                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 3 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DOYLE MICHAEL SANDERS,

                  Plaintiff - Appellant,
                                                          No. 01-7159
    v.                                               D.C. No. 01-CV-100-P
                                                       (E.D. Oklahoma)
    HOUSTON YEAGER,

                  Defendant - Appellee.


                               ORDER AND JUDGMENT         *




Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.




         After examining the briefs and appellate record, this panel 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 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Doyle Michael Sanders, proceeding pro se, appeals from the grant

of summary judgment in favor of defendant in this civil rights suit brought under

42 U.S.C. § 1983. Plaintiff, formerly a prisoner in the Hughes County, Oklahoma

jail, sued defendant Houston Yeager, Hughes County Sheriff, alleging that his

rights were violated by a lack of medical care, by interference with his mail, and

by the unsafe and unsanitary conditions of his confinement. On cross-motions for

summary judgment, the district court ruled in favor of defendant, denying

plaintiff’s motion without discussion.

       On appeal, plaintiff argues that the district court should not have granted

summary judgment for defendant because there are disputed issues of material

fact to be tried. He does not assert that his own motion for summary judgment

should have been granted.

       We review the grant of summary judgment de novo, applying the same

standard the district court applied under Fed. R. Civ. P. 56(c).   O’Toole v.

Northrop Grumman Corp. , 305 F.3d 1222, 1225 (10th Cir. 2002). A summary

judgment is warranted “if the pleadings, depositions, answers to interrogatories,

and admission on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Rule 56(c). Because plaintiff appears pro se, his




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pleadings must be read liberally.    Haines v. Kerner , 404 U.S. 519, 520-21 (1972)

(per curiam).

       The district court properly granted judgment to defendant on plaintiff’s

Eighth Amendment claim alleging the delay and denial of medical care and we

affirm on that point for the reasons stated by the district court. The district court

also properly held that because plaintiff was transferred away from the Hughes

County jail, his claims for injunctive relief regarding his mail and the conditions

at the jail are moot.

       The only question in this appeal is whether plaintiff has a surviving claim

for damages. In his complaint, plaintiff sought only injunctive relief.        See R.,

doc. 1, at 6. He never formally sought to amend his complaint to add a claim for

damages. However, in his motion for summary judgment, plaintiff “request[s]

this court to grant his summary judgment as to Defendant[’]s liability for

damages.” Id. , doc. 24, at 1. In addition, the document labeled “affidavit”       1



attached to plaintiff’s motion for summary judgment states that he “seeks

compensation damages of $1,000 a day compensation [sic] for pain, agony and

degrading conditions he was and is forced to suffer” and “punitive damages

against Defendant in the amount of $200,000.”         Id. , att. 1, at 3.


1
       The document is neither sworn nor is plaintiff’s signature attested, so it is
not a proper affidavit. See United States v. Berisford , 750 F.2d 57, 58 (10th Cir.
1984) (per curiam).

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       Under Fed. R. Civ. P. 8(f), “[a]ll pleadings shall be so construed as to do

substantial justice.” Thus, the caption on a pleading does not constrain the

court’s treatment of a pleading.   N. Alamo Water Supply Corp. v. City of San

Juan, Tex. , 90 F.3d 910, 918 (5th Cir. 1996);   Hamlin v. Warren , 664 F.2d 29, 30

(4th Cir. 1981). Our question is therefore whether the district court should have

given the plaintiff an opportunity to amend his complaint to add claims for

compensatory and punitive damages before entering summary judgment against

him.

       We believe the court should have done so. Plaintiff prayed for relief in the

form of a judgment against defendant for damages, and identified both the kind

and amount of damages he sought.      See R., doc. 24, at 1, att. 1, at 3. The court, in

responding to these summary judgment orders, had to consider all the record

before it, and thus was on notice of the plaintiff’s intention to seek damages. The

lack of a formal motion is not sufficient ground for the district court to grant

summary judgment without leave to amend, since plaintiff here made clear his

willingness to amend.    Reynoldson v. Shillinger , 907 F.2d 124, 126 (10th Cir.

1990). Our holding in this regard is consistent with the majority of the other

circuit courts.   See e.g. Grayson v. Mayview State Hosp.   , 293 F.3d 103, 109 & n.9

(3d Cir. 2002) (holding that the district court should have informed pro se

plaintiff of his right to amend after defendant filed motion to dismiss).


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       Under Rule 15(a), a party may amend his complaint once as a matter of

course before the defendant files a responsive pleading, and may amend his

complaint with the court’s permission after that. Even where the court’s

permission is required, leave to amend “shall be freely given when justice so

requires.” Id. And, the court should ordinarily allow amendment if, by doing so,

plaintiff can cure the defect.   See Curley v. Perry , 246 F.3d 1278, 1284 (10th

Cir.), cert. denied , 122 S. Ct. 274 (2001);    Reynoldson v. Shillinger , 907 F.2d 124,

126 (10th Cir. 1990); Triplett v. LeFlore County, Okla.      , 712 F.2d 444, 446 (10th

Cir. 1983). Thus, we first must determine whether plaintiff’s allegations are

sufficient to state a claim for compensatory or punitive damages.

       We conclude that plaintiff’s allegations, as a whole, suggest that he likely

will be able to plead a claim for compensatory damages and punitive damages if

given a chance to file an amended complaint. Under the Prison Litigation Reform

Act, “[n]o Federal civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional injury suffered while

in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e);         see

Searles v. Van Bebber , 251 F.3d 869, 875-77 (10th Cir. 2001),        cert. denied , 122

S. Ct. 2356 (2002). However, “punitive damages may be recovered for

constitutional violations without a showing of compensable injury.”         Searles , 251

F.3d at 880. To obtain punitive damages under 42 U.S.C. § 1983, plaintiff must


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show that defendant’s conduct was “‘motivated by evil motive or intent, or . . .

involve[d] reckless or callous indifference to the federally protected rights of

others.’ Whether the evidence was sufficient is a question of law which we

review de novo .” Id. at 879 (quoting Smith v. Wade , 461 U.S. 30, 56 (1983)).

       Plaintiff asserted in his opposition to defendant’s motion for summary

judgment that he was physically injured when he slipped in a pool of water on the

floor. See R., doc. 23, at 2. Plaintiff also asserts that defendant allows “sewage

from [the] toilet leaving a constant pool of stinking water in the floor,”      id. , doc.

1, at 7, keeps plaintiff locked up twenty-four hours a day without sunshine,

television, radio, newspapers, magazines, a commissary, or use of the telephone,

see id. at 2, and intercepts and opens plaintiff’s legal mail,    see id. at 3, 7.

       We remand for the district court to allow plaintiff the opportunity to amend

his complaint to add claims for compensatory and punitive damages. The

judgment of the United States District Court for the Eastern District of Oklahoma

is AFFIRMED in part and REVERSED in part, and the case is REMANDED for

further proceedings. Plaintiff is reminded that he remains obligated to continue

making payments toward the appellate filing fee until it is paid in full. The

mandate shall issue forthwith.

                                                          Entered for the Court

                                                          David M. Ebel
                                                          Circuit Judge

                                              -6-
01-7159, Sanders v. Yeager


O’BRIEN, Circuit Judge, concurring and dissenting.

      I agree that, for the reasons clearly stated by the district court, summary

judgment was properly entered against Mr. Sanders on his claims for delay and

denial of medical care and his claims for injunctive relief. I also agree the only

remaining question is whether he has surviving claims for damages. Unlike the

majority, I would demand that to pass muster his claims need be clearly stated or

at least readily ascertainable, based upon sound legal theory, and supported by the

record. In his complaint he asked only for injunctive relief and he never sought,

directly or in any other reasonably identifiable way, to amend his complaint to

add damage claims. Understandably the district court concluded: “A review of

the record indicates plaintiff is seeking only injunctive relief in this action and

has requested no compensatory or punitive damages.”

      Accommodating him too much, the majority points, selectively, to part of

his motion for summary judgment as providing sufficient notice of his true, but

late blooming and imprecise, causes of action. Troubling is that his motion for

summary judgment, here produced less selectively, “request[s] this court to grant

his summary judgment as to Defendant[’]s liability for damages alledging [sic]

illegal and unlawfull [sic]; (1) opening of legal mail, delaying and detaining mail.

(2) Unsafe and unsainitary [sic] Housing (3) Lack of Medical care. (4) See

Plaintiffs brief and affidavit in support.” Those issues were all, properly by our
review, resolved against him. It is difficult to hang much more on those bare

bones. But, because an “affidavit” attached to Mr. Sanders’ motion (which the

majority concedes was improper (majority opinion, p. 3 n.1)) states that he “seeks

compensation damages of $1,000 a day compensation [sic] for pain, agony and

degrading conditions he was and is forced to suffer” and “punitive damages

against Defendant in the amount of $200,000,” the majority concludes the district

court was “on notice” of his “intention to seek damages.” Majority opinion, pp.

3-4. That simple conclusion imposes much upon the trial judge. Apparently

being “on notice” requires him to comb the record, supply legal theories

supporting Mr. Sanders’ “intention to seek damages,” justify those theories under

existing law and, accordingly, deny the Defendant's motion for summary

judgment. That expectation, effectively and improperly, makes the trial judge an

advocate. An example is revealing.

      Mr. Sanders complains vociferously and generally about the living

conditions and accommodations in the jail, but his complaints focus on alleged

failure to provide timely and adequate medical care. It is in his “affidavit” with

its litany of complaints about medical care that he requests actual and punitive

damages. Since the district court disposed of the medical care issues contrary to

his position, and correctly by our lights, I am hard pressed to understand how

those same complaints can be construed to state a more generalized and undefined


                                         -2-
claim for damages. In addition to medical complaints the “affidavit” states Mr.

Sanders was injured in two falls: one in the drunk tank in 2000 and one in the

day room in 2001. The treatment he received for those falls was within

constitutional norms. Nevertheless, recognizing Mr. Sanders’ need to show

physical injury as a predicate to any claim of mental and emotional injury, the

majority stretches to supply it stating that he asserted physical injury “when he

slipped in a pool of water on the floor” and implying that the falls are somehow

coupled with his allegations that a leaking toilet left a pool of “stinking water” in

the “underground dungeon where [he] . . . was being held.” R., doc. 1 at 3. The

reasonable inference is the opposite. There is no reason to assume that the water

problem in his cell had anything to do with his falls in the drunk tank or the day

room; certainly he has not identified the link. The district court ought not be

burdened with the task of sorting out ill defined theories from undifferentiated

factual allegations and complaints.

      Neither plaintiff’s summary judgment motion nor the “affidavit” attached to

it were effective to amend the complaint. Neither document contains language

that could be construed to request leave to amend the complaint to add a claim for

damages. Rather, in each document, plaintiff asserts claims for damages that he

did not raise in his complaint. Even on appeal, plaintiff does not argue that he

amended the complaint or attempted to do so. Rather, he asserts that he raised his


                                          -3-
claim for damages in the settlement conference. There is nothing in the record to

confirm this assertion.

       “Although we construe [plaintiff’s] pleadings liberally because he is a pro

se litigant, he nevertheless must follow the same rules of procedure that govern

other litigants.”   Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992). Under

Fed. R. Civ. P. 7(b)(1) and 15(a), plaintiff was obligated to seek leave to amend

his complaint, if he wished to add claims for damages, supply relevant factual

allegations and identify a sound legal basis (but without the precision expected of

an attorney) justifying the relief sought. For the sake of clarity and regularity in

the proceedings and despite the fact that plaintiff is pro se, we may not read into

his summary judgment pleadings a request for leave to amend his complaint and

we ought not consider his improper “affidavit.”    See Grayson v. Mayview State

Hosp. , 293 F.3d 103, 109 n.9 (3d Cir. 2002). Because he did not amend, either

explicitly or by reasonable inference, he does not have a claim for either

compensatory or punitive damages, and none of his claims survive the district

court’s grant of summary judgment to defendant.




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