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

                             FOR THE TENTH CIRCUIT                         March 6, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
FREDERICK RIDEOUT GRAY, JR.,

      Plaintiff - Appellant,

v.                                                        No. 17-6135
                                                   (D.C. No. 5:17-CV-00137-F)
GEO GROUP, INC.; LAWTON                                   (W.D. Okla.)
CORRECTIONAL FACILITY; JOE M.
ALLBAUGH; MARK KNUTSON; GREG
WILLIAMS; HECTOR A. RIOS, JR.;
JOHN/JANE DOE; CHRISTINA
THOMAS; BUDDY HONAKER; DR.
FNU LANGE, Ph.D.; DR. JANNA
MERGAN, Ph.D.; FNU COLLINS; LT.
FNU MECDE; LT. FNU ENGLE; MIKE
PLUME; JAMIE RICHMAND; DR. SAM
MUSLLAM, M.D.; DR. FNU SHAH; FNU
SIMPKINS, LPN; FNU JUAREZ, C/O;
FNU TUNSTAL, C/O; FNU
WASHINGTON, C/O; FNU BLACK,
CCM IV, in their individual (personal)
and/or official capacities,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________


      *
         After examining Plaintiff-Appellant’s brief and the 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judgment is not binding precedent, except under the doctrines of law of the case, res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.
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

       Frederick Rideout Gray, Jr., a state inmate proceeding pro se and in forma

pauperis, filed suit under 42 U.S.C. § 1983 and Oklahoma law against various prison and

Oklahoma Department of Corrections (ODOC) officials in their personal and/or official

capacities. He appeals the district court’s dismissal of his action and its denial of his

motions for leave to amend his complaint and for appointment of counsel. He also

requests leave to proceed on appeal in forma pauperis. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the dismissal with prejudice of several claims and the

district court’s denial of Gray’s motions for appointment of counsel. We reverse the

judgment dismissing other claims, reverse denial of leave to amend, and remand for

further proceedings. We also grant the IFP motion.

                                     BACKGROUND

       According to his complaint, Gray is a long-time Oklahoma state inmate who

was housed in the Inmate Mental Health Unit of the Oklahoma State Penitentiary

until he was transferred in June 2016 to the Lawton Correctional Facility (LCF).

Gray alleged that after his transfer various LCF staff and ODOC officials were

deliberately indifferent to his previously diagnosed mental health and other medical

concerns, filed unjustified misconduct reports against him to cover up their wrong-

doing and in retaliation for his verbal and written grievances, failed to address his

grievances, and promulgated an unconstitutional 10:00 p.m. lights-out policy. As a

result, Gray filed a civil rights complaint under § 1983 against more than


                                              2
20 defendants alleging their actions had deprived him of rights secured by the

U.S. Constitution and other federal and state laws. As relief, he sought monetary

damages, declaratory relief, an injunction ordering his transfer to another prison where he

could receive mental health treatment, treatment of various physical injuries, and

expungement of his disciplinary convictions.

       On referral from the district court, the magistrate judge screened Gray’s

complaint pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2) and

recommended that his claims be dismissed for failure to state a claim, some with

prejudice and some without prejudice. The magistrate judge also recommended that

the district court deny Gray’s motion for appointment of counsel and decline to

exercise supplemental jurisdiction over his state law claims. Gray filed objections to

most of these recommendations, as well as a motion for leave to amend his complaint

and amended complaint and a second motion for appointment of counsel that

included a request for appointment of a guardian ad litem. The district court adopted

the magistrate judge’s recommendation in full, denied Gray’s motion for leave to

amend, struck his amended complaint, denied his second motion for appointment of

counsel or guardian ad litem, and entered judgment against him. It also denied

Gray’s subsequent motions under Rule 59(e) and Rule 60(b) in which he sought relief

from judgment in order to amend his complaint. This appeal followed.




                                            3
                                       DISCUSSION

        Gray appeals the district court’s dismissal of certain of his claims and its denial of

his motions to amend his complaint and for appointment of counsel. We address each in

turn.

        A.     Dismissal of claims1

        We review de novo a district court’s dismissal of a prisoner’s claims under

28 U.S.C. § 1915A and § 1915(e)(2) for failure to state claim. McBride v. Deer,

240 F.3d 1287, 1289 (10th Cir. 2001). In this review, we consider whether Gray’s

complaint contains sufficient facts “to state a claim to relief that is plausible on its

face,” taking all well-pleaded facts, but not conclusory allegations, as true and

construing them in the light most favorable to him. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal quotation marks omitted); see also Kay v. Bemis, 500 F.3d 1214,

1217 (10th Cir. 2007). We also consider the exhibits to Gray’s complaint in

determining whether he stated a claim, see Oxendine v. Kaplan, 241 F.3d 1272, 1275

(10th Cir. 2001), as well as factual allegations included in his objections to the

magistrate’s report and recommendation, see McBride, 240 F.3d at 1289. Although

we liberally construe Gray’s pro se complaint and other filings in our review, we do


        1
          Mr. Gray abandoned or has forfeited appellate review of two additional
claims asserted in his complaint. In his objections to the magistrate judge’s report
and recommendation, he expressly abandoned his claim that various defendants
failed to protect him from inmate assault. R. at 327. He forfeited appellate review of
the district court’s dismissal with prejudice of his claim regarding access to prison
programs by failing to address dismissal of this claim in his opening brief. See
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

                                               4
not act as his advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005). Notwithstanding his pro se status, Gray also still bears “the burden

of alleging sufficient facts on which a recognized legal claim could be based,” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and of complying with the same

rules of procedure as other litigants, Garrett, 425 F.3d at 840.

              1.     Deliberate indifference to medical needs

       “A prison official’s deliberate indifference to an inmate’s serious medical

needs is a violation of the Eighth Amendment’s prohibition against cruel and unusual

punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). Gray alleges a

number of the defendants violated his Eighth Amendment rights after his transfer to

the LCF by: (1) not properly treating his previously diagnosed mental illness; and

(2) failing to adequately address his previously injured knee and neck as well as

diabetic nerve pain in his feet and other injuries.

       The test for a deliberate indifference claim has both objective and subjective

components. Id. The objective component requires that the harm suffered as a result

of the prison’s inadequate medical care be sufficiently serious to implicate the Eighth

Amendment’s Cruel and Unusual Punishment Clause. See id. at 753. “[A] medical

need is sufficiently serious if it is one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Id. at 751 (internal quotation marks

omitted).



                                              5
       The subjective component of the deliberate indifference test requires that the

plaintiff “present evidence of the prison official’s culpable state of mind,” id., and is

met by showing that the defendant knew the plaintiff “faced a substantial risk of

harm and disregarded that risk, by failing to take reasonable measures to abate it,”

Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009) (internal quotation marks

omitted); see also Mata, 427 F.3d at 751. Allegations or evidence that the defendants

were negligent in diagnosing or treating a medical condition does not meet this

standard. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Nor does mere

disagreement with the type of medical care provided establish an Eighth Amendment

violation. See Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (prisoners

do not have Eighth Amendment “right to a particular course of treatment”).

       The district court dismissed Gray’s deliberate indifference claim without

prejudice based on his failure to allege sufficient facts to establish either component

of this claim as to any of his asserted medical needs. In particular, the court found

Gray relied primarily on conclusory legal assertions to state this claim and that he

failed to provide fair notice to defendants of who did what to whom and when as

required by Rule 8 of the Federal Rules of Civil Procedure.2 We conclude the court



       2
           Rule 8 requires that a complaint include “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), one that
is supported by more than conclusory allegations, see Iqbal, 556 U.S. at 678, and
contains sufficient information to give the defendants fair notice of his claims against
each of them, see Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011) (“[I]n a
§ 1983 action it is particularly important that the complaint make clear exactly who is
                                                                                (continued)
                                             6
erred in dismissing Gray’s deliberate indifference claim relating to his mental health

needs and his injured knee but was correct in finding that he failed to state a

deliberate indifference claim regarding his neck injury and other asserted medical

conditions.

      Mental health needs

      Reading Gray’s complaint and objections liberally, Gray alleged in his

complaint and objections to the magistrate judge’s report and recommendation that:

(1) he has been diagnosed and treated for bipolar, depressive, psychotic disorders;

(2) after his transfer to LCF he failed to receive his customary mental health

medications as a result of numerous, recurring dispensing errors by the prison

nursing staff; (3) he informed defendant Thomas (LCF health services administrator),

Shah (LCF psychiatrist), Rios (LCF warden), Black (LCF case manager coordinator),

Lange (ODOC regional mental health coordinator) and Morgan (ODOC chief mental

health officer), of these failings and warned defendants Thomas, Shah, Black, Rios,

and Lange that he needed to receive these medications in the proper doses to remain

stable and not become a management problem; (4) these officials did not take action

to correct the persistent medication errors; and, (5) as a result, Gray became mentally

unstable, acted out, and was disciplined by placement in a segregated housing unit.

He further alleged that as his mental health deteriorated, he asked defendants Lange,

Morgan, Rios, and Thomas to transfer him to a facility that had a mental health

alleged to have done what to whom, to provide each individual with fair notice as to the
basis of the claims against him or her.” (internal quotation marks omitted)).

                                            7
treatment program that could better treat his mental health concerns, but that they

failed to act. In addition, he alleged that defendants Rios, Shah, Thomas and Lange

were deliberately indifferent to his mental health needs as a result of their failure to

properly hire, train and manage nurses who were capable of properly dispensing

medication. Based on these facts, in his objections Gray identified defendants

Thomas, Lange, Morgan, Rios, Black, and Shah as the defendants subject to this

deliberate indifference claim.3

       Gray’s allegation that he was diagnosed and treated for the cited mental health

disorders is sufficient to establish the objective component of his deliberate

indifference claim regarding his mental health needs. See Mata, 427 F.3d at 751

(“[A] medical need is sufficiently serious if it is one that has been diagnosed by a

physician as mandating treatment . . . .” (internal quotation marks omitted)). His

allegations that he notified the named defendants of the persistent medication errors and

their potential consequences and of his deteriorating mental health and that they did not

take action to abate these conditions satisfies the subjective component of this deliberate

indifference claim against these defendants. See Martinez, 563 F.3d at 1089 (holding

subjective component met by showing that defendants knew the plaintiff “faced a


       3
         In his complaint, Mr. Gray identified a larger set of defendants as being
aware of these medication errors but deliberately indifferent to them. See id. at 70
(¶ 36) (in addition to the six defendants named in his objections, identifying
defendants Honaker, Collins, Allbaugh, Williams, “Lt. Engle” and “RN Richmond”).
We agree with the district court that Mr. Gray’s allegations regarding the additional
defendants in this list are conclusory and hence are not sufficient to state a claim
against them.

                                             8
substantial risk of harm and disregarded that risk, by failing to take reasonable

measures to abate it”) (internal quotation marks omitted). Further, these allegations

meet the notice requirements imposed by Rule 8 because they inform each defendant

what they allegedly did to violate federal law with enough specificity to enable each

defendant to respond. See Barfield v. Commerce Bank, N.A., 484 F.3d 1276, 1281

(10th Cir. 2007). We therefore reverse the district court’s dismissal of Gray’s mental

health deliberate indifference claim against these six defendants for failure to state a

claim.4

       Injured knee

       In his complaint and objections, Gray satisfied the objective component for his

deliberate indifference claim regarding his injured knee by alleging that the injury was

sufficiently serious and painful that it was treated by the LCF medical staff. See

R. at 323 (reporting LCF medical staff attempted to relieve knee pain by a cortisone

injection and medication); see also R. at 230 (referencing treatment at previous facility).

He also alleged that he continued to suffer significant chronic pain despite the cortisone

injection and pain medication he received, but that additional treatment and potential

surgery were delayed because an MRI ordered by Dr. Musllam, LCF’s resident

physician, in October 2016 to assess the injury had not taken place as of the date of his


       4
         In so holding, we do not address whether factual material included in the
182-pages of exhibits Mr. Gray attached to his complaint, which consists primarily of
requests for health service, requests to staff and grievances, are consistent with the
allegations in Mr. Gray’s complaint and his objections to the magistrate judge’s
report and recommendation.

                                              9
complaint and his May 2017 objections. A delay in treatment that results in substantial

harm constitutes an Eighth Amendment violation, and the substantial harm requirement is

satisfied by evidence of “considerable pain.” Mata, 427 F.3d at 751 (internal quotation

marks omitted).

       Gray also alleged that Dr. Musllam told him in response to his request for

additional pain relief that he did “not meet the requirements for anything stronger” and

needed “to toughen up.” R. at 323. Read liberally, these allegations assert Dr. Musllam

was aware of Gray’s knee injury and the chronic pain it caused him but did not take

reasonable steps to abate it. Gray therefore sufficiently pled that Dr. Musllam had the

culpable state of mind required to state a deliberate indifference claim against him.5 See

Martinez, 563 F.3d at 1089.

       It appears Gray also alleges other defendants were deliberately indifferent to

his knee injury, see R. at 323 (referring to “defendants” who knew of but did not do

anything regarding his serious knee pain), but he does not identify these defendants

or facts notifying them of what they allegedly did, or did not do, with respect to this

injury. Accordingly, Gray failed to state a claim or satisfy Rule 8’s notice

requirements regarding his knee-related deliberate indifference claim with respect to

any defendant other than Dr. Musllam.

       5
         Of course, if the evidence shows that Dr. Musllam’s failure to treat
Mr. Gray’s knee pain reflected his professional judgement or even was negligent,
rather than deliberately indifferent, then the subjective component of this claim
would not be met. See Estelle, 429 U.S. at 106; Callahan, 471 F.3d at 1160. This is
not the question before us, however, as we are only concerned at this time with
whether Mr. Gray has pled sufficient facts to state a plausible claim.

                                            10
              2.     Retaliatory misconduct charges

       In his complaint Gray alleged defendants Engle, Tunstal, Juarez, Simpkins and

Washington each wrote “bogus” misconduct charges against him in order to cover up

their failure to provide him with his prescribed mental health medications and/or in

retaliation for the grievances he pursued or threatened to pursue. The magistrate judge

construed these allegations as an attempt to assert a claim that each of these defendants

violated Gray’s First Amendment rights by retaliating against him for exercising his

constitutional right to file administrative grievances, see Gee v. Pacheco, 627 F.3d 1178,

1189 (10th Cir. 2010) (inmate’s right to file grievances and petition the court are

constitutionally protected activities); Williams v. Meese, 926 F.2d 994, 998 (10th Cir.

1991) (same), and Gray has not objected to this characterization. In order to state a First

Amendment retaliation claim against each defendant, Gray had to allege: (1) he engaged

in constitutionally protected activity; (2) the defendant’s actions caused him to suffer an

injury that would chill a person of ordinary firmness from continuing to engage in that

activity; and (3) the defendant’s adverse action was substantially motivated as a response

to his constitutionally protected activity. Mocek v. City of Albuquerque, 813 F.3d 912,

930 (10th Cir. 2015).

       The district court dismissed Gray’s retaliation claim against defendant Juarez for

failure to state a claim without prejudice, for the reasons discussed below. It dismissed

his retaliation claims against defendants Engle, Tunstal, Simpkins and Washington with

prejudice on the ground that Gray alleged only that they filed bogus charges against him,

rather than alleging that they acted in retaliation for him filing grievances or otherwise

                                             11
engaging in constitutionally protected activity. “But dismissal of a pro se complaint for

failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail

on the facts he has alleged and it would be futile to give him an opportunity to amend.”

Gee, 627 F.3d at 1195 (internal quotation marks omitted). It is not clear to us at this

juncture that this is so. In fact, in his objections to the magistrate judge’s report, Gray

affirmatively alleged that each of these defendants “contrived their bogus misconduct

offences due to [his] proactiveness in the grievance process and . . . to impede his efforts

to seek redress in the courts.” R. at 327. These allegations, accepted as true and read in

the light most favorable to Gray for purposes of assessing whether he has stated a claim,

see McBride, 240 F.3d at 1289, undermine the district court’s stated rationale for

dismissing the First Amendment retaliation claim against these defendants with

prejudice.

       That is not to say that Gray has successfully stated a retaliation claim against these

four defendants. His allegation of retaliatory motive against these defendants is both

vague and conclusory. His allegations also fail to explain why each of the misconduct

charges he identifies would chill a person of ordinary firmness from continuing to engage

in the protected activity, or that each defendant would not have brought the misconduct

charges but for Gray’s grievances, see Peterson v. Shanks, 149 F.3d 1140, 1144

(10th Cir. 1998) (“An inmate claiming retaliation must allege specific facts showing

retaliation because of the exercise of the prisoner’s constitutional rights.” (internal

quotation marks omitted)). It was these same defects that prompted the district court to

dismiss Gray’s final retaliation claim, against defendant Juarez, without prejudice even

                                              12
though Gray had alleged defendant Juarez acted with a retaliatory motive. We therefore

agree with the district court that Gray has thus far failed to state a claim for First

Amendment retaliation claim against any of these five defendants. The dismissal as to all

five defendants should have been without prejudice, however, for the reasons stated

above.6

              3.      Additional claims on appeal

       Gray also appeals the district court’s dismissal of certain of his other claims. After

careful consideration of Gray’s brief, the record on appeal and relevant authority, we find

no error in dismissal of these claims.

       The district court properly dismissed without prejudice Gray’s official-capacity

claims for damages against the ODOC defendants because such claims are construed as

claims against the state and are thus barred by Eleventh Amendment sovereign immunity.

See, e.g., Colby v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017) (holding federal courts

lack jurisdiction to consider official-capacity damage claims because of Eleventh

Amendment immunity).

       The district court also properly dismissed with prejudice Gray’s Eighth

Amendment challenge to LCF’s 10:00 p.m. lights-out policy. As Gray notes, some

       6
         Mr. Gray also challenges the magistrate judge’s statement that part of the
relief sought on this claim, expungement of the allegedly retaliatory misconduct
convictions, could be obtained only through a separate petition for writ of habeas
corpus under 28 U.S.C. § 2241. See R. at 303 n.5. The magistrate judge
acknowledged later in his discussion of this issue, however, that he lacked sufficient
knowledge about these misconduct convictions to know if this result was required
under Edwards v. Balisok, 520 U.S. 641, 643-48 (1997) and Heck v. Humphrey,
512 U.S. 477 (1994). See R. at 303 n.5.

                                              13
courts have held that a prison’s failure to provide adequate lighting for reading and other

purposes may violate the Eighth Amendment’s requirement that adequate shelter be

provided. See Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th Cir. 1996); Hoptowit v.

Spellman, 753 F.2d 779, 783 (9th Cir. 1985). Gray does not allege that he lacks

sufficient light to read and write, however, only that he would prefer to have light

available for these purposes after 10:00 p.m., when the prison is quieter. The prison’s

failure to accommodate this preference is not objectively serious enough to violate the

Eighth Amendment’s prohibition of cruel and unusual punishment.

       Finally, there is no independent constitutional right to state administrative

grievance procedures. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Flick v. Alba,

932 F.2d 728, 729 (8th Cir. 1991) (per curiam). “When the claim underlying the

administrative grievance involves a constitutional right, the prisoner’s right to petition the

government for redress is the right of access to the courts, which is not compromised by

the prison’s refusal to entertain his grievance.” Flick, 932 F.2d at 729. Accordingly, the

district court properly dismissed Gray’s due process, First Amendment, and equal

protection claims relating to various defendants’ failure to answer his grievances.7

       B.     Denial of leave to amend complaint

       The district court denied Gray’s motion for leave to amend his complaint, filed

contemporaneously with his objections to the magistrate judge’s report and

       7
         Some of Mr. Gray’s grievance-related allegations and argument appear to be
intended to demonstrate that he exhausted his administrative remedies regarding various
claims. Neither the magistrate judge nor the district court addressed this issue in the
proceedings below, and hence it is not before us on appeal.

                                             14
recommendation, and also his subsequent motions under Rules 59(e) and 60 seeking

relief from the judgment dismissing this action to allow him to amend his complaint.

       We review a district court’s refusal to permit an amendment for abuse of

discretion. Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007).

Under this standard, we will disturb the district court’s decision only if we have

“a definite and firm conviction that the lower court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.” Nieto v. Kapoor,

268 F.3d 1208, 1221 (10th Cir. 2001) (internal quotation marks omitted). Because

Fed. R. Civ. P. 15(a) provides that leave should be freely granted “when justice so

requires,” denial of leave is generally justified only for “undue delay, undue

prejudice to the opposing party, bad faith or dilatory motive, failure to cure

deficiencies by amendments previously allowed, or futility of amendment.” Frank v.

U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). In addition, as a general rule,

“[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is

obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile

to give him an opportunity to amend.” Kay, 500 F.3d at 1217 (internal quotation marks

omitted).

       In his proposed amended complaint, Gray re-alleged his deliberate indifference

claims, his First Amendment retaliation claims against defendants Juarez, Engle, Tunstal,

Simpkins, and Washington, and new retaliation claims and an assault and battery claim

against additional defendants who were not included in his original complaint. The

district court denied Gray’s requests for leave to amend his complaint and struck his

                                             15
proffered amended complaint on two grounds, the first of which was that Gray sought to

re-allege certain claims the district court had dismissed with prejudice earlier in its order.

Of the claims included in the amended complaint, however, only the First Amendment

retaliation claims against defendants Engle, Tunstal, Simpkins, and Washington had been

dismissed with prejudice, and we concluded for the reasons stated earlier that this

dismissal should instead have been without prejudice.

       The district court also denied leave to amend on the ground that Gray’s amended

complaint failed to provide a short, plain statement of his claims as required by Rule 8.

Gray’s amended complaint, however, included considerable additional factual

allegations. These included allegations reported in his objections to the magistrate

judge’s recommendation that we concluded above help satisfy Rule 8’s requirements

with respect to his deliberate indifference claim against certain defendants. Gray

therefore complied with Rule 8’s pleading requirements with respect to the deliberate

indifference claim against these defendants.

       While the remainder of the re-alleged and new claims in the amended complaint

may still have been deficient under Rule 8, it is notable that the district court did not

consider whether these defects could be cured by amendment or rule that amendment of

these claims was futile. As indicated earlier, as a general rule, a pro se plaintiff should be

given an opportunity to amend his complaint unless the district court finds amendment

would be futile or that one of the other recognized justifications for denying leave to

amend applies. See Kay, 500 F.3d at 1217; Frank, 3 F.3d at 1365. In light of this

authority and our finding that at least part of the amended complaint satisfied Rule 8 and

                                              16
stated a deliberate indifference claim, we find the district court “exceeded the bounds

of permissible choice in the circumstances,” Nieto, 268 F.3d at 1221 (internal

quotation marks omitted), when it denied Gray leave to amend. We therefore reverse

and remand the district court’s denial of Gray’s requests for leave to amend.

       C.     Denial of motions to appoint counsel8

       We review the district court’s denial of Gray’s motions for appointment of counsel

for abuse of discretion. Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). While

courts are not authorized to appoint counsel in a pro se § 1983 case, they may request that

an attorney take the case.9 Id. at 396 (citing 28 U.S.C. § 1915(e)(1)). In considering

whether to make such a request, the court should consider: (1) the merits of the claims;

(2) the nature of the factual issues raised in the claims; (3) the litigant’s ability to present

the claims; and (4) the complexity of the legal issues raised. Rucks v. Boergermann,

57 F.3d 978, 979 (10th Cir. 1995). The district court considered each of these factors in

denying Gray’s motion. Having considered Gray’s arguments on appeal, we conclude

that the district court did not make a clear error of judgment or exceed the bounds of

permissible choice in the circumstances. Accordingly, the district court did not abuse its



       8
          Although Mr. Gray referenced his request for appointment of a guardian ad
litem in the heading for his argument on these motions, he forfeited appellate review
of the district court’s denial of this request by failing to include argument concerning
it in his opening brief. See Bronson, 500 F.3d at 1104.
       9
        Attorneys may decline these requests, and sometimes do because the court
may be unable to pay them for their time or reimburse them for out-of-pocket
expenses. See Rachel, 820 F.3d at 397 n.7.

                                               17
discretion in denying Gray’s motions for appointment of counsel. See Nieto, 268 F.3d

at 1221.

                                     CONCLUSION

       We affirm the district court’s dismissal with prejudice of Gray’s official-capacity

damage claims, his Eighth Amendment claim regarding LCF’s 10:00 p.m. lights out

policy and his due process, First Amendment and equal protection claims against various

defendants for failing to answer his grievances. We also affirm denial of Gray’s motions

for appointment of counsel. We reverse the district court’s judgment dismissing Gray’s

deliberate indifference claim against defendants Thomas, Lange, Morgan, Rios, Black,

Shah, and Musllam and dismissing his retaliation claims with prejudice against

defendants Engle, Tunstal, Simpkins, and Washington. We also reverse the denial of

Gray’s requests for leave to amend and remand the case for further proceedings

consistent with this decision. In addition, we grant Gray’s motion to proceed in forma

pauperis and remind him that he must continue making partial payments until the entire

fee has been paid in full.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




                                            18
