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

                                  TENTH CIRCUIT                               March 23, 2011

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
EDWARD ALLEN, a/k/a Edward Clutts

      Plaintiff - Appellant,
                                                            No. 10-1162
v.                                            (D.C. No. 1:07-CV-00137-ZLW-BNB)
                                                             (D. Colo.)
FRED FIGUERA; CORRECTIONS
CORPORATION OF AMERICA; DAVID
NELLIS; LT. WILLIAMS

      Defendants - Appellees.




                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.




      *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.

        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       Edward Allen, a Colorado prisoner proceeding pro se,1 appeals the district court

decision granting summary judgment to the defendants in his 42 U.S.C. § 1983 civil

rights action against the warden and two correctional officers of the North Fork

Correction Facility in Oklahoma. We affirm.

                                    BACKGROUND

       Allen alleged in his complaint and supporting documents that the defendants

violated his rights under the Eighth Amendment by failing to take appropriate measures

to protect him from attacks by other inmates, by placing him at the same facility as his

wife’s ex-husband, by informing other inmates of his status as a protective custody sex

offender, and by placing him in the same cell with inmates who posed a risk of harm to

him due to his status. According to Allen, after informing Warden Figueroa he feared he

would be harmed by his wife’s ex-husband who was incarcerated in the same facility,

Allen was placed in the segregation unit for his safety. Once in segregation, (where he

wanted to be), Allen claims Officer David Nellis told his cellmate that Allen was a

protective custody sex offender to encourage the cellmate to harm him.2 As a result, the

cellmate would not allow Allen back into the cell after his shower. When Allen learned

he would be moved, he suffered an anxiety attack and was seen for a short period in the

medical unit. Later, Captain Jerramy Williams escorted him to another cell telling Allen

       1
        We liberally construe Allen’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
       2
         Allen admits he was not in the room when Nellis allegedly made the statement
and he provides no admissible evidence of this fact. Nellis, however, submitted a sworn
affidavit denying this allegation.


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he had spoken to the inmate and there would be no problem for the weekend. After

Williams placed Allen with the new cellmate, his new cellmate asked why Allen had

problems with his last cellmate. Allen then disclosed his status as a sex offender. The

cellmate proceeded to loudly demand Allen be removed from the cell while banging on

the cell door and swearing. Williams had left for the evening and the officer on duty told

Allen he could not be moved until Williams returned.3 Allen alleged the cellmate had

pens or pencils and, at one time, held a pen as if he might stab Allen. During these

events, Allen suffered a second anxiety attack but was otherwise unharmed. Allen was

placed in a single cell the next day and subsequently elected to return to the general

population.4

       Allen filed a slew of motions,5 only a few of which are at issue in this appeal. He

filed a motion to suppress his deposition because the court reporter was not a notary in

the state in which the deposition was taken as well as numerous motions for appointment

of counsel, all of which the magistrate denied. The district court declined to disturb the

magistrate’s orders and also separately denied Allen’s motion to amend his complaint and

to correct the scheduling order to set a deadline for amendment of the complaint.

       Defendants filed a motion for summary judgment. After reviewing the report and

       3
        In early pleadings, Allen does not mention Williams as the reason he could not
be moved but instead alleges he was told there were no available beds in which he could
be placed.
       4
        Allen returned to the general population but was moved to a different cell block
so he would not be housed with his wife’s ex-husband.
       5
           The district court docket in Allen’s case has over 300 entries.


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recommendation from the magistrate judge and Allen’s objections, the district court

entered summary judgment in favor of the defendants. The court concluded Allen

presented no competent evidence demonstrating he was subjected to a substantial risk of

serious harm or showing deliberate indifference to such a risk by any defendants.

                               STANDARD OF REVIEW

       Allen claims the court erred in: (1) denying his motion to amend his complaint, (2)

refusing to retroactively amend the scheduling order to set a time limit for amending his

complaint, (3) denying his motion to suppress his deposition because the court reporter

was not certified in Colorado, (4) accepting two unsigned affidavits attached to

defendant’s motion for summary judgment, (5) striking the affidavits attached to his

response brief, (6) refusing to appoint counsel to represent him, and (6) granting

summary judgment. The district court’s decision to deny amendment of the complaint

and its acceptance or rejection of evidence is reviewed for abuse of discretion. See Milne

v. USA Cycling, Inc., 575 F.3d 1120, 1133 (10th Cir. 2009) (evidentiary rulings);

Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir.

2008) (motion to amend); Fowler Bros. v. Young, 91 F.3d 1367, 1377 (10th Cir. 1996)

(motion to strike). “Applying the same standard as the district court, we review the

court's grant of summary judgment de novo.” Frank v. U.S. West, Inc., 3 F.3d 1357,

1365 (10th Cir. 1993).

                                      DISCUSSION

A.     Amendment of the complaint and evidentiary motions.

       Allen attempted to amend his complaint more than two years after it was filed and


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discovery had closed. No new information had come to light and he offered no

explanation for the delay in requesting permission to amend. “[U]ntimeliness alone is

sufficient reason to deny leave to amend, especially when there is no adequate

explanation for the delay.” Id. at 1365. The district court did not abuse its discretion in

denying Allen’s Second Motion to Amend Complaint.

       Although Allen was told at the beginning of his deposition that the court reporter

was certified in Kansas rather than Colorado, see Fed. R. Civ. P. 28(a)(1)(A), he waited

until after the deposition was completed and the cost of the deposition incurred before

registering his objection. The district court properly deemed Allen’s objection to the

court reporter’s qualification waived pursuant to Fed. R. Civ. P. 32(d)(2).6

       While the defendants filed their summary judgment motion with two unsigned

affidavits, these exhibits were supplemented the next day with signed copies. Though the

magistrate cited to the unsigned attachments to the motion rather than the supplemental

affidavits in his R&R for the sake of clarity, he made clear the copies were identical. The

rules of civil procedure require a properly executed affidavit to be served with the motion

it is intended to support, see Fed. R. Civ. P. 6(c)(2), however, a court “clearly has



       6
          An objection based on disqualification of the officer before whom a deposition
is to be taken is waived if not made:

       (A) before the deposition begins; or

       (B) promptly after the basis for disqualification becomes known or, with
       reasonable diligence, could have been known.

Fed. R. Civ. P. 32(d)(2).


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discretion to permit supplemental affidavits it finds useful for summary judgment

determination.” Lighton v. University of Utah, 209 F.3d 1213, 1227 (10th Cir. 2000)

(citing old version of Fed. R. Civ. P. 56(e)).7 The court did not abuse its discretion in

concluding Allen was not prejudiced by the accepting the supplement.

       Finally, the magistrate judge was more than justified in striking, sua sponte,

Allen’s “affidavits.” “The court may strike from a pleading . . . any redundant,

immaterial, impertinent, or scandalous matter. The court may act . . . on its own.” Fed.

R. Civ. P. 12(f). As the magistrate explained:

       Doc. #133 is dated 4/22/08, and it contains 41 paragraphs of factual
       statements. Page one of Doc. #131 states “You have 10 days to reply after
       recept [sic] of this document or the affidavit date[d] 4/22/08 will be taken
       as fact.” Doc. #130 contains factual allegations and a statement that the
       plaintiff sent a copy of the affidavit dated 4/22/08 to the defendants; they
       had ten days to respond to it; they failed to respond; and their failure to
       respond to the affidavit resulted in a stipulation of the facts stated in the
       affidavit.

       It appears that the plaintiff is attempting to establish the facts of his case by
       mailing affidavits to the defendants and deeming their failure to respond as
       admissions. The Federal Rules of Civil Procedure do not provide for the
       establishment of factual matters in this manner.

(R. Vol. 1 at 350-51.) The magistrate did not abuse his discretion in striking Allen’s

attempt to circumvent the process established by the Rules.




       7
          Fed. R. Civ. P. 56(e) explicitly allowed the court to “permit affidavits to be
supplemented” by “further affidavits.” The rule has since been amended to eliminate that
language however, there is no reason to believe the simplification of the rule in any way
affects the court’s discretion to accept such affidavits. In any event, the version of the
rule containing the explicit language was still in effect on March 31, 2010, the date of the
district court’s order.


                                             -6-
B.     Summary Judgment and motion to proceed in forma pauperis (ifp)

       “To establish a cognizable Eighth Amendment claim for failure to protect [an

inmate from harm by other inmates], the plaintiff must show that he is incarcerated under

conditions posing a substantial risk of serious harm[,] the objective component, and that

the prison official was deliberately indifferent to his safety, the subjective component.”

Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006). Allen’s conclusory

allegations will not defeat a motion for summary judgment. Nahno-Lopez v. Houser, 625

F.3d 1279, 1285 (10th Cir. 2010) (“Conclusory legal statements cannot preclude

summary judgment.”). Contrary to Allen’s assertions, a policy of “dubble [sic] bunking”

is not a constitutional violation nor is one night spent with an unhappy cellmate. (Id. at

783.) Allen produced no competent evidence demonstrating the defendants were

deliberately indifferent to a substantial risk of serious harm. The court properly granted

summary judgment to defendants.

       Allen filed a motion to proceed in forma pauperis (ifp) on appeal with this Court. 8

To proceed ifp on appeal, Allen “must show a financial inability to pay the required filing

fees and the existence of a reasoned, nonfrivolous argument on the law and facts in

       8
         A motion to proceed ifp on appeal, supported by required documents,
       must be made in the first instance to the district court. Fed. R. App. P.
       24(a)(1). Only if that motion is denied is there occasion to file an ifp
       motion with this court. The filing must be made within 30 days after notice
       of a district court’s denial. See Fed. R. App. P. 24(a)(5). Our consideration
       of an appropriate and timely motion is not a review of the district court’s
       denial, but an original consideration.

Boling-Bey v. U.S. Parole Comm’n, 559 F.3d 1149, 1154 (10th Cir. 2009). Although
Allen failed to request to proceed ifp on appeal in the district court, in the interest of
expeditious processing of appeals, we will nevertheless consider his ifp motion.

                                             -7-
support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991) (emphasis added). An appeal on a matter of law is frivolous where

“[none] of the legal points [are] arguable on their merits.” Anders v. California, 386 U.S.

738, 744 (1967). We have reviewed Allen’s motion to proceed ifp and solicitously

construed his briefs in light of the district court record. His arguments are contrary to

settled law and he makes no reasoned argument for modification of that law. We deny

his motion to proceed ifp and remind him of his obligation to pay the filing and docket

fees in full. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

       AFFIRMED.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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