      move me?” The next day, at 6:20 p.m., Deputy Conrad responded:
      “You will not be moved.”

             Five days later, on June 4, 2016, at 8:09 p.m., Plaintiff sent a
      message: “I just to make sure that I dont get into any truble for the
      stolen books that my cellie has been hording in our cell the next time
      you shake down.” Deputy Nall responded with “Noted.”

             On June 6, Plaintiff sent the following message about his cell
      mate: “People are talking about woopin my cellie for stealing and tering
      up the librarybooks an he keeps stealing coffee from people as well.
      Something need to be done soon about it.” That same day, Deputy
      Wornkey replied with “noted.”

             On June 7, 2016, at 9:36 p.m., Plaintiff sent his fifth turnkey
      report about his cellmate: “Imasking that you please do something with
      my cellie, if he steals or disrespects me one more time Im gonna end up

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      in the hole. He constantly disrespects this whole pod. Im not going to
      keep putting up with his stealing from me problem.” There was no
      response to this message.

              On June 9, 2016, at 4:51 a.m., Plaintiff sent the following
      message: “Are yall realy serious? I mean we gave a nte t the gaurds last
      night with over 10 signatures on it to move salabedra out of this pod and
      yall still ignore us? So what do we do now? All go to the hole for
      handeling it our selvs? Everybody is ready to woop this dudes
      [expletive] if something dont happen. The stealing and disrespect has
      gone to far.”

R. Vol. II at 199–200.

      About 10 minutes after this last turnkey communication Mr. Miles and Mr.

Sallabedra had a physical altercation. Mr. Miles bases this suit on injuries he

sustained during his fight with Mr. Sallabedra.

      Mr. Miles filed three motions seeking appointment of counsel under

28 U.S.C. § 1915(e)(1). The district court denied each of these motions. The district

court dismissed the claims against Defendants Swonger, Mondragon, and Carder by

applying the doctrine of qualified immunity and Rule 12(b)(6). It then granted

summary judgment to Defendant Conrad. This appeal followed.

                                   II. Discussion

      As relevant to this appeal, Mr. Miles’s § 1983 claims seek damages for

Defendants’ alleged failure to protect him from the harm inflicted by Mr. Sallabedra,

in violation of his Eighth Amendment rights. The Eighth Amendment’s prohibition

of cruel and unusual punishment imposes a duty on prison officials to provide

humane conditions of confinement, including “reasonable measures to guarantee the

safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal

                                           3
quotation marks omitted). “This duty includes ‘a duty to protect prisoners from

violence at the hands of other prisoners.’” Requena v. Roberts, 893 F.3d 1195, 1214

(10th Cir. 2018) (quoting Farmer, 511 U.S. at 833), cert. denied, 139 S. Ct. 800

(2019). “To prevail on a failure to protect claim, an inmate must show (1) that the

conditions of his incarceration present[ed] an objective substantial risk of serious

harm and (2) prison officials had subjective knowledge of the risk of harm.” Id.

(internal quotation marks omitted). To satisfy the second prong, an official “must

both be aware of facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at

837.

A. Rule 12(b)(6) Dismissals

       We review the district court’s application of the doctrine of qualified immunity

and its Rule 12(b)(6) dismissal de novo. See Lincoln v. Maketa, 880 F.3d 533, 537

(10th Cir. 2018).

       “The doctrine of qualified immunity protects officials from civil liability as

long as they do not ‘violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Id. (quoting Mullenix v. Luna,

136 S. Ct. 305, 308 (2015)). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks omitted). “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id. Where a complaint asserts

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claims against multiple defendants, “[i]t is particularly important that plaintiffs make

clear exactly who is alleged to have done what to whom, as distinguished from

collective allegations.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)

(ellipsis and internal quotation marks omitted).

       The district court found that the complaint contained nothing more than

conclusory allegations that Defendants Swonger, Mondragon, and Carder violated

Mr. Miles’s constitutional or statutory rights. And it further found that the collective

allegations against these Defendants failed to adequately specify which of them took

the alleged wrongful actions. Mr. Miles does not point to any allegations in his

complaint that undermine these conclusions or otherwise advance a reasoned

argument that the court erred in reaching them. We affirm the dismissal of

Defendants Swonger, Mondragon, and Carder for substantially the same reasons cited

by the district court.

B. Denial of Motions to Appoint Counsel

       “We have previously directed district courts to evaluate, in connection with a

request to appoint counsel under § 1915, the merits of a prisoner’s claims, the nature

and complexity of the factual and legal issues, and the prisoner’s ability to

investigate the facts and present his claims.” Hill v. SmithKline Beecham Corp.,

393 F.3d 1111, 1115 (10th Cir. 2004). “The burden is upon the applicant to convince

the court that there is sufficient merit to his claim to warrant the appointment of

counsel.” McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (per curiam).



                                            5
       “We review a district court’s refusal to appoint counsel for an indigent

prisoner in a civil case for an abuse of discretion.” Hill, 393 F.3d at 1115. We will

reverse the district court’s ruling “[o]nly in those extreme cases where the lack

of counsel results in fundamental unfairness.” Id. (internal quotation marks omitted).

       In denying each of Mr. Miles’s motions seeking appointment of counsel, the

district court provided a reasoned explanation. It denied his first motion after

concluding that the entire case should be dismissed due to Mr. Miles’s failure to

exhaust his administrative remedies, and principally based this ruling on its view that

Mr. Miles did not assert a colorable claim. After Mr. Miles successfully convinced

us, while appearing pro se, to reverse the district court’s first dismissal of his case,

the district court denied his second motion for appointment of counsel without

prejudice because (1) Mr. Miles did not meet his burden to convince the court that his

claims had merit; (2) the case turned on events directly involving Mr. Miles and he

did not need professional training to explain what allegedly happened to him; (3) the

court believed Mr. Miles demonstrated an ability to represent himself, including by

convincing us to reverse the district court’s first dismissal of his case; and (4) Mr.

Miles’s case was not legally or factually complex. The district court denied Mr.

Miles’s third motion because (1) he did not point to any change in circumstances that

supported his request; (2) intervening filings in the case enlightened the court as to

additional weaknesses in his case; and (3) Mr. Miles had continued to show an ability

to competently represent himself.



                                             6
      Mr. Miles does not explain how the district court abused its discretion in

denying his motions to appoint counsel. We have reviewed the district court’s stated

rationales and conclude that it did not abuse its discretion in denying any of Mr.

Miles’s motions seeking the appointment of counsel.1

C. Summary Judgment

      We review the district court’s summary judgment decision de novo, viewing

the factual record and making reasonable inferences from it in the light most

favorable to the nonmoving party. Bird v. W. Valley City, 832 F.3d 1188, 1199

(10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is

such that a reasonable jury could return a verdict for the nonmoving party, and a fact

is material when it might affect the outcome of the suit under the governing

substantive law.” Bird, 832 F.3d at 1199 (alteration and internal quotation marks

omitted). “A movant that will not bear the burden of persuasion at trial need not

negate the nonmovant’s claim. Such a movant may make its prima facie

demonstration simply by pointing out to the court a lack of evidence for the

nonmovant on an essential element of the nonmovant’s claim.” Felkins v. City of


      1
         As a corollary to his argument regarding the appointment of counsel, Mr.
Miles complains that neither the court nor anyone else contacted witnesses on his
behalf or otherwise gathered his evidence. This remonstration misses the point that
Mr. Miles has the burden to prove his case. And Mr. Miles does not point to any
error the district court made with respect to his efforts to marshal evidence
supporting his claims.
                                           7
Lakewood, 774 F.3d 647, 653 (10th Cir. 2014) (alteration and internal quotation

marks omitted).

      The district court found that while the evidence “demonstrates that [Mr. Miles]

communicated several times with prison staff that [Mr. Miles’s] cellmate was

stealing from him and that they were not getting along,” Mr. Miles “did not

communicate concern that the conditions posed a substantial risk of serious harm.”

R. Vol. II at 204. The court therefore found no fact issue that the conditions of Mr.

Miles’s incarceration presented an objective substantial risk of serious harm. It

further found no evidence that Defendant Conrad had subjective knowledge of the

risk of harm, noting as follows: “None of the turnkey reports indicate aggressive or

threatening behavior by Sallabreda [sic] towards [Mr. Miles]. None of the turnkey

reports indicate [Mr. Miles’s] concern of any violence from Sallabreda [sic]. If

anything, the last few turnkey communications indicate that [Mr. Miles] may harm

Sallabedra.” Id. at 205.

      Mr. Miles does not advance a reasoned argument that the district court

misconstrued the evidence, nor does he cite any evidence in the record that

undermines the court’s conclusion. We affirm the grant of summary judgment to

Defendant Conrad for substantially the same reasons cited by the district court.

                                  III. Conclusion

      We affirm the district court’s (1) dismissal of Defendants Swonger,

Mondragon, and Carder, (2) denial of Mr. Miles’s motions for appointment of

counsel, and (3) entry of summary judgment in favor of Defendant Conrad.

                                           8
We grant Mr. Miles’s motion to proceed without prepayment of costs and fees.


                                   Entered for the Court


                                   Jerome A. Holmes
                                   Circuit Judge




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