                                                          FILED
                                               United States Court of Appeals
                                                       Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                    October 12, 2010
                       FOR THE TENTH CIRCUIT      Elisabeth A. Shumaker
                                                      Clerk of Court

JERRY L. THOMAS,

           Plaintiff-Appellant,

v.                                           No. 10-6058
                                     (D.C. No. 5:08-CV-01338-W)
KATRYNA FRECH, Health Services              (W.D. Okla.)
Administrator; DAVID PARKER,
Warden; JEFF TROUTT, Doctor,
JCCC; GENESE MCCOY, Medical
Services Administrator; BILL
MYERS, Security Captain; TRAVER
DEWEESE, Security Officer; SANDY
CLEPPER, Nurse, JCCC; AMBER
CHESTER, Nurse, JCCC; BECKY
GUFFY, Warden’s Assistant;
WILLIAM IRVIN, Security
Lieutenant; JO GWINN, Unit
Manager; ROBERT DENTON, Chief
of Security; RODNEY REDMAN,
Deputy Warden; ALLEN SHAW,
Security Officer; DON FRECH,
Security Lieutenant; RON
ANDERSON, Assistant General
Counsel,

           Defendants-Appellees,

and

ROY ARIAN, Physician’s Assistant;
ROBIN LNU, Nurse, JCCC; JANET
DOWLING, Deputy Warden; SUSIE
SALINAS, Disciplinary Officer;
CHANCE CELL, Nurse; SHARON
    LNU, Nurse; FELICIA HARRIS, Law
    Librarian; DENAYE PRIGMORE,
    Case Manager,

               Defendants.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, and PORFILIO and BRORBY, Senior Circuit
Judges.



        In this civil rights action brought pursuant to 42 U.S.C. § 1983, plaintiff

Jerry L. Thomas, an Oklahoma state prisoner appearing pro se, appeals from the

order and related judgment entered by the district court granting summary

judgment in favor of sixteen of the above-named defendants on Counts I, III, IV,

VI, X, XII, and IX in his amended complaint. 1 Having determined that this

appeal is frivolous, we deny Mr. Thomas’s motion to proceed on appeal without

prepayment of costs and fees and dismiss this appeal pursuant to 28 U.S.C.


*
       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.
1
       In a prior order, the district court dismissed Counts II, VII, VIII, IX, XIII,
XV, XVI, XVII, and XX in Mr. Thomas’s amended complaint for failure to state
a claim. Mr. Thomas is not appealing the dismissal of those counts.

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§ 1915(e)(2)(B)(i). Further, Mr. Thomas is assessed a strike under § 1915(g).

      Mr. Thomas’s claims under the Eighth and Fourteenth Amendments and the

background of this case are thoroughly set forth in: (1) the forty-three page

supplemental report and recommendation that the magistrate judge entered on

October 26, 2009, see R., Doc. 61; and (2) the thirty-four page order that the

district court entered on February 18, 2010, id., Doc. 63. Because we have

concluded that summary judgment was properly entered in favor of defendants on

the above-referenced counts for substantially the same reasons stated in the

district court’s order and the magistrate judge’s report and recommendation, we

will not restate those reasons here. Based on our review of the appellate record,

however, we add the following to the district court’s analysis.

      First, we note that Mr. Thomas’s opening brief contains no substantive

arguments pertaining to Counts IV and VI in his amended complaint. Instead,

Mr. Thomas has attached to his opening brief the summary judgment response

brief and supporting affidavits that he filed in the district court, and he is

apparently attempting to incorporate the arguments set forth therein pertaining to

Counts IV and VI by reference. This court has expressly disapproved of this

practice because Fed. R. App. P. 28 requires the appellant to set out arguments

supported by authorities in his appellate brief. See Gaines-Tabb v. ICI

Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998) (discussing what is

now Fed. R. App. P. 28(a)(9) and holding that “we adhere to our rule that

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arguments not set forth fully in the opening brief are waived”); Wardell v.

Duncan, 470 F.3d 954, 963-64 (10th Cir. 2006) (applying Gaines-Tabb and

holding that it is not acceptable legal argument to incorporate district court

pleadings into an appellate brief by reference and that a plaintiff’s “pro se status

does not except him from such established rules”); 10th Cir. R. 28.4

(“Incorporating by reference portions of lower court . . . briefs or pleadings is

disapproved and does not satisfy the requirements of Fed. R. App. P. 28(a)

and (b).”). Accordingly, we conclude that Mr. Thomas has waived the claims set

forth in Counts IV and VI of his amended complaint.

      Second, with regard to Counts I, III, XII, and XIV in Mr. Thomas’s

amended complaint, we agree with the district court that Mr. Thomas has failed to

demonstrate that there are any genuine issues of material fact concerning his

“arguments that the defendants prevented him from exhausting his administrative

remedies or that the defendants impeded his ability to timely submit his

grievances and hampered his efforts to exhaust as well as Thomas’[s] arguments

that ‘special circumstances’ were created that excused exhaustion.” R., Doc. 63

at 30. Because our analysis of the exhaustion issues differs slightly from that

employed by the district and magistrate judges, however, we specifically note the

following with regard to the exhaustion issues related to these counts:




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      • Count I:

          Grievance JCCC-08-89: The summary judgment record before the
district court shows that it is undisputed that Mr. Thomas failed to complete step
four of the governing prison administrative grievance procedure for this grievance
because he failed to file a final appeal with the administrative review authority or
chief medical officer, see R., Doc. 47, Att. 2-b at 9-11, and there is no evidence
showing that any of the defendants impeded such an appeal.

      • Count III:

          Grievance JCCC-08-96: Although Mr. Thomas claims that prison
officials failed to respond to the “Request to Staff” that he submitted for this
grievance at step two of the grievance procedure, the summary judgment record
before the district court shows that it is undisputed that Mr. Thomas failed to wait
thirty calender days before filing a grievance at step three of the grievance
procedure, as required by the governing prison operations policy in such a
situation. See R., Doc. 47, Att. 2-e at 23-24; Doc. 61 at 26. As a result, Mr.
Thomas’s step-three appeal was properly returned “unanswered” because “[n]o
staff response [was] affixed to the ‘Request to Staff.’” Id., Doc. 47, Att. 2-e
at 22. Further, Mr. Thomas’s subsequent step-four appeal was likewise properly
returned “unanswered” because: (1) “[n]o staff response, signature or date [was]
affixed to the ‘Request to Staff’ form”; and (2) “[a] completed [step-three]
‘Grievance Response from Reviewing Authority’ report was not submitted.”
Id., Att. 2-d at 18.

       Grievance JCCC-08-101: Although Mr. Thomas claims that prison
officials failed to respond to the “Request to Staff” that he submitted for this
grievance at step two of the grievance procedure, the summary judgment record
before the district court shows that it is undisputed that Mr. Thomas failed to wait
thirty calender days before filing a grievance at step three of the grievance
procedure, as required by the governing prison operations policy in such a
situation. See R., Doc. 47, Att. 2-h at 45-46; Doc. 61 at 26. As a result, Mr.
Thomas’s step-three appeal was properly returned “unanswered” because “[n]o
staff response [was] affixed to the ‘Request to Staff.’” Id., Doc. 47, Att. 2-h
at 44. Further, Mr. Thomas’s subsequent step-four appeal was likewise properly
returned “unanswered” because “[a] completed [step-three] ‘Grievance Response
from Reviewing Authority’ report was not submitted.” Id. at 43.




                                        -5-
      • Count XII:

          Grievance JCCC-08-113: The summary judgment record before the
district court shows that it is undisputed that Mr. Thomas failed to complete step
four of the governing prison administrative grievance procedure for this grievance
because he failed to file a final appeal with the administrative review authority,
see R., Doc. 47, Att. 6-c at 12-15, and there is no evidence showing that any of
the defendants impeded such an appeal.

         Request to Staff dated 11/25/08: The summary judgment record before
the district court shows that it is undisputed that Mr. Thomas failed to complete
steps three and four of the governing prison administrative grievance procedure
for this grievance, see R., Doc. 47, Att. 5 at 2-3, and there is no evidence showing
that any of the defendants impeded Mr. Thomas from completing those steps.

         “Sensitive Grievance” JCCC-08-2620: The summary judgment record
before the district court shows that it is undisputed that Mr. Thomas failed to
complete the standard prison grievance process for this grievance after it was
returned unanswered by the administrative review authority at step four because it
was “[n]ot of a sensitive/emergency nature,” R., Doc. 47, Att. 6-a at 4, and there
is no evidence showing that any of the defendants impeded Mr. Thomas from
completing the standard grievance process.

          Grievance JCCC 08-111: The summary judgment record before the
district court shows that it is undisputed that Mr. Thomas failed to complete step
four of the governing prison administrative grievance procedure for this grievance
because he failed to file a final appeal with the administrative review authority,
see R., Doc. 47, Att. 6-b at 7-10, and there is no evidence showing that any of the
defendants impeded such an appeal.

       • Count XIV: Mr. Thomas has admitted that he did not exhaust his
administrative remedies with regard to the claim in this count, see R., Doc. 58,
Att. 1 at 21, ¶ 9, and the magistrate judge correctly determined that the
“Affidavit” attached to Mr. Thomas’s summary judgment response brief failed to
raise a genuine issue of material fact concerning the availability of the prison
administrative grievance procedure to exhaust the claim in this count, id.,
Doc. 61 at 34-36.




                                        -6-
      Third, with regard to Count X in Mr. Thomas’s amended complaint,

although it is undisputed that Mr. Thomas fully exhausted all available prison

administrative remedies as to this count, see R. Doc. 63 at 7-8, 31, we agree with

the district court that Mr. Thomas’s allegations fall short of establishing an

Eighth Amendment violation because, at best, he has only shown a difference of

opinion between himself and the prison’s medical staff concerning his medical

treatment, id. at 32-33.

      Finally, Mr. Thomas claims the district court erred by failing to grant him a

continuance under Fed. R. Civ. P. 56(f) so that he could conduct discovery and

adequately respond to defendants’ motion for summary judgment. We see no

abuse of discretion by the district court. See Trask v. Franco, 446 F.3d 1036,

1042 (10th Cir. 2006) (“We review the denial of a Rule 56(f) motion for an abuse

of discretion.”). Although the magistrate judge did not grant Mr. Thomas a

formal continuance under Rule 56(f) to conduct discovery, the magistrate judge

did grant him two extensions of time to file a response to defendants’ summary

judgment motion. See R., Docs. 49, 50, 54, 55. And, after the grant of the first

extension of time, Mr. Thomas served discovery requests on defendants.

However, because Mr. Thomas’s discovery requests were extremely oppressive

and unduly burdensome (he served six sets of requests for admission and nine sets

of interrogatories and requests for production of documents, for a total of sixty-

six pages of discovery requests; see R., Doc. 52, Atts. 1-15), the magistrate judge

                                         -7-
granted defendants’ motion to stay discovery under Fed. R. Civ. P. 26(c) and

stayed discovery pending a ruling on defendants’ motion for summary judgment.

See R., Doc. 53 at 1-2. In granting the motion for a stay, the magistrate judge

apparently agreed with defendants that “the discover[y] requests submitted by

Plaintiff seek to harass the Defendants, are not addressed at the issues presented

in the pending dispositive motion, and seek legal conclusions. Simply put, the

responses to Plaintiff’s discovery requests cannot possibly assist him in his

response to the pending dispositive motion.” R., Doc. 52 at 4.

      At this point, we cannot conclude that the magistrate judge abused his

discretion in staying discovery and denying Mr. Thomas’s requests for a

continuance under Fed. R. Civ. P. 56(f). In his opening brief, while Mr. Thomas

complains that the magistrate judge did not permit him to file a response to

defendants’ motion for a stay and failed to liberally construe his Rule 56(f)

requests, see Aplt. Br. at 11-12, Mr. Thomas has not identified a single probable

fact in his brief that he could have discovered from defendants that would have

rebutted their motion for summary judgment with regard to the exhaustion issues

or the medical/deliberate indifference claim in Count X, id. at 11-14. Mr.

Thomas has therefore failed to make the showing required for relief under Rule

56(f). See Garcia v. U.S. Air Force, 533 F.3d 1170, 1179 (10th Cir. 2008) (“A

party may not invoke Rule 56(f) by simply stating that discovery is incomplete

but must state with specificity how the additional material will rebut the summary

                                         -8-
judgment motion.”) (quotations omitted); Trask, 446 F.3d at 1042 (“A party

seeking to defer a ruling on summary judgment under Rule 56(f) must . . .

identify[] the probable facts not available and what steps have been taken to

obtain these facts.) (quotation omitted).

      This appeal is DISMISSED as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i), and Mr. Thomas is assessed a strike under § 1915(g).

Mr. Thomas’s motion to proceed on appeal without prepayment of costs or fees is

DENIED, and he is directed to pay the full appellate filing fee. The order filed

by the court on April 19, 2010, directing partial payments is VACATED.



                                                    Entered for the Court


                                                    John C. Porfilio
                                                    Senior Circuit Judge




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