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

                           FOR THE TENTH CIRCUIT                       October 11, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DAVON LYMON,

             Plaintiff-Appellant,

v.                                                         No. 11-2210
                                                (D.C. No. 1:08-CV-00386-JB-DJS)
ARAMARK CORPORATION; JOSEPH                                 (D. N.M.)
NEUBAUER; CHARLIE CARRIZALES,

             Defendants,

and

WEXFORD CORPORATION, JOHN
SANCHEZ; ABNER HERNANDEZ;
JOE WILLIAMS; NEW MEXICO
DEPARTMENT OF CORRECTIONS,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff Davon Lymon appeals from three district court orders: one denying

class certification; another dismissing his belatedly asserted claim against defendant

Wexford Corporation under the statute of limitations; and a third dismissing his

claims against the other defendants-appellees for failure to state a claim under

Fed. R. Civ. P. 12(b)(6).1 We affirm the dismissal orders for the reasons explained

below. In light of that disposition on the merits, we dismiss as moot the appeal as it

relates to class certification. See Spaulding v. United Transp. Union, 279 F.3d 901,

915 (10th Cir. 2002); Price v. FCC Nat’l Bank, 4 F.3d 472, 475 (7th Cir. 1993).

                             I.     PLEADING HISTORY

      Mr. Lymon commenced this action in state court in August 2005. His pro se

complaint alleged that while a prisoner at the Los Lunas, New Mexico Correctional

Facility, he was assigned by Officer John Sanchez to work in the prison kitchen, run

by Aramark Corporation, where he was later injured due to a preexisting condition

(surgically repaired rotator cuff). He alleged that Officer Sanchez violated prison

policy by assigning him to the work without a medical clearance, and that Aramark

employees required him to do kitchen tasks that were contrary to a medical

prescription prohibiting him from lifting objects with his left arm. On July 3, 2005,

when lifting trays in the kitchen, his shoulder gave out and he fell, prompting him to

pursue negligence and breach-of-contract claims against Aramark and its employees,


1
       The claims against the remaining defendants were dismissed as a result of
settlement.


                                         -2-
and a negligence claim against Officer Sanchez. He also complained that Captain

Abner Hernandez foreclosed his use of the prison’s formal grievance process for the

incident (by deeming the matter resolved informally through an acknowledgment of

the lack of Mr. Lymon’s required medical clearance), though he did not assert a legal

claim against Captain Hernandez at that time.

      After Mr. Lymon obtained counsel and sought to amend his pleadings to add,

inter alia, claims under 42 U.S.C. §§ 1981 and 1983, the case was removed to federal

court. In February 2009, Mr. Lymon filed a First Amended Complaint. This added

little in the way of factual allegations, but expanded the number and complexity of

his legal claims. His claims against prison officials and the department of corrections

were multiplied through respondeat superior theories. His state tort claims now

incorporated allegations referring to the state governmental immunity/tort claims act.

Captain Hernandez became a defendant, and constitutional permutations of the tort

claims against him and Officer Sanchez were added. Mr. Lymon further alleged that

defendants had interfered with his right to contract and imposed on him a condition

of involuntary servitude in violation of the Thirteenth Amendment.

      Finally, in December 2009, Mr. Lymon amended his pleadings once more. For

the first time he asserted a claim against Wexford Corporation, alleging that it did not

provide him with adequate care following his injury in the kitchen. He also alleged

more generally that it failed to conduct inmate-intake and infections-disease

examinations and ran a below-standard hepatitis C Clinic.


                                         -3-
                      II.    DISTRICT COURT DISPOSITION

      The district court disposed of the relevant claims in two very thorough orders.

We summarize them here.

      The first order, Lymon v. Aramark Corp., 728 F. Supp.2d 1222 (D. N.M.

2010), painstakingly parsed through the various claims asserted against the state

defendants, explaining why none was legally viable. Count I against Officer Sanchez

for negligently classifying Mr. Lymon for kitchen work, and Count II against Captain

Hernandez for negligently denying access to the formal grievance process and

thereby insulating Sanchez and Aramark from legal accountability, failed because the

New Mexico Tort Claims Act (NMTCA) did not waive governmental immunity for

the alleged conduct. Specifically, N.M. Stat. § 41-4-6, which waives immunity for

“operation or maintenance of any building,” concerns unsafe conditions on

government property and does not apply to the administrative functions involved

here. Lymon, 728 F. Supp.2d at 1266-68 (relying primarily on Archibeque v. Moya,

866 P.2d 344, 347 (N.M. 1993) (holding prison’s negligent classification of prisoner

fell outside waiver of immunity)). And N.M. Stat. § 41-4-12, which waives

immunity for certain torts committed by “law enforcement officers,” does not apply

to corrections officers. Lymon, 728 F. Supp.2d at 1268-70 (relying primarily on

Callaway v. N.M Dep’t of Corr., 875 P.2d 393 (N.M. App. 1994) (holding

corrections officers are not law enforcement officers under § 41-4-12)).




                                         -4-
      Counts III and IV assert tort claims against the New Mexico Department of

Corrections (NMDOC) and its Secretary, Joe Williams. To the extent these claims

are based on respondeat superior, the district court held they failed because the

underlying claims against Officer Sanchez and Captain Hernandez failed. Lymon,

728 F. Supp.2d at 1271 (relying on Silva v. State, 745 P.2d 380, 385 (N.M. 1987)

(noting respondeat superior liability under the NMTCA first requires “a negligent

public employee who [himself] meets one of the waiver exceptions under [the

NMTCA]”) (further quotation omitted)). To the extent they assert direct claims of

negligent policy, training, supervision, etc., the court held the claims fell outside the

waivers of immunity in the NMTCA. Id. at 1272-73.

      Count V, a § 1983 claim against Officer Sanchez and Captain Hernandez,

alleges that their combined conduct forced Mr. Lymon to work for Aramark in the

prison kitchen in violation of his procedural and substantive due process rights. The

district court rejected the procedural aspect of the claim for lack of a protected liberty

interest in prison work assignments. Id. at 1258-59. The court rejected the

substantive aspect of the claim for lack of conduct egregious enough to satisfy the

controlling shock-the-conscience standard. Id. at 1259-60.

      Count VI claims that Officer Sanchez’s conduct reflected racist interference

with Mr. Lymon’s right to contract, specifically in relation to his work with Aramark,

in violation of §§ 1981 and 1983. The district court rejected this claim for lack of

any actual loss of a contractual interest. That is, even assuming the existence of the


                                           -5-
oral contract that Mr. Lymon alleged had been created between him and Aramark,

Sanchez’s conduct assisted rather than impeded its formation. Id. at 1263.

       Counts VII and VIII seek to impose liability on Secretary Williams and

NMDOC for an unwritten policy of ignoring Aramark’s substandard food service and

the misclassification of inmates for that service who are medically unfit for the

assignment, particularly those known to carry infectious disease. Noting that the

Second Amended Complaint did not allege any harm suffered by Mr. Lymon from

the alleged policy, the district court held that his claims failed for lack of any actual

injury. Id. at 1262. In this regard, the court refused to consider an affidavit that

Mr. Lymon claimed showed an injury,2 holding that a conversion from dismissal to

summary judgment proceedings was not warranted. The court relied on the fact that

the affidavit had been submitted months before Mr. Lymon filed his Second

Amended Complaint, yet he elected not to include its averments in his pleading. Id.

at 1261. The court cited its prior leniency in affording Mr. Lymon repeated

opportunities to amend his pleadings and concluded that further delay occasioned by

conversion of the pending motion to dismiss into a motion for summary judgment

was not warranted. Id. at 1261-62.




2
      The affidavit stated that Mr. Lymon had hepatitis C, without saying when or
how he contracted the disease, much less attributing it to the prison’s food service.
See App. at 90. His continuing contention that this somehow demonstrates an injury
supporting his claims in this case is meritless.


                                           -6-
      Count XIII asserts that working in the prison kitchen constituted involuntary

servitude in violation of Mr. Lymon’s rights under the Thirteenth and Fourteenth

Amendments. The district court relied on unopposed case law, and the language of

the Thirteenth Amendment itself,3 to hold that prison labor is not impermissible

involuntary servitude. Id. at 1264 (citing Tracy v. Keating, 42 F. App’x 113, 116

(10th Cir. 2002)); see also Ruark v. Solano, 928 F.2d 947, 949 (10th Cir. 1991),

overruled on other grounds by Lewis v. Casey, 518 U.S. 343 (1996); Williams v.

Henagan, 595 F.3d 610, 621-22 (5th Cir. 2010).

      Count XIV is the last claim asserted against the state defendants. In this claim

Mr. Lymon alleges that the classification decisions of Officer Sanchez represent a

threat to public health, due to his assignment of inmates with infectious diseases to

work in the prison kitchen. He further alleges that a decision that places the public or

any inmate at risk from a health hazard is against federal policy and hence actionable

under the Supremacy Clause. The district court again noted that there was no

allegation that Mr. Lymon (or anyone else) contracted an infectious disease as a

result of Officer Sanchez’s classification decisions, see also note 2 above, and held

that the count failed to state a claim upon which relief could be granted and that

Mr. Lymon lacked standing to assert such a claim in any event, Lymon,

728 F. Supp.2d at 1264-65.
3
       The Thirteenth Amendment provides that “[n]either slavery nor involuntary
servitude, except as punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States.”


                                         -7-
      The second order under review dismissed Mr. Lymon’s claim for inadequate

medical care, newly initially asserted against Wexford Corporation in the Second

Amended Complaint, as barred by the applicable statutes of limitation. See App. at

236 (Memorandum Opinion and Order filed July 7, 2010). For purposes of § 1983,

the district court applied the three-year limitation period for personal injury actions

set out in N.M. Stat. § 37-1-8. App. at 250-51; see Garcia v. LeMaster, 439 F.3d

1215, 1217 n.3 (10th Cir. 2006). For purposes of the state law aspect of the claim,

the court noted that the NMTCA governs tort actions against prison health care

providers, see N.M. Stat. § 41-4-3(F)(7), and applied its two-year limitations period,

id. § 41-4-15. App. at 252. Under both provisions, the claim against Wexford

Corporation that Mr. Lymon first sought to add in April 2009, was facially time

barred.

      Mr. Lymon advanced several arguments to avoid the time-bar, none of which

were successful. The district court rejected his effort to invoke the relation-back

principle in Fed. R. Civ. P. 15(c), holding that nothing in the earlier pleadings would

have given Wexford Corporation notice that Mr. Lymon had any complaint about his

medical treatment, much less that he would have brought suit over it earlier but for a

mistake about the identity of the proper defendant. App. at 255-56. As for his

attempt to characterize his claim as sounding in contract—despite its assertion as a

“deliberate indifference” claim and the absence of any allegation of a breached

contractual obligation, see App. at 157—in order to invoke the longer limitations


                                          -8-
periods in N.M. Stat. § 31-1-3 (six years for action on written contract) and § 31-3-4

(four years for action on oral contract), the court noted that the nature of the right

sued upon controls and this claim for damages for personal injury clearly sounded in

tort, not contract, App. at 253-54. The court also rejected Mr. Lymon’s argument for

delayed accrual, because whether or not he knew the full extent of his injury, he was

aware of its existence and the inadequate care alleged as its cause when the incident

in the kitchen occurred. Id. at 254-55. Finally, the court dismissed his argument for

equitable tolling based on the other defendants’ delays in answering his earlier

pleadings, because this did not preclude him from adding a claim, or filing a separate

lawsuit, against Wexford Corporation in timely fashion. Id. at 254-55.

                          III.   CONTENTIONS ON APPEAL

       In contrast to (perhaps because of) the thorough nature of the district court’s

orders, Mr. Lymon’s appellate briefing is insubstantial and unpersuasive. Much of

the district court’s analysis is effectively unchallenged, and it is not our role to act as

advocate by scrutinizing that which the appellant has not put in issue. Limiting our

review to the arguments advanced on appeal, we readily affirm for substantially the

reasons stated by the district court.

       Much of Mr. Lymon’s briefing concerns the affidavit touched on earlier. At

some points, he challenges the district court’s refusal to consider the affidavit; at

others, he simply refers to the affidavit in support of other arguments. Obviously,

once we conclude that the district court properly refused to consider the affidavit, the


                                           -9-
latter arguments lose their premise and fail as well. The district court noted that the

affidavit, which was neither attached to nor referenced in the Second Amended

Complaint,4 was not part of the pleadings for purposes of the motion to dismiss. The

court concluded that conversion of the motion to one for summary judgment to

permit consideration of the affidavit—requiring further delay of the proceedings for

the parties to marshal and present evidence on claims already subject to challenge for

their facial insufficiency—was not warranted. This prudent decision was within the

court’s discretion, Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998),

and we see nothing, particularly in the points raised by Mr. Lymon on appeal, to

suggest it abused that discretion.

       Mr. Lymon notes that his initial pleadings were verified and hence could have

been accepted as affidavits as well.5 That is immaterial. The status of the superseded

pleadings as potential affidavits has nothing to do with whether the affidavit at issue

should have been deemed part of the Second Amended Complaint. Moreover, if the

factual allegations in these earlier pleadings—reproduced in the Second Amended

Complaint and assumed to be true for purposes of the motion to dismiss—were

legally insufficient to state a claim for relief, they perforce were not, as factual

4
      The affidavit was submitted months before the filing of the Second Amended
Complaint, when it was attached to a motion for reconsideration of an earlier order
denying amendment.
5
       He also refers in passing to another affidavit, submitted by counsel earlier in
the case. That affidavit relates to service-of-process matters and is not remotely
pertinent to the issue at hand.


                                          - 10 -
averments, sufficient to require the court to postpone its disposition of the case in

favor of protracted summary judgment proceedings. Mr. Lymon’s fallback argument

that defendants waived any objection to his use of the affidavit in opposition to their

motion to dismiss the Second Amended Complaint because they did not object when

he submitted it as a mere attachment to a filing made months before they even moved

to dismiss the Second Amended Complaint, borders on the frivolous.

       Mr. Lymon’s briefing on the substance of his claims fares no better. As noted

earlier, much of what he argues depends on his affidavit, which we have concluded

the district court properly refused to consider.6

       Mr. Lymon takes issue with the district court’s analysis of the NMTCA’s

applicability to his state tort claims, but his conclusory objections in this respect are

unpersuasive. In holding that Officer Sanchez’s assignment of prisoners to work in

the kitchen was not actionable under the NMTCA, the district court relied on the

New Mexico’s Supreme Court’s decision in Archibeque v. Moye, which held that the

administrative classification of a prisoner—there, for entry into the general prison

population—falls outside the NMTCA’s limited waiver of immunity for dangerous


6
       We note that the affidavit, particularly the handwritten letter attached to it,
relates events involving Officer Sanchez that occurred years after this action was
filed and that do not concern the prison kitchen. The appropriate course to pursue
legal redress for such matters would have been either to move to supplement the
pleadings under Fed. R. Civ. P. 15(d), or to commence another action. The affidavit
does refer to one claim in the Second Amended Complaint, but that is the claim
against Wexford Corporation dismissed on a legal basis (statute of limitations) to
which the affidavit is immaterial.


                                          - 11 -
conditions on government premises in N.M. Stat. § 41-4-6. See Archibeque,

866 P.2d at 346-349. Mr. Lymon states that Archibeque is distinguishable on seven

bases, summarily listed as bullet points. See Aplt. Opening Br. at 12. The first states

“Fact pattern is different,” which presumably refers to the third and fourth points that

state “[t]he Corrections Officer [in Archibeque] was strictly an Administrative

Officer” and “[i]n Mr. Lymon’s Affidavit Sanchez is mainly a Line Officer.” Id. But

Archibeque did not turn on the job title of the officer who made the classification

decision. Rather, the court looked to the nature of the decision itself, holding that

prison classification served an administrative function distinct from the relevant

statutory category of “operation and maintenance” of the prison premises. 866 P.2d

at 347. The second point advanced by Mr. Lymon, that Archibeque was a decision

on a certified question and thus somehow less authoritative is meritless. The fifth

and sixth points refer to unrelated conduct of Officer Sanchez taken from the

properly rejected affidavit.

      The seventh point just cryptically states: “FN 3 p. 621 in Achebeque [sic] v.

Moye concerning the need for more than one inmate to be named as injured.” Aplt.

Opening Br. at 12. That is not proper argument, see United States v. Wooten,

377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider issues adverted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation.” (internal quotation marks omitted)), but a separate comment is

warranted. Insofar as Mr. Lymon is contending that the cited footnote suggests


                                         - 12 -
NMTCA immunity might not apply to an administrative decision that causes injury to

groups of persons (such as the sickening of multiple inmates served food by infected

prisoners assigned to work in the kitchen), we note that the Second Amended

Complaint does not allege any such harm even to Mr Lymon, much less to anyone

else. Also inadequate as appellate argument is the string cite following the bullet

points, introduced with the conclusory statement that Mr. Lymon “offers other New

Mexico cases which are favorable to his interpretation of NMTCA.” Aplt. Opening

Br. at 12.7

       Most of Mr. Lymon’s arguments concerning his constitutional claims derive

from the content of the properly rejected affidavit and thus cannot succeed. He does,

however, present a cursory legal argument to support his involuntary-servitude claim.

In an effort to circumvent the established principle, noted by the district court, that

prison inmates may be forced to work without violating the Thirteenth Amendment,

he insists his involuntary-servitude claim is, rather, for forcing inmates to work


7
       The cited cases are a mix of NMTCA immunity and statute-of-limitations
decisions with no clear import for our facts here. But included in the string cite is
Silva v. State, 745 P.2d 380, the case discussed in the Archibeque footnote mentioned
in the seventh bullet point. Silva held that § 41-4-6 could potentially waive immunity
for inadequacies in a prison’s “staffing, training, and provision for facilities which
would have provided [a decedent inmate] a course of treatment and acute mental
health care” for the illness that led to his suicide. Silva, 745 F.3d at 381-82, 385.
This case (limited to its facts by Archibeque, which held that it did not create a
general rule of liability for administrative functions including inmate classification,
866 P.2d at 349), was fully addressed, in conjunction with Archibeque, by the district
court here, see Lymon, 729 F. Supp.2d at 1271-73, and Mr. Lymon offers nothing by
way of argument to indicate any error in the district court’s thorough analysis.


                                          - 13 -
against legitimate medical limitations. But this argument throws the constitutional

claim actually alleged out with the bathwater. There is a constitutional prohibition

dealing with the disregard of medical limitations, though it is not the Thirteenth

Amendment provision against involuntary servitude invoked in the Second Amended

Complaint. Rather, it is the Eighth Amendment’s prohibition on cruel and unusual

punishment—which has never been the constitutional basis for any of Mr. Lymon’s

claims against the state defendants.

       We have nothing to add with respect to the dismissal of the claim belatedly

asserted against Wexford Corporation. The district court’s analysis of the issues

surrounding application of the proper statute of limitations to this claim is quite

thorough and nothing Mr. Lymon says on appeal persuades us of the presence of any

error in the decision.

       Finally, we note that while we have considered all of the contentions advanced

by Mr. Lymon on appeal, we have addressed here only those points warranting

explicit comment. In this same vein we note that any new arguments belatedly raised

in the reply brief are deemed waived. See Aviva Life & Annuity Co. v. F.D.I.C.,

654 F.3d 1129, 1136 n.6 (10th Cir. 2011).

       The judgment of the district court is AFFIRMED.


                                                  Entered for the Court


                                                  Wade Brorby
                                                  Senior Circuit Judge

                                         - 14 -
