                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      January 25, 2013
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                       TENTH CIRCUIT


 MATTHEW GLEN MORROW,
                Plaintiff–Appellant,                          No. 11-6303
           v.                                        (D.C. No. 5:09-CV-00633-M)
 JUSTIN JONES, Director, Oklahoma                          (W.D. Oklahoma)
 Department of Corrections; LEO
 BROWN, Chaplain; DEBBIE MORTON,
 Director Designee; R. TINKER, Chaplain;
 DAVID MILLER, Warden, Lawton
 Correctional Facility; LIEUTENANT
 FORD; R. SCHNEE, Programs Director;
 RAGER, Chaplain; JULIE WRIGHT,
 Contract Monitor, LCF; ROSE, Contract
 Monitor, LCF; K C MOON, Contract
 Monitor, LCF; DEAN CALDWELL, Asst
 Warden Programs; BOWEN, Asst
 Warden Security; BILL GIBSON,
 Executive Asst; MANUEL, Captain of
 Security; THE GEO GROUP INC,
                Defendants–Appellees.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



       After examining the briefs and the appellate record, this panel has determined



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
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). This case is therefore ordered

submitted without oral argument.

       Plaintiff Matthew Morrow, a state prisoner proceeding pro se, appeals several

orders issued by the district court, which cumulated to result in a full dismissal of his civil

rights complaint. Plaintiff initially filed this action, including an amended complaint,

proceeding pro se. At his request, the district court subsequently assisted Plaintiff in

obtaining pro bono counsel. In his second amended complaint, filed through counsel,

Plaintiff alleged the various Defendants violated his rights under the Religious Land Use

and Institutionalized Persons Act and his Fourteenth Amendment equal protection and

due process rights. In connection with these claims, Plaintiff sought monetary and

declaratory relief.

       Defendants, excluding GEO, filed motions to dismiss in response to Plaintiff’s

second amended complaint. During this time, Plaintiff’s appointed counsel withdrew her

representation after reaching an impasse in communication with Plaintiff. Plaintiff then

proceeded to file several pro se motions prior to the court again assisting Plaintiff, at his

request, in obtaining pro bono counsel. Plaintiff’s second counsel then filed a motion for

leave to file a third amended complaint. After reviewing briefing on the matter and

conducting a hearing, the district court denied Plaintiff’s motion because of the age of the

case and the prejudice to Defendants in light of the fact they had already filed two sets of

dispositive motions. Shortly thereafter, Plaintiff’s second counsel withdrew his

                                              -2-
representation, again after reaching an impasse in communication with Plaintiff.

       As a result of the withdrawal of Plaintiff’s counsel, the district court sua sponte

granted Plaintiff a two-week extension to respond to Defendants’ dispositive motions.

When Plaintiff failed to respond in the allotted time, the magistrate judge issued three

reports and recommendations recommending that each of the claims against Defendants

be dismissed with the exception of the official capacity claims against Defendants Moon

and Rose1 and the claims against Defendant GEO. In each of these reports and

recommendations, the magistrate judge specifically notified Plaintiff of the time period

for filing objections and the consequences of failing to do so. At Plaintiff’s request, the

district court extended the time to file objections by one month. Plaintiff did not file any

objections, but rather requested a second extension. The district court denied this motion

and adopted the reports and recommendations of the magistrate judge.

       In the meantime, Defendant GEO had filed a motion to dismiss for failure to effect

timely service. The magistrate judge issued a report and recommendation recommending

this motion be granted. Plaintiff again did not file an objection. While the report and

recommendation was pending before the district court, Plaintiff filed this appeal. The

following day, the district court adopted the magistrate judge’s report and

recommendation and dismissed the claims against Defendant GEO. We then issued a


       1
        Although Plaintiff named “Julie Wright, Contract Monitor, LCF” and “Rose,
Contract Monitor, LCF” as Defendants, they are one and the same. As explained by Julie
Rose, Wright was her maiden name. (R. Vol. I, Part 3 at 384.) We refer to her
throughout as “Defendant Rose.”

                                             -3-
show cause order based on Rule 54(b) of the Federal Rules of Civil Procedure, noting that

the official capacity claims against Defendants Moon and Rose remained pending in the

district court. In response to this order, the remaining Defendants filed a motion for

summary judgment, which the district court granted. The district court then entered an

order dismissing the remaining claims and entered final judgment. Plaintiff filed a

motion for reconsideration of the order granting summary judgment. Before the district

court ruled on this motion, Plaintiff filed an amended notice of appeal. The district court

later denied the motion for reconsideration. Plaintiff has not filed a new notice of appeal

or an amended notice of appeal since.

       On appeal, Plaintiff raises nine arguments relating to the district court’s disposition

of his various motions and the proceedings generally: (1) the district court erred in

declining to address his allegations of attorney misconduct; (2) the district court erred in

refusing to address his claim that the Prison Litigation Reform Act and Lawton

Correctional Facility’s grievance procedures are facially unconstitutional; (3) the district

court erred in repeatedly denying his motions because of procedural errors; (4) the district

court erred in denying his Rule 60 motion for reconsideration; (5) the district court erred

in denying his motion to file a third amended complaint on the basis that the arguments

had been considered and rejected in connection with Plaintiff’s motion to file a third

amended complaint submitted through counsel; (6) the magistrate judge coerced him to

accept representation by the second pro bono counsel; (7) the district court erred in

refusing to address his claim that he had been denied access to the courts; (8) the district

                                             -4-
court erred in granting summary judgment to Defendants Moon and Rose; and (9) the

district court erred in denying his (unspecified) motion for leave to filed an amended

complaint. We address each of Plaintiff’s arguments, including whether we have

jurisdiction to consider them, in turn.

       First, to the extent Plaintiff claims the district court’s orders should be reversed

because of alleged ineffective assistance of his pro bono counsel, such claim must fail.

“The general rule in civil cases is that the ineffective assistance of counsel is not a basis

for appeal or retrial.” Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006).

Construing Plaintiff’s first argument more broadly, it appears to be based largely on

alleged fraud and misconduct on the part of his two pro bono attorneys, Defendants, and

defense counsel. After a thorough review of the appellate record, we have found no

evidence to support these allegations. We likewise found no evidence to support

Plaintiff’s contention in his sixth argument that the magistrate judge coerced him to

accept pro bono legal assistance. To the contrary, Plaintiff repeatedly requested counsel

to assist with the discovery process.

       In his second claim of error, Plaintiff argues the district court erred in refusing to

address his claim that the PLRA and Lawton Correctional Facility’s grievance procedures

are facially unconstitutional. However, Plaintiff did not assert these claims in his second

amended complaint. Rather, Plaintiff first challenged LCF’s grievance procedures in his

proposed third amended complaint (see Doc. 157-1), which the district court did not grant

him leave to file. Because this claim was therefore never properly raised before the

                                              -5-
district court, Plaintiff cannot raise it on appeal.2 See Daniels v. United Parcel Serv., Inc.,

701 F.3d 620, 632 (10th Cir. 2012) (“Litigants who do not raise a claim or argument

before the district court cannot do so on appeal.”). Plaintiff similarly did not challenge

the provisions of the PLRA until he filed a motion for reconsideration of the district

court’s order granting summary judgment to Defendants Moon and Rose, which the

district court denied on May 23, 2012. Plaintiff’s challenge to this denial is considered in

connection with his fourth argument.

       Plaintiff’s third argument appears to be based on the precept that a pro se litigant’s

pleadings should be construed liberally. Relying on this principle, he contends the district

court erred in repeatedly denying his motions on the basis of procedural errors. After a

thorough review of the record, we are unable to identify which motions Plaintiff claims

were denied in error. Furthermore, to the extent the district court did deny Plaintiff’s

motions on the basis of procedural errors, we find no error in its having done so. We

have “repeatedly insisted that pro se parties 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).

       Fourth, Plaintiff argues the district court erred in failing to address the basis for his

unspecified motions for reconsideration of its orders. We have identified two motions for



       2
         To the extent Plaintiff challenges the district court’s denial of his motions for
leave to file a third amended complaint, we will consider this challenge in connection
with Plaintiff’s fifth and ninth arguments.

                                              -6-
reconsideration, each of which was denied: Plaintiff’s motion for reconsideration filed on

October 24, 2011, and denied on October 26, 2011, and his motion for reconsideration

filed on May 1, 2012, and denied on May 23, 2012. Before turning to the merits of

Plaintiff’s argument, we must first determine whether we have jurisdiction to consider it.

       Plaintiff filed his initial notice of appeal shortly after the district court entered its

order denying his motion for reconsideration. This notice of appeal was premature

because, at the time it was filed, the district court had not yet entered final judgment.

However, “[t]he filing of the district court’s final order [nearly six months later] . . .

served to perfect [Plaintiff’s] premature appeal of the [initial ruling].” Nolan v. U.S.

Dep’t of Justice, 973 F.2d 843, 846 (10th Cir. 1992). Accordingly, we have jurisdiction

to consider Plaintiff’s challenge to the district court’s denial of his first motion for

reconsideration. The same cannot be said of Plaintiff’s challenge to the district court’s

denial of his second motion for reconsideration. Because this order was entered some six

months after Plaintiff’s initial notice of appeal and one month after the entry of judgment,

Plaintiff was required to “separately and individually comply with the Rules of Appellate

Procedure.” Id. He did not do so. Plaintiff did not file an amended notice of appeal or

any other document we could construe as the functional equivalent of a notice of appeal.

We therefore do not have jurisdiction to consider Plaintiff’s argument regarding the

district court’s denial of his second motion for reconsideration.

       Turning then to Plaintiff’s argument only with respect to the first motion for

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

                                               -7-
Plaintiff’s motion. After carefully reviewing the record, we have not identified a

“complete absence of a reasonable basis” in the district court’s denial, nor are we “certain

that the . . . decision is wrong.” Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir.

1999) (internal quotations omitted) (alteration in original).

       In Plaintiff’s fifth and ninth arguments, he challenges the district court’s denial of

his motions for leave to file a third amended complaint, initially filed through counsel and

then later filed pro se. We have thoroughly reviewed the record involving these motions

and see no error in the district court’s conclusions.

       In his seventh argument, Plaintiff challenges the district court’s refusal to address

his claim he had been denied access to the courts. Construing Plaintiff’s pleadings

liberally, we consider this argument to be that the district court erred in denying his

second motion for an extension of time to object to the reports and recommendations,

which was based on Plaintiff’s allegation that he had been denied access to the law

library.3 After a careful review of the record, we see no error in the district court’s denial

of Plaintiff’s second motion for an extension of time. The district court had already


       3
         Defendants additionally interpreted Plaintiff’s argument as containing a challenge
to the district court’s adoption of the magistrate judge’s various reports and
recommendations dismissing most of the claims against the Defendants as well as a
challenge to the district court’s denial of his Rule 60 motions for reconsideration.
However, even construing Plaintiff’s pleadings liberally, we do not discern any challenge
to the district court’s dismissal orders—Plaintiff’s second amended complaint did not
contain a claim for denial of access to the courts and Plaintiff does not otherwise
challenge the dismissal. To the extent Plaintiff’s seventh argument encompasses a
challenge to the district court’s denial of his motion for reconsideration, we have
addressed this issue in connection with Plaintiff’s fourth argument.

                                             -8-
granted Plaintiff an additional month to object to each of the magistrate judge’s three

reports and recommendations. During that one month extension, Plaintiff was able to file

an objection to another of the magistrate judge’s reports and recommendations, yet did

not file any of the objections for which he sought an extension. Rather, on the day before

his objections were due, Plaintiff filed his second motion for an extension of time,

arguing he could not prepare the objections because the prison had been on lockdown and

he therefore had not had access to the library since August 22, 2011. The district court

did not abuse its discretion, Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (per

curiam), in concluding that Plaintiff had “not set forth a sufficient basis to warrant an

additional thirty day extension” (Doc. 225).

       Finally, Plaintiff argues the district court erred in granting summary judgment to

Defendants Moon and Rose. His argument appears to be based on the contention that the

district court ignored evidence he presented that Defendants fabricated evidence to

suppress material facts and commit fraud upon the court. As we previously discussed, we

have found no indication of such conduct on the part of Defendants. Furthermore, the

district court granted summary judgment for Defendants Moon and Rose on the narrow

ground of Eleventh Amendment immunity, which Plaintiff does not contend was

inappropriate. As with the district court’s other orders, we see no error in this conclusion.




                                             -9-
As set forth above, the district court’s orders are AFFIRMED.

                                         Entered for the Court



                                         Monroe G. McKay
                                         Circuit Judge




                                  -10-
