Payton v. Kelly, et al.

FILED
United States Court of Appeals
Tenth Circuit
October 4, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
WALTER ALMON PAYTON, also
known as Walter Peyton, Inc.,
Plaintiff - Appellant, No. 21-3088
v. (D.C. No. 5:20-CV-03257-SAC)
LAURA KELLY, GOVERNOR, in her
official professional and non-professional
individual capacities; DEREK SCHMIDT,
Kansas Attorney General, in his official
professional and non-professional
individual capacities; HUTCHINSON
CORRECTIONAL FACILITY, in its
official professional and non-professional
capacities; JEFF ZMUDA, Secretary of
Corrections, in his official professional
and non-professional individual
capacities; HUTCHINSON
CORRECTIONAL FACILITY, Mailroom,
in its official professional and non-
professional capacities; NATHANAEL S.
TIMM, Mailroom Clerk/Officer,
Hutchinson Correctional Facility, in his
official professional and non-professional
individual capacities; PATTI KEEN,
Senior Administrative Assistant and
Mailroom Supervisor, Hutchinson
Correctional Facility, in her official
professional and non-professional
individual capacities; DAN SCHNURR,
Warden, Hutchinson Correctional
Facility, in his official professional and
non-professional individual capacities;
(D. Kan.)
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MISTI D. KROEKER, Administrative
Assistant, Hutchinson Correctional
Facility East Unit and South Unit, in her
official professional and non-professional
individual capacities; CHARLES G.
PARKS, East Unit Manager of the East
Unit-Unit Teams, Hutchinson
Correctional Facility, in his official
professional and non-professional
capacities; TREVA KOOB, East Unit
Supervisor over East Unit-Unit Teams,
Hutchinson Correctional Facility, in her
official professional and non-professional
individual capacities; ELIZABETH
ALLAN, East Unit Team, Hutchinson
Correctional Facility, in her official
professional and non-professional
individual capacities; CHERYL
SCHLICKEISER, East Unit Team,
Hutchinson Correctional Facility, in her
official professional and non-professional
capacities, also known as Cheryl L.
Schlicker; ALEC R. WILSON, Sergeant,
Hutchinson Correctional Facility, in his
official professional and non-professional
capacities; AMANDA STONE, Former
Corporal/Current Administrative
Assistant, Hutchinson Correctional
Facility, in her official professional and
non-professional individual capacities; D.
CLAY VANHOOSE, Major, Hutchinson
Correctional Facility, in his official
professional and non-professional
individual capacities; BRANDON G.
RUIZ, Unit Team Manager, Hutchinson
Correctional Facility, in his official
professional and non-professional
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individual capacities; JESSICA L.
BROCK, Unit Team, Hutchinson
Correctional Facility, in her official
professional and non-professional
individual capacities; SCOTT L.
HAMBRICK, III, Unit Team, Hutchinson
Correctional Facility, in his official
professional and non-professional
individual capacities; JEFFREY N.
PETTIJOHN, Unit Team Supervisor,
Hutchinson Correctional Facility, in his
official professional and non-professional
individual capacities; SEGREGATION
REVIEW BOARD, All
Unknown/Unnamed Members, in their
official professional and non-professional
individual capacities; WILLIAM
SEYMOUR, JR., East Unit Team,
Hutchinson Correctional Facility, East
Unit Manager of the East Unit Unit
Teams, Hutchinson Correctional Facility,
in his official professional and non-
professional individual capacities;
NATHAN T. RUSH, Unit Team,
Hutchinson Correctional Facility, East
Unit Manager of the East Unit Unit
Teams, Hutchinson Correctional Facility,
in his official professional and non-
professional individual capacities; JON
D. GRAVES, Facility Attorney at Law,
Hutchinson Correctional Facility, East
Unit Manager of the East Unit Unit
Teams, Hutchinson Correctional Facility,
in his official professional and non-
professional individual capacities;
JORDAN C. BELL, Segregation Unit
Team Manager, Hutchinson Correctional
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Facility, East Unit Manager of the East
Unit Unit Teams, Hutchinson
Correctional Facility, in his official
professional and non-professional
individual capacities,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before BACHARACH, MURPHY, and CARSON, 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.
Proceeding pro se, Kansas state prisoner Walter Payton appeals the district
court’s dismissal of the civil rights complaint he brought pursuant to 42 U.S.C.
§ 1983. Payton’s complaint contained multiple claims based on alleged incidents
that occurred during his confinement at the Hutchinson Correctional Facility.
Specifically, Payton alleged defendants (1) lost a parcel mailed to him by his
*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.
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brother, (2) violated internal prison policies and procedures, and (3) took
disciplinary action against him in retaliation for complaints and grievances he
filed.
In a detailed Memorandum Order and Order to Show Cause, the district
court instructed Payton to show cause why his claims related to the lost parcel
should not be dismissed as time barred and why the claims, alternatively, should
not be dismissed for failure to state a claim. The court also ordered Payton to
show cause why his remaining claims should not be dismissed for failure to state
a claim. The district court further gave Payton the opportunity to file an amended
complaint curing the defects in his original complaint. The court clearly detailed
those defects and instructed Payton his amended complaint should raise only
properly joined claims and defendants, allege sufficient facts to state claims for
federal constitutional violations, and allege sufficient facts to show personal
participation by each named defendant.
Before filing his amended complaint, Payton filed a motion to disqualify
the district court judge. The district judge denied the motion in an order dated
December 14, 2020. In a second order dated April 21, 2021, the district court
dismissed Payton’s amended complaint for failure to state a claim, concluding
Payton failed to cure the deficiencies identified in the Order to Show Cause.
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Payton raises two issues in his appellate brief.1 He first challenges the
denial of his motion to disqualify the district court judge. We “review a district
court’s denial of a motion to recuse or disqualify a judge for abuse of discretion.”
Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1308 (10th Cir. 2015).
Payton’s motion to disqualify was brought pursuant to 28 U.S.C. § 144, which
concerns “personal bias or prejudice either against [the moving party] or in favor
of any adverse party.” He alleged in the motion that the district court judge
“lied” and “changed the facts” when he misinterpreted a factual allegation in
Payton’s original complaint.2
When proceeding under 28 U.S.C. § 144, the movant must file an affidavit
stating “the facts and the reasons for the belief that bias or prejudice exists.”
Payton filed an affidavit but, as the district court correctly ruled, it did not
contain the required information. In his appellate brief, Payton alleges for the
first time that the district court judge “seems to have a dislike for him, and is
always making every attempt to respond for any named defendant(s) in any
1Although Payton clearly identifies only two issues in his appellate brief, he
also appears to assert the district court erred by dismissing his claims as time
barred. The problem with any such argument, is that the district court—while
noting the claims related to the misplaced parcel were likely time
barred—dismissed all Payton’s claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim.
2It is not surprising the district court misinterpreted the factual allegation.
The sentence crafted by Payton is ambiguous and contains multiple grammatical
errors.
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complaint that [he] files in the U.S. District Court and that comes before [the
judge] without attempting to have those named defendant(s) respond to the
alleged allegations against them.” Because federal district courts are required by
statute to screen civil rights complaints like the instant complaint filed by Payton,
Payton’s appellate argument does not support his obligation to show bias or
prejudice on the part of the district court judge. 28 U.S.C. § 1915A (requiring
district court to screen “a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental
entity”). Having reviewed Payton’s motion, affidavit, and appellate brief, as well
as the district court’s order denying the motion, we conclude the district court did
not abuse its discretion in denying the motion to disqualify.
In his second appellate argument, Payton does not directly address the
dismissal of his claims for failure to state a claim. He, instead, attacks the ruling
indirectly by asserting the district court erred by failing to order the preparation
of a Martinez report. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
According to Payton, the factual bases of his claims would be readily apparent if
a Martinez report had been completed. There was no error in the district court’s
failure to order a Martinez report. Our “precedent permitting the use of Martinez
reports from prison authorities does not somehow create a procedural entitlement
on behalf of prisoners seeking to avoid dismissal of deficient pleadings under
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Rule 12(b)(6).” Christensen v. Big Horn Cty. Bd. of Cty. Comm’rs, 374 F. App’x
821, 825 (10th Cir. 2010) (unpublished disposition).
We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th
Cir. 1999). After considering Payton’s appellate brief; the district court’s well-
reasoned order dated April 21, 2021; and the entire appellate record, we agree
that Payton has not stated a claim upon which relief can be granted. We,
therefore, affirm the dismissal of Payton’s complaint for substantially the reasons
stated in the district court’s order.3
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
3Because Payton has failed to raise any nonfrivolous argument on appeal,
his motion to proceed in forma pauperis is denied and he is directed to pay the
full appellate filing fee forthwith. Further, in its order, the district court informed
Payton that he has now accumulated three strikes under the Prison Litigation
Reform Act. See 28 U.S.C. § 1915(g); see also Payton v. Ballinger, 831 F. App’x
898, 902 (10th Cir. 2020) (unpublished disposition). Accordingly, he may not
bring a new civil action in federal court without first paying the filing fee in full
unless he is “under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g).
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