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

                             FOR THE TENTH CIRCUIT                      September 21, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
HAROLD CUNNINGHAM,

      Plaintiff - Appellant,

and                                                        No. 17-1054
                                              (D.C. No. 1:12-CV-01570-RPM-MEH)
PERCY BARRON; ALPHONSO BLAKE;                               (D. Colo.)
JABBAR CURRENCE; CARLTON
DUNBAR; SCOTT FOUNTAIN; SEAN
GILLESPIE; CHARLES HIPPS; RONNIE
HOUSTON; JOHN LAMB; HERBERT
PERKINS; JOHN J. POWERS; ARNELL
SHELTON; MARCELLUS
WASHINGTON; CENTER FOR LEGAL
ADVOCACY, d/b/a Disability Law
Colorado,

      Plaintiffs - Appellees,

v.

FEDERAL BUREAU OF PRISONS,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

      *
         After examining the briefs and appellate record, this panel has determined
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). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                        _________________________________

        Harold Cunningham, proceeding pro se, appeals the judgment approving the

settlement of a class action brought by mentally ill prisoners housed in the federal

administrative-maximum facility in Florence, Colorado (ADX). He argues that the

settlement was not fair, reasonable, or adequate because it did not provide for money

damages. He has requested leave to proceed in forma pauperis (IFP) on appeal. We

grant IFP and affirm.

   I.      Background

        We provide a brief description of the background to frame the issues presented

for review. In 2012 counsel for several ADX prisoners filed the underlying action

alleging that they were denied required mental-health treatment and were so abused

by prison personnel that the conditions of their confinement constituted cruel and

unusual punishment in violation of the Eighth Amendment. In 2015 counsel

submitted a second amended complaint, the operative complaint in the case, seeking

class certification for ADX inmates needing mental-health evaluation and treatment.

A federal magistrate judge facilitated discovery and settlement negotiations. In

November 2016 the plaintiffs filed a proposed settlement agreement setting out the

terms of a settlement, including required policies and procedures for diagnosis and

treatment of ADX prisoners. The district court held a three-day fairness hearing

under Fed. R. Civ. P. 23(a). Several ADX prisoners testified by videotape and others

submitted written statements.



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      The district court noted that the defendant Federal Bureau of Prisons (BOP)

“has not admitted an Eighth Amendment violation as to any of the plaintiffs or a

systemic violation at ADX.” R. Vol. 1, at 367. Rather, the BOP agreed to the

settlement because it recognized the need for new policies and practices for mentally

ill inmates at ADX. The court observed that although the case was triable, “[t]he

complexities of such a trial are evident. That is a principal reason for the settlement

of this action.” Id. And it pointed out that the settlement could not be relied on in an

individual claim against a BOP official or employee brought in a separate Bivens

action. See Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S.

388 (1971).

      The district court acknowledged that some of the prisoners objected to the

settlement because it did not provide for any awards of money damages. But it noted

(1) that the operative complaint did not include claims for damages because damage

awards against the BOP are barred by sovereign immunity; (2) that even if prisoners

had claims for medical negligence under the Federal Tort Claims Act, those claims

were not appropriate in a class action because they would not meet the class-action

requirements in Rule 23(a) of commonality and typicality; and (3) that any inmate

may still pursue an independent Bivens action. The court approved the settlement

agreement and later dismissed the action subject to retention of jurisdiction to

enforce the agreement.




                                           3
   II.       Discussion

         We review the district court’s approval of the settlement for abuse of

discretion. Fager v. CenturyLink Commc’ns, LLC, 854 F.3d 1167, 1174–75

(10th Cir. 2016). “A district court may approve a proposed settlement only after

‘finding that it is fair, reasonable, and adequate.’” Id. at 1174 (quoting

Fed. R. Civ. P. 23(e)(2)).

         We liberally view Mr. Cunningham’s pro se filings. See Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however,

“take on the responsibility of serving as the litigant’s attorney in constructing

arguments and searching the record.” Id. Moreover, “pro se parties [must] follow

the same rules of procedure that govern other litigants.” Id. (internal quotation marks

omitted).

         Mr. Cunningham first claims that during a hearing in November 2013 the

attorney for the class and the magistrate judge agreed to set up a trust fund for

payment of money awards to certain prisoners, yet the attorney improperly failed to

set it up.1 But he does not cite to any record evidence for this claim. See

Fed. R. App. P. 28(a)(8)(A) (stating appellant’s brief must contain, among other

things, citations to the “parts of the record on which the appellant relies”). And what

we do have in the record does not support the claim. The attorney for the class

discussed this matter during the fairness hearing, informing the court that “there was

         1
        To the extent Mr. Cunningham attempts to represent the interests of other
prisoners, a pro se litigant may not represent other pro se litigants in federal court.
See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000).
                                             4
a discussion of whether there was a way to divert or to set aside an attorney fee

award to create some kind of a compensation pool, . . . [but] the government declined

to consent to that compensation idea.” Aplee. Supp. App. Vol. 9, at 2125-26. It is

undisputed that monetary compensation for inmates was not included in the final

settlement agreement approved by the court.

      Mr. Cunningham also raises an argument based on his proposed pro se Third

Amended Complaint seeking money damages. The district court struck the Third

Amended Complaint because (1) it attempted to bring individual damages claims in

the class action, (2) Mr. Cunningham was represented by class counsel so the court

could not accept pro se filings, and (3) acceptance of an amended complaint would

supersede the prior operative class complaint. Mr. Cunningham filed a motion to

reconsider. He contends that the BOP’s failure to respond to the motion to

reconsider is a concession that the BOP violated his Eighth Amendment rights.

Contrary to his characterization of the proceedings, however, the BOP responded to

the motion to reconsider. And although the district court did not formally rule on the

motion, the court implicitly denied it by dismissing the case. See Fransen v. Conoco,

Inc., 64 F.3d 1481, 1489 n.6 (10th Cir. 1995) (district court implicitly denied

plaintiff’s claim by ruling on defendant’s summary-judgment motion).

      Mr. Cunningham next asserts that the settlement agreement should be voided

because BOP officials retaliated against him for refusing to agree to the settlement.

But he does not identify where he raised a retaliation claim in the district court and

he does not argue for the application of plain-error review on appeal. Therefore, the

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retaliation claim is waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1130-31 (10th Cir. 2011). Even though we do not consider his retaliation claim in

this appeal, we note that the settlement order does not foreclose Mr. Cunningham

from bringing a separate action for retaliation.

      Mr. Cunningham also asserts that he was denied his First Amendment right to

testify in opposition to the settlement at the fairness hearing. Again, he has not

shown where he raised this claim in the district court or argued for plain-error

review, so this claim is waived. See id. And we note that he was afforded adequate

notice and an opportunity to be heard. Mr. Cunningham filed pleadings stating his

objections. And the district court recognized the objection of some of the class

members that the settlement did not provide for money damages. See Rutter &

Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187 (10th Cir. 2002) (noting as to

objections to class-action settlement that “[t]he fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in a meaningful

manner” (internal quotation marks omitted)).

      Mr. Cunningham argues that an award of money damages was contemplated

by the operative complaint because the relief requested included “such other relief as

th[e] Court deems just and proper,” Aplee. Supp. App. Vol. 8, at 1870. Perhaps so.

But even if the complaint had explicitly sought money damages, that would not affect

the validity of the ultimate settlement. A settlement is not unfair simply because it

does not provide all relief originally sought.



                                            6
         Finally, Mr. Cunningham maintains that he is entitled to an award of attorney

fees for acting as the lead plaintiff and helping to put the case together. The fees

payable to the attorneys for the class were authorized under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 2412. But “attorney fees are not available for pro se

litigants under the EAJA.” Demarest v. Manspeaker, 948 F.2d 655, 655 (10th Cir.

1991).

   III.     Pending Motions

         Mr. Cunningham’s requests for appointment of counsel and an evidentiary

hearing in this appeal are denied, as are his requests “for production of document

transcribed” and an award of money damages. His application to proceed IFP is

granted; but he remains obligated to pay all filing and docketing fees.

   IV.      Conclusion

         The judgment is affirmed.


                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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