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

                        FOR THE TENTH CIRCUIT              May 21, 2013

                                                       Elisabeth A. Shumaker
                                                           Clerk of Court
CHRISTOPHER WAYNE WEBB,

          Plaintiff-Appellant,

v.                                              No. 12-6250
                                        (D.C. No. 5:11-CV-01477-M)
JUSTIN JONES, Director DOC;                    (W.D. Okla.)
AMANDA WEAVER, Case Mgr;
MR. JONES, Unit Mgr,

          Defendants-Appellees.


CHRISTOPHER W. WEBB,

          Plaintiff-Appellant,

v.                                               No. 12-7070
                                     (D.C. No. 6:10-CV-00438-JHP-SPS)
BILL STURCH; MONTY                               (E.D. Okla.)
MONTGOMERY,

          Defendants-Appellees.


CHRISTOPHER W. WEBB,

          Plaintiff-Appellant,

v.                                               No. 12-7071
                                     (D.C. No. 6:12-CV-00058-JHP-SPS)
MIKE OSBORNE; MR. HAMILTON,                      (E.D. Okla.)

          Defendants-Appellees.
                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.


      These three appeals are brought by pro se Oklahoma prisoner Christopher W.

Webb. We have jurisdiction under 28 U.S.C. § 1291 and dismiss these appeals as

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

                                     No. 12-6250

      Mr. Webb sued for damages and injunctive relief under 42 U.S.C. § 1983,

naming as defendants, in their official and individual capacities: (1) Justin Jones, the

Director of the Oklahoma Department of Corrections; (2) Amanda Weaver, a case

manager at the Lexington Assessment and Reception Center (the Center); and

(3) Mr. Jones, the unit manager of the Center.

      The Center is a facility that temporarily houses prisoners who have been

convicted and sentenced for a crime prior to their assignment to a permanent facility.

According to Mr. Webb’s amended complaint, the alleged constitutional violations

occurred during the assessment and review process at the Center. In particular, he
*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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.


                                          -2-
claimed that the defendants: (1) jeopardized his life and safety by releasing

information about the nature of his crimes; (2) erroneously considered certain prior

convictions in assigning his custody level; and (3) enacted and enforced policies that

afford more good time credits to defendants who plead guilty. As to the claim for

injunctive relief, Mr. Webb asked that the defendants be prevented in the future from

releasing any information about the nature of his crimes.

       The magistrate judge concluded that the damage claims against the defendants

in their official capacities should be dismissed on the grounds of Eleventh

Amendment immunity. As to the request for injunctive relief and damages on the

individual capacity claims, the magistrate judge concluded that the defendants were

entitled to summary judgment because Mr. Webb failed to exhaust his administrative

remedies. The district court overruled Mr. Webb’s objections, adopted the magistrate

judge’s report and recommendation, and entered judgment in favor of the defendants.

This appeal followed.

       “[T]he Eleventh Amendment precludes a federal court from assessing damages

against state officials sued in their official capacities because such suits are in

essence suits against the state.” Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir.

1994). “We review de novo a district court’s consideration of subject-matter

jurisdiction in the context of a Fed. R. Civ. P. 12(b)(1) motion to dismiss based on

Eleventh Amendment immunity.” Elephant Butte Irrigation Dist. of N.M. v. Dep’t of

Interior, 160 F.3d 602, 607 (10th Cir. 1998).


                                           -3-
       Mr. Webb appears to acknowledge this rule, but argues in a conclusory fashion

that the defendants are not entitled to Eleventh Amendment immunity because their

actions were “malicious,” Aplt. Opening Br. at 2, and the “totality of the

circumstances” favor the waiver of sovereign immunity, id. at 3. This is insufficient

appellate argument. See Fed. R. App. P. 28(a)(9)(A) (requiring, among other things,

that an opening brief contain an argument with citations to the law). That Mr. Webb

is pro se does not excuse him from compliance with this rule. “[P]ro se parties [are

required to] follow the same rules of procedure that govern other litigants.” Garrett

v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal

quotation marks omitted). “[A]lthough we make some allowances for the pro se

plaintiff’s failure to cite proper legal authority, his confusion of various legal

theories, his poor syntax and sentence construction, or his unfamiliarity with pleading

requirements, the court cannot take on the responsibility of serving as the litigant’s

attorney in constructing arguments and searching the record.” Id. (brackets, citation,

and internal quotation marks omitted). Even when viewed through the forgiving lens

that this court applies to pro se litigants, Mr. Webb’s “briefs do not come close to

complying with Federal Rule of Appellate Procedure 28,” id., because they contain

nothing more than declarations of error without reference to any legal authorities.

       As for the claims against defendants in their individual capacities, exhaustion

of administrative remedies is mandatory under the Prison Litigation Reform Act,

42 U.S.C. § 1997e(a) (PLRA) and “unexhausted claims cannot be brought in court.”


                                           -4-
Thomas v. Parker, 609 F.3d 1114, 1117 (10th Cir. 2010) (internal quotation marks

omitted). “Because the prison’s procedural requirements define the steps necessary

for exhaustion, an inmate may only exhaust by properly following all of the steps laid

out in the prison system’s grievance procedure.” Little v. Jones, 607 F.3d 1245, 1249

(10th Cir. 2010) (citation omitted).

      “A party may move for summary judgment, identifying each . . . defense . . .

on which summary judgment is sought. The court shall grant summary judgment 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). “[T]he

burden of proof for the exhaustion of administrative remedies in a suit governed by

the PLRA lies with the defendant.” Roberts v. Barreras, 484 F.3d 1236, 1241

(10th Cir. 2007). “We review a district court’s grant of summary judgment de novo,

using the same standards applied by the district court.” Id. at 1239; see also Little,

607 F.3d at 1249 (“We review de novo the district court’s finding of failure to

exhaust administrative remedies.” (internal quotation marks omitted)).

      In their motion for summary judgment the defendants provided a copy of the

grievance procedures and offered affidavits that Mr. Webb did not file any grievances

while he was housed at the Center. In response to the motion, Mr. Webb alleged that

his was an emergency grievance and that he did in fact follow the procedures for such

matters: “This particular 8th Amend. violation was an emergency as to exhaustion

requirement(s), although – plaintiff did exhaust administrative remedie(s).” R. Vol. 1


                                          -5-
at 80. He stated that he complied with the procedures by bringing his complaints to

the attention of Ms. Weaver and Mr. Jones, and further argued that the lack of

records “proved nothing.” Id. at 82. Mr. Webb repeats these arguments on appeal.

       We agree with the magistrate judge that Mr. Webb did not comply with the

requirements for filing an emergency grievance. The grievance policy requires that

emergency grievances be to the “reviewing authority,” id. at 73, which in turn is

defined as “[t]he facility head or facility correctional health services administrator,”

id. at 62. Neither Ms. Weaver nor Mr. Jones meets this definition. As such, the

defendants were entitled to summary judgment on their defense that Mr. Webb failed

to exhaust his administrative remedies.

                                      No. 12-7070

       This suit was filed against Bryan County Sheriff Bill Sturch and Bryan County

Commissioner Monty Montgomery under § 1983 for the alleged prolonged exposure

to toxic black mold while Mr. Webb was incarcerated at the Bryan County Jail. The

district court entered several orders during the course of the litigation, including an

order denying Mr. Webb’s motion for a default judgment and an order granting

Mr. Montgomery’s motion to dismiss and denying Mr. Webb’s motion to certify the

suit as a class action.

       Eventually, on October 5, 2012, the court entered an order in which it found

that Mr. Webb failed to exhaust his administrative remedies and “[a]ssuming

arguendo that [Mr. Webb] had complied with the grievance process, [he] has failed to


                                          -6-
establish that there is any genuine dispute as to any material fact.” R. Vol. 1 at 164.

In particular, the court cited the lack of any “evidence to establish that [Mr. Webb]

has [] suffered any health consequences as a result of the conclusory allegations

which he made regarding the presence of mold,” id. at 163, and that Sheriff Sturch’s

supplemental evidence demonstrated that “Oklahoma State Jail Inspectors have

inspected the Bryan County Jail on two separate occasions during the time period in

which [Mr. Webb] alleged the presence of mold,” id. at 163-64, and never issued a

citation. Additionally, the court found that the suit was frivolous under 28 U.S.C.

§ 1915(g), and counted the dismissal as a strike under the PLRA. Mr. Webb now

appeals.

      Mr. Webb has failed to develop any issue for appellate review. His brief sets

forth general declarations of error that are unsupported by any citations to legal

authority. This is inadequate appellate argument. See Fed. R. App. P. 28(a)(9)(A)

(requiring, among other things, that an opening brief contain an argument with

citations to the law and record); see also Garrett, 425 F.3d at 840 (“[T]he court

cannot take on the responsibility of serving as the [pro se] litigant’s attorney in

constructing arguments and searching the record.”). This failure alone is sufficient to

deny appellate review. Nonetheless, we have examined the record and considered the

applicable law, and discern no error in the district court’s orders.




                                          -7-
                                     No. 12-7071

      The final § 1983 suit filed by Mr. Webb involved allegations against Mike

Osborne, an assistant administrator at the Bryan County Jail, and corrections officer

Mr. Hamilton, who also works at the jail. According to the complaint, these

defendants violated his constitutional rights on two separate occasions. First,

Mr. Webb alleged that Mr. Osborne placed his “life/safety in jeopardy through

unconstitutional prison condition(s) and further inciting inmate(s) against [him] by –

exposing his . . . past problem(s).” R. Vol. 1 at 5. More specifically, he claimed that

Mr. Osborne refused to discuss in private why he was being housed with more

dangerous inmates. Second, he claimed that Mr. Hamilton “maliciously & with

wanton negligence plac[ed] [his] life/safety in jeopardy with (a) deliberate

indifference,” id. at 6, when he failed to take reasonable precautions to prevent

Mr. Webb from being assaulted by other inmates while he was out of his cell for a

shower.

      The district court found that Mr. Webb failed to present any evidence that

either Messrs. Osborne or Hamilton personally participated in the alleged violation of

his constitutional rights or that Mr. Webb exhausted his administrative remedies.

Moreover, assuming that Mr. Webb had complied with the Bryan County Jail’s

grievance process, the court found that he failed to establish any genuine dispute as

to any material fact. Additionally, the court found that the suit was frivolous under




                                         -8-
28 U.S.C. § 1915(g), and counted the dismissal as a strike under the PLRA. This

appeal followed.

      Mr. Webb’s appellate brief is deficient in several regards. First, it makes

general declarations of error that are unsupported by any citations to legal authority.

See Fed. R. App. P. 28(a)(9)(A) (requiring, among other things, that an opening brief

contain an argument with citations to the law). Second, the brief contains

Mr. Webb’s recitation of the facts concerning his contact with Mr. Osborne and the

details of the fight between himself and some other inmates, but he does not cite to

the record. See id. (requiring that an opening brief contain references to the record).

These deficiencies alone would be sufficient to deny appellate review. See Garrett,

425 F.3d at 840 (“[T]he court cannot take on the responsibility of serving as the

[pro se] litigant’s attorney in constructing arguments and searching the record.”).

Once again, however, we have examined the record and considered the applicable

law, and discern no error in the district court’s order.

      These appeals are dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

An appeal is frivolous if it “lacks an arguable basis in either law or fact.” Thompson

v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002). We also impose three strikes, one

for each appeal, under 28 U.S.C. § 1915(g). See Jennings v. Natrona Cnty. Det. Ctr.

Med. Facility, 175 F.3d 775, 781 (10th Cir. 1999) (“If we dismiss as frivolous a

prisoner’s appeal of an action for which the district court entered judgment for

defendant, the dismissal of the appeal counts as one strike.”); see also Hafed v. Fed.


                                           -9-
Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011) (“[A] strike counts against a

prisoner from the date of the Supreme Court’s denial or dismissal of a petition for

writ of certiorari, if the prisoner filed one, or from the date when the time to file a

petition for a writ of certiorari expired, if he did not.”).

       Mr. Webb’s motion to proceed in forma pauperis on appeal in No. 12-6250 is

denied and he is ordered to immediately pay his appellate docketing and filing fees in

full. Mr. Webb’s “Motion/to/seek-leave/proceed forward, and file the - - Amended

Information – (TRO-Request)” in No. 12-6250 is denied.


                                                    Entered for the Court


                                                    Monroe G. McKay
                                                    Circuit Judge




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