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

                            FOR THE TENTH CIRCUIT                  January 9, 2019
                        _________________________________
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
KENNETH COUNCE,

      Plaintiff - Appellant,

v.                                                      No. 18-3056
                                            (D.C. No. 5:13-CV-03199-JTM-KGS)
RYAN WOLTING, Technical Kansas                            (D. Kan.)
State Trooper, Kansas Highway Patrol;
KANSAS STATE HIGHWAY PATROL;
TRACY PLOUTZ, Ellsworth County
Sheriff; GREG ARNOLD, Trooper,
Kansas Highway Patrol; DAVID
CHAMBERLIN, Ellsworth County Deputy
Sheriff; JOHN DOE, Civilian with beard;
JOHN DOE, Bearded Civilian’s Friend;
JOHN DOE, Deputy Sheriff for Ellsworth
County; JOHN/JANE DOES, Kansas State
Highway Patrol Supervisors and Watch
Commander(s); DARIAN P.
DERNOVISH, Legal Counsel & Records
Custodian, Kansas Highway Patrol; ERIC
D. SAUER, Captain, N & T Commander,
Kansas Highway Patrol; THERESA L.
STAUDINGER, Attorney; MARK A.
BRUCE, Major, Interim Superintendent,
Kansas Highway Patrol; KIRK E.
SIMONE, Asset Forfeiture Coordinator,
Kansas Highway Patrol; CRISTINA D.
TROIANI, Attorney for Sean O’Neil, Chief
of Administrative Appeals,

      Defendants - Appellees,

and

JOE SHEPACK, ELLSWORTH
COUNTY, KANSAS,
          Defendants.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
                 _________________________________

      Kenneth Counce filed this lawsuit against multiple public officials and private

individuals under 42 U.S.C. § 1983. The district court dismissed some of his claims

under Federal Rule of Civil Procedure 12(b)(6) and granted summary judgment on

other claims based on qualified immunity. Counce now appeals. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                 I.     Background

      This civil rights action stems from a traffic stop and arrest on October 22,

2013. Kansas Highway Patrol (KHP) troopers pulled Counce over on I-70 for routine

traffic infractions, then proceeded to a rest stop at his request. Counce appeared

nervous, so one of the troopers—Defendant Ryan Wolting—asked him to step

outside of his vehicle. A physical altercation took place, with two bystanders coming

to the trooper’s aid and the trooper ultimately subduing Counce with a Taser. The



      *
        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.
                                           2
initial movements that triggered the altercation are preserved on “dash cam” video

that is part of the record, though the remainder of the scuffle is captured only through

audio. Other dash cam recordings document emergency medical personnel

examining and treating Counce at the scene.

       Counce was arrested and transported to jail in Ellsworth County, Kansas,

where he remained for approximately forty days and received periodic medical

treatment for nausea, cold extremities, a potential head injury, and shoulder and back

pain. His trip to jail was also recorded on dash cam video. Meanwhile, Randy’s

Body Shop towed and impounded his vehicle, and troopers confiscated

approximately $8,200 in cash.

       On November 12, 2013, Counce initiated this pro se action under § 1983. He

asserted claims for excessive force incident to his arrest, wrongful confiscation of his

currency, denial of access to medical care, and denial of legal postage.1 Because he

was incarcerated at the time, the district court screened his complaint as required by

the Prison Litigation Reform Act, 28 U.S.C. § 1915A. It instructed Counce to amend

his complaint to comply with Federal Rule of Civil Procedure 8(a).

       The operative complaint was filed on October 22, 2015. See R., Vol. I at

201-59. Counce asserted sixteen claims2 against a long list of Defendants, including


       1
         Notably, Counce filed a parallel state action asserting the same claims, which
was dismissed as “a frivolous lawsuit based on false allegations”; however, given the
brevity of the state court’s ruling, the district court declined to dismiss this lawsuit on
res judicata grounds. R., Vol. I at 102 (internal quotation marks omitted).
       2
           Though Counce asserts seventeen claims, he inadvertently skipped Count IX.
                                            3
KHP troopers, the former Ellsworth County sheriff and his deputy, jail officials, the

bystanders, and even the private attorney who tried to collect a debt owed to Randy’s

Body Shop (Theresa Staudinger). In addition to the original claims listed above,

Counce added claims for denial of due process and equal protection, a violation of

the Freedom of Information Act (FOIA), and interference with his right to petition

the government. The district court whittled down the claims and defendants per

§ 1915A(b), see R., Vol. I at 267-75.

      The district court disposed of the remaining claims in stages. It granted

Staudinger’s motion to dismiss under Rule 12(b)(6), finding that Counce failed to

state a claim against her because she was not a state actor as required by § 1983. See

R., Vol. I at 377-80. Later, it found that the public officials sued in their individual

capacities were entitled to qualified immunity and granted summary judgment in

their favor. See R., Vol. III at 274-95. On March 2, 2018, the district court entered

final judgment against Counce. This timely appeal followed.

        Counce was a prolific filer, and the district court issued dozens of orders over

four-and-a-half years of litigation. The appellate issues adequately presented herein

implicate the following rulings: the district court’s refusal to appoint counsel for

Counce (Issue 1); its Rule 12(b)(6) dismissal of the claim against Staudinger (Issue

10); its summary judgment dismissal of the claims against the public officials (Issues

5, 6, 10); and its discovery rulings, particularly those relating to the production and

alleged modification of dash cam videos (Issues 2, 8, 9). We address each in turn.



                                            4
                                    II.    Analysis

      Because Counce is proceeding pro se, “we construe his pleadings liberally.”

Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). We make some

allowances for deficiencies, such as unfamiliarity with pleading requirements, failure

to cite appropriate legal authority, and confusion of legal theories. See Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we “cannot

take on the responsibility of serving as [his] attorney in constructing arguments and

searching the record.” Id.

      As a threshold matter, we address the scope of this appeal. The notice of

appeal states that Counce appeals “from the final judgment granting the Defendants

qualified immunity entered in this action on the 2nd day of March, 2018.” R., Vol.

III at 297. Based on this language, the appellees ask us to limit our review to the

claims resolved in the summary judgment order issued on that same date—namely,

the claims against them for excessive force and denial of medical care. We agree the

language in the notice of appeal creates an ambiguity about whether Counce only

intended to appeal from the grant of qualified immunity. But we construe the

designation requirement in Federal Rule of Civil Procedure 3(c)(1)(B) liberally, even

though it is jurisdictional. See Williams v. Akers, 837 F.3d 1075, 1078 (10th Cir.

2016); see also Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988) (stating

that “the requirements of the rules of procedure should be liberally construed and . . .

mere technicalities should not stand in the way of consideration of a case on its

merits” (internal quotation marks omitted)).

                                           5
      Furthermore, “a notice of appeal which names the final judgment is sufficient

to support review of all earlier orders that merge in the final judgment.” McBride v.

CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002); accord Cole v.

Ruidoso Mun. Sch., 43 F.3d 1373, 1383 n.7 (10th Cir. 1994) (articulating “the general

rule that appeal from a final judgment supports review of all earlier interlocutory

orders” (internal quotation marks omitted)). Under this precedent, our jurisdiction

extends to Counce’s “attack [of] any nonfinal order or ruling leading up to” the final

judgment. McBride, 281 F.3d at 1104 (internal quotation marks omitted).

      A. Denial of Motion for Appointment of Counsel

      Counce first argues that the district court erred in denying his requests for

appointment of counsel. He contends that he could not prosecute this case without

assistance due to the severity of the injuries he received during the traffic stop and

his resulting diminished capacity. He further contends that this case was sufficiently

complex to warrant appointment of counsel, especially given his status as a prisoner

and his limited legal knowledge. The district court disagreed. It found Counce to be

literate, characterized his pleadings as “coherent,” and noted that “it does not appear

his injuries have affected his abilities to present the facts and his claims.” R., Vol. I

at 264. It also implicitly reasoned that Counce was able to bring a similar lawsuit in

state court without legal assistance. Id. at 104-05.

      We review the district court’s refusal to appoint counsel for an abuse of

discretion. See Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006). “It is not

enough that having counsel appointed would have assisted [him] in presenting his

                                            6
strongest possible case, as the same could be said in any case.” Id. (internal

quotation marks and alterations omitted). “Only in those extreme cases where the

lack of counsel results in fundamental unfairness will the district court’s decision be

overturned.” Id. (internal quotation marks omitted).

         Counce summarily states that the denial of counsel resulted in “fundamental

unfairness and rudimentary unjust outcomes.” See Aplt. Opening Br. at 3.A.1

(internal quotation marks omitted). But his conclusory statement is not enough to

satisfy this high bar. We agree with the district court’s treatment of Counce’s claims,

as set forth below, and find no abuse of discretion or fundamental unfairness.

         B. Claim Against Private Attorney

         Counce also challenges the district court’s dismissal of certain individual

claims, including its Rule 12(b)(6) dismissal of his claim against Staudinger, the

private attorney for Randy’s Body Shop who contacted him to collect the debt owed

for towing and storage fees. Counce alleged that Staudinger’s actions violated his

right to be free from unreasonable searches and seizures and deprived him of his

property without due process and that she conspired with the KHP to steal his money.

See generally R., Vol. I at 255-58 (Claim XVII). Staudinger moved to dismiss the

claim.

         “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must

make plausible allegations that would support the conclusion that he is entitled to relief.

                                               7
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation

marks omitted). Applying this standard, the district court held that Counce failed to

state a § 1983 claim against Staudinger because her status as a member of the Kansas

Bar does not make her a state actor. See R., Vol. I at 379-80 (citing Polk Cty. v.

Dodson, 454 U.S. 312, 318 (1981)). In addition, it found the allegations in the

complaint to be inadequate to establish that Staudinger acted jointly with the state to

seize property, as required to clothe her with state authority or to allege a conspiracy

claim under § 1983. Id. at 379-80 (citing Tonkovich v. Kan. Bd. of Regents, 159 F.3d

504, 533 (10th Cir. 1998), and Gallagher v. “Neil Young Freedom Concert,” 49 F.3d

1442, 1455 (10th Cir. 1995)).

      We review the district court’s order de novo, see SEC v. Shields, 744 F.3d 633,

640 (10th Cir. 2014), and find its reasoning sound. “[T]o hold a private individual

liable under § 1983, it must be shown that the private person was jointly engaged

with state officials in the challenged action, or has obtained significant aid from state

officials, or that the private individual’s conduct is in some other way chargeable to

the State.” Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (internal quotation

marks omitted). The allegations must evidence “a specific goal to violate the

plaintiff’s constitutional rights by engaging in a particular course of action.”

Gallagher, 49 F.3d at 1455. Counce’s complaint proffers only vague and conclusory

allegations to this effect—for instance, that the KHP’s asset forfeiture coordinator

“had obviously contacted” Staudinger about the status of Counce’s confiscated cash



                                            8
so she could “write Counce and threaten and attempt to extort” money from him. R.,

Vol. I at 258. We affirm the dismissal of the claim against Staudinger.

      C. Claims Against Public Officials

      Counce also challenges the district court’s grant of summary judgment to the

public officials on qualified immunity grounds for his claims of excessive force and

deliberate indifference to his serious medical needs. Embedded within this challenge

are complaints about the way the district court handled discovery matters relating to

the dash cam videos that recorded his traffic stop. Here, too, we agree with the

district court’s approach.

      “Qualified immunity protects public officials from individual liability in a

§ 1983 action unless the officials violated clearly established constitutional rights of

which a reasonable person would have known.” Mick v. Brewer, 76 F.3d 1127, 1134

(10th Cir. 1996) (internal quotation marks and alterations omitted). When a

defendant pleads a qualified immunity defense, the “plaintiff initially bears a heavy

two-part burden.” Id. First, he must show “that the defendant’s actions violated a

constitutional or statutory right.” Id. (internal quotation marks omitted). And

second, he must show “that the right allegedly violated was clearly established at the

time of the conduct at issue.” Id. (internal quotation marks and alterations omitted).

      After delineating the uncontroverted facts and resolving any controverted facts

in Counce’s favor, the district court conducted a thoughtful, detailed analysis as to

why each individual state actor was entitled to qualified immunity. Focusing on the

first prong, the district court found that the KHP troopers did not violate Counce’s

                                            9
constitutional rights. R., Vol. III at 295. The troopers did not use excessive force

under the circumstances (even by using a Taser), did not fail to intervene to protect

him from the bystanders, and did not interfere with his emergency medical treatment.

Id. at 281-91. Furthermore, the handcuffs did not cause an actual injury, and Counce

did not show that a reasonable jury could find the troopers were deliberately

indifferent to his medical needs and emotional distress. Id. at 291-92. In reaching

these conclusions, the district court frequently referenced the dash cam evidence.

      Likewise, the district court found that the officials from the sheriff’s office

were not indifferent to Counce’s medical needs during the booking process or his

incarceration at the county jail. Id. at 292-95. To support this conclusion, it

highlighted Counce’s own failure to answer routine medical questions on the booking

form. Id. at 293. It also summarized the medical treatment he received from a

certified physician’s assistant, former defendant Shawn McGowan, in response to his

six medical requests. Id. at 277-79, 293-94.

      We review de novo the district court’s qualified immunity determination at the

summary judgment stage. Lee v. Tucker, 904 F.3d 1145, 1149 (10th Cir. 2018). We

agree with the district court’s reasoning and affirm its summary judgment ruling.

      Turning to the related discovery issues, it is clear from the record that Counce

conducted ample discovery during this protracted litigation. He seems to believe that

additional or unmodified dash cam videos exist, which have not been produced;

however, the district court unequivocally determined that “plaintiff has been

provided with all relevant discovery that is in the possession of defendants,” R., Vol.

                                           10
III at 105. In any event, discovery issues are “entrusted to the sound discretion of the

trial courts.” Punt v. Kelly Servs., 862 F.3d 1040, 1047 (10th Cir. 2017) (internal

quotation marks omitted). Moreover, to the extent the district court did limit

discovery to some degree due to the state actors’ assertion of qualified immunity, that

practice is consistent with well-established guidelines. The Supreme Court has

emphasized that qualified immunity affords broad protection to public officials,

giving them “a right, not merely to avoid ‘standing trial,’ but also to avoid the

burdens of ‘such pretrial matters as discovery . . . , as ‘[i]nquiries of this kind can be

peculiarly disruptive of effective government.’” Behrens v. Pelletier, 516 U.S. 299,

308 (1996) (alterations in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985), and Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)).

       D. Remaining Issues on Appeal

       Counce raises a few other issues as well. In Issue 3, he summarily challenges

the dismissal of the excessive force claims against the two bystanders who helped to

subdue him, which he now recharacterizes as failure-to-intervene claims (presumably

to skirt the deficiency that the bystanders themselves are not state actors). In Issue 4,

he contests the dismissal of his claim for denial of access to the courts, without

explaining how he states a viable claim or refuting the district court’s finding that he

was not prejudiced by the jail officials’ purported actions. And in Issue 7, he

continues his quest to use FOIA as a supplement to discovery, posing the question,

“May a requester involved in ongoing litigation use as a collateral method of



                                            11
discovery the FOIA?” Aplt. Opening Br. at 3-O. He then asks the Court to reverse

the Executive Branch’s dismissal of his FOIA request. Aplt. Reply Br. at 12.

       The briefing on these issues is wholly inadequate under Federal Rule of

Appellate Procedure 28(a)(8), so we decline to consider them. See Bronson v.

Swensen, 500 F.3d 1099, 1104-05 (10th Cir. 2007) (“[W]e routinely have declined to

consider arguments that are not raised, or are inadequately presented, in an

appellant’s opening brief. . . . [C]ursory statements, without supporting analysis and

case law, fail to constitute the kind of briefing that is necessary to avoid application

of the forfeiture doctrine.”).

                                     III.   Conclusion

       We affirm the district court’s dismissal of Counce’s claims.

       His “Motion Requesting the Tenth Circuit Court of Appeals to Take Judicial

Notice of Modifications to KHP Defendants’ Dashcam Video Recordings Discovered

on Troopers Wolting, Evinger, and Arnolds’ Dashcams in Exhibits F, G, and H” is

denied as moot. That motion asks the Court to order Defendants to turn over

additional dashcam recordings and to obtain information about why the dashcam

recordings that have been produced were modified. But even if additional or




                                            12
unmodified dash cam videos did exist, Counce fails to show their existence would

affect our analysis.


                                         Entered for the Court


                                         Allison H. Eid
                                         Circuit Judge




                                        13
