Dunn v. NENMDF, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
WOODROW DUNN, JR.,

Plaintiff - Appellant,

v.

NENMDF; GEO GROUP, INC.,

Defendants - Appellees.

No. 20-2077
(D.C. No. 1:19-CV-00881-KWR-KRS)
(D. N.M.)

_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Mr. Woodrow Dunn, Jr. is incarcerated at a private prison in New
Mexico. He sued the facility and its owner, alleging that the owner is
trying to kill him by forcing a fellow prisoner to apply shock waves to Mr.
Dunn’s brain. Because Mr. Dunn is pro se, the district court liberally

*
We conclude that oral argument would not materially help us in
deciding the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
We have thus decided the appeal based on the record and the parties’
briefs.

Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate under Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).
FILED
United States Court of Appeals
Tenth Circuit

August 31, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-2077 Document: 010110399093 Date Filed: 08/31/2020 Page: 1

2

construed the allegations as a cause of action under 42 U.S.C. § 1983. With
this construction, the court sua sponte dismissed the complaint for failure
to state a claim and frivolousness. We affirm.
In ordering dismissal for failure to state a claim, the court identified
three defects in the complaint:
1. One of the defendants, the detention facility itself, is not a
suable entity under § 1983.

2. The complaint doesn’t allege any personal involvement by a
particular governmental official.

3. The second defendant, the owner of the detention facility,
cannot incur vicarious liability under § 1983.

The district court also dismissed the complaint as frivolous,
concluding that the allegations were based on other prisoners’ allegations
that were either “delusional or intentionally fabricated.” D. Ct. Doc. No.
23 at 9.
On appeal, Mr. Dunn repeats the allegations and arguments made in
district court, attaching materials previously filed in district court and
asking us to apply the Eighth Amendment. But Mr. Dunn does not explain
what he believes is wrong with the district court’s reasoning. The failure to
provide such an explanation is fatal on appeal. See Nixon v. City & Cty. of
Denver, 784 F.3d 1364, 1366, 1368–70 (10th Cir. 2015) (stating that the
appellant bears the burden to explain what was wrong with the district
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court’s reasoning).
1
We thus affirm the dismissal for failure to state a valid
claim and frivolousness.
Entered for the Court

Robert E. Bacharach
Circuit Judge

1
Mr. Dunn also requests leave to proceed in forma pauperis. We grant
this request. Though we grant the request, we remind Mr. Dunn of his
obligation to continue making partial payments toward the appellate filing
fee until the fee is paid in full. See 28 U.S.C. § 1915(b)(1).

Appellate Case: 20-2077 Document: 010110399093 Date Filed: 08/31/2020 Page: 3