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

                             FOR THE TENTH CIRCUIT                             July 6, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 ZABRIEL EVANS,

       Plaintiff - Appellant,
                                                             No. 19-3255
 v.                                             (D.C. No. 5:16-CV-03095-DDC-ADM)
                                                              (D. Kan.)
 JAMES HEIMGARTNER; JOHNNIE
 CAWTHORN, IV; CODY AUSTIN;
 ROBERT WALLACE; HEATHER
 GRIFFITH,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges. **
                  _________________________________

      Plaintiff-Appellant Zabriel Evans, an inmate appearing pro se, appeals from

the district court’s take-nothing judgment and dismissal of his civil rights action with

prejudice. Mr. Evans filed the underlying complaint against prison officials

regarding events occurring on March 1 and 5, 2016 while he was incarcerated at El

Dorado Correctional Facility. On both dates, Evans reported medical complaints. In


      *
         This order and judgment is not binding precedent, except under the doctrines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.
       **
          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.
attempting to conduct the medical assessment, correctional officers placed Mr. Evans

in restraints. Mr. Evans apparently resisted and correctional officers used pepper

spray. Mr. Evans was transferred to Hutchinson Correctional Facility in 2017.

      Regarding El Dorado personnel, Mr. Evans claimed excessive force and

deliberate indifference to medical needs. He sought injunctive relief against the

warden. The district court ordered a Martinez report. Defendants moved to dismiss

the complaint for failure to state a claim. The district court granted Defendants’

motion to dismiss on Mr. Evans’ excessive force claim concerning wrist injuries and

on his medical care claim. Evans v. Heimgartner, 2018 WL 3055843 at *10 (D. Kan.

June 20, 2018). The district court also dismissed the claim for injunctive relief as

moot because Mr. Evans was no longer incarcerated at El Dorado Correctional

Facility. Id. The court denied Defendants’ motion as it applied to Mr. Evans’

excessive force claim regarding the use of pepper spray.

      Both Mr. Evans and Defendants moved for summary judgment on the pepper

spray claim. The district court held that that the correctional officers were entitled to

qualified immunity based on the lack of a constitutional violation and lack of clearly

established law. Evans v. Cawthorn, 2019 WL 5787952, at *6–*9 (D. Kan. Nov. 6,

2019). The district court denied Mr. Evans’s late requests for discovery.

      Though Mr. Evans’s pleadings on appeal are difficult to interpret, we have

reviewed the district court’s decisions on qualified immunity and failure to state a

claim de novo. See McInerney v. King, 791 F.3d 1224, 1227 (10th Cir. 2015)

(qualified immunity); Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013)

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(dismissal for failure to state a claim). We find no error in the district court’s

decision. Nor did the district court err in concluding that injunctive relief was moot.

The district court did not abuse its discretion in declining Mr. Evans’s discovery

request.

      AFFIRMED. We DENY IFP and remind Mr. Evans that he is responsible for

full payment of the filing fee.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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