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

                            FOR THE TENTH CIRCUIT                         March 11, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
JUSTIN JAMES HINZO,

             Plaintiff - Appellant,
                                                           No. 13-2060
v.                                               (D.C. No. 1:10-CV-00506-JB-CG)
                                                             (D. N.M.)
NEW MEXICO CORRECTIONS
DEPARTMENT; JOE WILLIAMS;
GEORGE TAPIA; WEXFORD HEALTH
SOURCES, INC.; CORRECTIONAL
MEDICAL SERVICES, INC.; DR. FNU
ARNOLD; DR. WILLIAM MIZELL;
DR. TONY LNU; DR. DEBRA CLYDE;
DR. JOHN STOVER; DR. JOHN DOE
(L.C.C.F.); DR. JOHN DOE
(C.N.M.C.F.); DR. JOHN DOE
(W.N.M.C.F.); DAVID GONZALES,
Correctional Officer; WAYNE
GALLEGOS; LIANE LOPEZ, R.N.;
JERRY ROARK (Deputy Warden);
LAWRENCE JARAMILLO, Warden
P.N.M.; G.E.O.,

             Defendants - Appellees.


                             ORDER AND JUDGMENT*
*
      After examining the briefs and appellate record, this Court 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 appeal is therefore
ordered submitted without oral argument.
      This order and judgment does not constitute 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.
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.


      Mr. Justin James Hinzo, a state prisoner, sued the New Mexico Corrections

Department, Wexford Health Sources, Inc., Correctional Medical Services, Inc.,

G.E.O., and fifteen individuals. Invoking 42 U.S.C. § 1983 and state law, Mr. Hinzo

alleges violations of the Eighth Amendment and negligence. The district court

entered judgment for the defendants on the federal claims and declined to exercise

supplemental jurisdiction over the state-law claims. Mr. Hinzo appeals and moves

for leave to proceed in forma pauperis. We affirm the district court’s judgment, but

grant Mr. Hinzo’s motion to proceed in forma pauperis.

                                    Background

      In 2004, while incarcerated, Mr. Hinzo slipped and hurt his back while

climbing off his top bunk bed. In 2009, less than two days after undergoing back

surgery, he sustained a second back injury while riding in a van driven by

Corrections Officer David Gonzales. Later, Mr. Hinzo fell on icy prison steps, which

aggravated his back problems. He ultimately sued, filing a third amended complaint

in which he complained about unsafe conditions and inadequate medical care.

      On screening, the district court dismissed the Eighth Amendment claims

against the state corrections department and five of its employees. The court also

expressed concern that some of Mr. Hinzo’s claims might be barred by a three-year

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statute of limitations. With this concern, the court ordered Mr. Hinzo to submit

evidence to justify tolling on the claims arising before December 31, 2006.

      The New Mexico Corrections Department, Wexford, and Correctional Medical

Services submitted investigative reports, but then asked the court to consider them as

summary judgment motions. The district court granted the motions on the Eighth

Amendment claims involving: (1) G.E.O.’s breach of a duty to provide a safe

environment by operating a facility that lacked ladders to top bunk beds, (2) failure to

provide adequate medical care, and (3) deliberate indifference to health and safety

when Correctional Medical Services and Officer Gonzales discharged Mr. Hinzo

from the hospital earlier than recommended and transported him in an unsafe manner.

      In addition, the district court: (1) dismissed the claims against Officer

Gonzales for failure to exhaust administrative remedies, (2) dismissed with prejudice

the G.E.O. claim on the ground that it was untimely, (3) dismissed without prejudice

all state-law claims, and (4) denied as moot Mr. Hinzo’s motion for summary

judgment.

      Mr. Hinzo appealed. Because Mr. Hinzo proceeds pro se, we construe his

arguments liberally but do not assume the role of his advocate. See United States v.

Viera, 674 F.3d 1214, 1216 n.1 (10th Cir. 2012).

                  Denial of Motions for Appointment of Counsel

      Throughout his appellate brief, Mr. Hinzo contends that the district court

should have appointed him counsel. He asserts that the denial of counsel “severely


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prejudiced” him because he needed an attorney to obtain expert testimony or other

evidence. Aplt. Opening Br. at 3. He also claims that not having counsel

“prejudiced” him because counsel would “have [had] access to caselaw, statutes etc.”

Id. at 6.1

       We are unpersuaded. The district court evaluated the relevant factors and

determined that Mr. Hinzo did not meet his burden. See Hill v. SmithKline Beecham

Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). In this evaluation, the court found that

Mr. Hinzo’s filings demonstrated his ability to provide supporting facts and that he

was able to express familiarity with legal concepts like statutes of limitations,

motions to amend, exhaustion of administrative remedies, and injunctive relief.

Therefore, we conclude that the district court did not abuse its discretion in denying

Mr. Hinzo’s motions for appointment of counsel. See id. (stating that the district

court’s refusal to appoint counsel for an indigent inmate in a civil case is reviewed

for an abuse of discretion).

                   Mr. Hinzo’s Remaining Arguments on Appeal

       Mr. Hinzo also challenges the district court’s: (1) dismissal of his claims

against the state department of corrections and five of its employees, (2) denial of
1
        He also argues that the prison library is inadequate, but made that argument for
the first time in his objections to the magistrate judge’s report. Thus, the district
judge properly deemed this argument waived. Hinzo v. N.M. Dep’t of Corrs.,
No. CIV 10-0506 JB/CG, 2013 WL 1657915 at *2, *10 (D.N.M. Mar. 29, 2013);
see United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“[T]heories
raised for the first time in objections to the magistrate judge’s report are deemed
waived.”).


                                          -4-
relief involving the 2004 back injury (which presumably constitutes a challenge to

the district court’s dismissal of his claim against G.E.O.), and (3) award of summary

judgment to Officer Gonzales, Correctional Medical Services, and its employees.

       We engage in de novo review of most of the challenged rulings. See McBride

v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001) (§ 1915A dismissal and summary

judgment); Sterlin v. Biomune Sys., 154 F.3d 1191, 1194 (10th Cir. 1998) (timeliness

determination); Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (failure to

exhaust administrative remedies). But we review the district court’s refusal to apply

equitable tolling for an abuse of discretion. Garrett v. Fleming, 362 F.3d 692, 695

(10th Cir. 2004). On this issue, however, Mr. Hinzo bears the burden of proof.

See Roberts v. Barreras, 484 F.3d 1236, 1241-42 (10th Cir. 2007).

       We affirm the dismissals and summary-judgment rulings for substantially the

same reasons stated by the magistrate judge and the district judge.

               Application for Leave to Proceed In Forma Pauperis

       We grant Mr. Hinzo’s motion for leave to proceed in forma pauperis.

Mr. Hinzo remains obligated to make partial payments on his filing fee until it is paid

in full.




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                                    Conclusion

      We affirm the district court’s rulings,2 but grant Mr. Hinzo’s motion for leave

to proceed in forma pauperis.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




2
       The dismissal of an unexhausted claim is ordinarily without prejudice, rather
than with prejudice. See Kikumura v. Osagie, 461 F.3d 1269, 1290 (10th Cir. 2006),
overruled in part on other grounds as recognized in Robbins v. Oklahoma, 519 F.3d
1242 (10th Cir. 2008). Here, however, Mr. Hinzo’s unexhausted federal claim
against Officer Gonzales is procedurally defaulted because the deadline expired for
an informal grievance. See Supp. R., Vol. 3 at 106 (New Mexico Corrections
Department grievance policies and procedures) (stating that an informal complaint
must be filed “within five calendar days from the date” of the alleged wrongdoing).
Thus, on the claim against Officer Gonzales, the dismissal with prejudice was proper.
See Kikumura, 461 F.3d at 1289 (observing that “procedurally defaulted” claims
“may be dismissed . . . . with prejudice”).

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