JABARI J. JOHNSON, Plaintiff - Appellant, v. REYNA; WARGO; KORIN, Defendants - Appellees.
No. 21-1371
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
January 11, 2023
PUBLISH
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CV-00459-PAB-MEH)
Kathrina Szymborski (Easha Anand, Roderick & Solange MacArthur Justice Center, San Francisco, California, David F. Oyer & Elizabeth A. Bixby on the briefs), of Roderick & Solange MacArthur Justice Center, Washington, D.C., for Plaintiff-Appellant.
Cole J. Woodward, Assistant Attorney General (Philip J. Weiser, Colorado Attorney General and Joshua G. Urqhuart, Assistant Attorney General, Colorado Department of Law, on the briefs), Denver, Colorado, for Defendant-Appellee.
Before TYMKOVICH, SEYMOUR, and PHILLIPS, Circuit Judges.
The Prison Litigation Reform Act (PLRA) requires a prisoner to show a physical injury to bring a civil action for mental or emotional injury suffered in custody.
But Johnson‘s allegations satisfy
BACKGROUND
I. Factual Background
Johnson, a state prisoner in Colorado, is a prolific pro se litigant. By his own count, he has brought over sixty civil suits against prison officials under the Eighth and Fourteenth Amendments. Except for those complaints that are still pending, all of Johnson‘s complaints have been dismissed on grounds that he failed to prosecute or failed to comply with court orders or procedural rules.
On May 3, 2018, prison staff escorted Johnson to the office of the prison case manager, Humphreys, to retrieve copies of Johnson‘s prior grievances.1 Humphreys questioned Johnson about his upcoming lawsuits. Johnson declined to speak about the lawsuits but instead asked for his earlier grievances so he could continue the grievance process. Humphreys became irate and ordered Johnson to leave if he wouldn‘t answer his questions. Johnson agreed to leave, and Humphreys ordered that Johnson “cuff up.” App. at 13. During this encounter, Johnson insisted he had done nothing wrong and posed no threat.
Moments later, three prison officers arrived to escort Johnson back to his cell: Sergeant Joaquin Reyna, Lieutenant Brett Corbin,2 and Wargo.3 Though Johnson was already handcuffed, the officers also shackled his legs. In the hallway, Johnson complained that the restraints were excessive and violated his constitutional rights. In response, Reyna “placed his foot on [Johnson‘s] untreated right foot.” Id. at 14. Johnson had suffered an earlier injury to his right foot, so Johnson pleaded with Reyna to remove his foot and claimed that Reyna was “knowingly inflicting pain.” Id. According to Johnson, Reyna refused to remove his foot and smiled “sadistic[ally]” at him. Id.
Once Johnson was both handcuffed and shackled, Reyna, Wargo, and Corbin escorted him back to his cell, pushing him to walk faster despite the shackles around his ankles. Johnson gingerly placed one foot on the stairs at a time to avoid any further pain. Suddenly, the officers slammed Johnson “on his untreated fractured jaw.” Id. Johnson told the officers he was in “excruciating pain” and needed immediate medical treatment. Id.
Rather than listening to Johnson‘s pleas, the three officers dragged Johnson fifteen to twenty feet down the hallway. Wargo
Johnson claims that Wargo and the other officers slammed him to retaliate against him for filing grievances. One of Johnson‘s fellow inmates, Darian Weaver, witnessed the officers’ rough handling of Johnson. Weaver corroborated Johnson‘s story to prison officials, confirming that Johnson hadn‘t resisted the officers’ escort or initiated the violent incident.
The incident exacerbated Johnson‘s preexisting injuries and caused him to need medical treatment. In February 2019, a prison doctor scheduled physical therapy for Johnson, presumably to heal his injured foot. And in June 2019, the chief prison dentist told Johnson he “need[ed] to visit a facial and oral surgeon regarding [his] misaligned[,] concaved jaw.” Id. at 16. Johnson also suffered major depression and anxiety because of the May 2018 incident.
II. Procedural Background
Johnson sued Reyna, Wargo, and Corbin under
Reyna and Corbin also argued that the Eleventh Amendment barred the court from exercising jurisdiction over Johnson‘s claims for money damages to the extent he sought “monetary damages from the State or its employees acting in their official capacities.” Id. at 42-44.
Johnson responded, insisting that he “did suffer further injury to [his] right foot and jaw.” Id. at 53. He claimed that a prison doctor had later ordered surgery for his jaw and foot and additional physical therapy to help him walk correctly.
A magistrate judge recommended granting Reyna and Corbin‘s motion to dismiss under both
Johnson timely objected to the magistrate judge‘s report and recommendation on Reyna and Corbin‘s motion to dismiss.
Two months after Reyna and Corbin‘s motion to dismiss, Wargo also moved to dismiss under
Using nearly identical language to the first report and recommendation, the magistrate judge recommended granting Wargo‘s motion to dismiss under
Johnson didn‘t object to the magistrate judge‘s recommendation to dismiss his claims against Wargo. Johnson v. Reyna (Johnson III), No. 20-cv-00459, 2021 WL 848755, at *1 (D. Colo. Mar. 4, 2021). So the district court accepted the magistrate judge‘s recommendations in full and dismissed Johnson‘s individual-capacity claim against Wargo with prejudice and his official-capacity claim against Wargo without prejudice. Id.
The district court also accepted the magistrate judge‘s recommendation to dismiss Johnson‘s official-capacity claims against Reyna and Corbin without prejudice because the Eleventh Amendment barred the court from exercising subject-matter jurisdiction. Johnson v. Reyna (Johnson IV), No. 20-cv-00459-PAB-MEH, 2021 WL 4305009, at *3-4 (D. Colo. Sept. 22, 2021). The court overruled Johnson‘s objections to the magistrate judge‘s report and recommendation on his individual-capacity claims against Reyna and Corbin, reasoning that Johnson had failed to allege a sufficient physical injury to satisfy the PLRA‘s physical-injury requirement. Id. at *4-5. The court also refused to grant Johnson leave to amend and dismissed his individual-capacity claims against Reyna and Corbin with prejudice. Id. at *5-6.
Johnson timely filed his appeal under the prisoner-mailbox rule. See
STANDARD OF REVIEW
We review de novo a district court‘s grant of a
DISCUSSION
Much of this appeal depends on the proper construction of Johnson‘s complaint. Johnson raises substantive arguments about the scope of the PLRA‘s physical-injury requirement (that both a de minimis injury and pain alone will satisfy
We conclude that Johnson has adequately pleaded a serious physical injury in his complaint that satisfies
But we still must address whether, on remand, Johnson can pursue his claims against all three officers. Because Johnson failed to timely object to the magistrate judge‘s report and recommendation on Wargo‘s motion to dismiss, and no exception to the firm-waiver rule applies, Johnson has waived his claim against Wargo. On remand, Johnson can pursue his claims only against Reyna and Corbin.
I. Construing Johnson‘s Complaint
A. Our Rule of Liberal Construction
We construe pro se plaintiffs’ pleadings liberally; this is a “well-settled principle” in our circuit. Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th Cir. 1990) (citing Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988)). If we “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,” we should do so. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In practicing leniency, we will often excuse pro se plaintiffs’ “failure to cite proper legal authority,” “confusion of various legal theories,” “poor syntax and sentence construction,” and “unfamiliarity with pleading requirements.” Id. We consistently construe pro se prisoners’ pleadings liberally even if they frequently file lawsuits in the federal courts. E.g., Smith v. Veterans Admin., 636 F.3d 1306, 1308, 1310 (10th Cir. 2011); Childs v. Miller, 713 F.3d 1262, 1264-65 (10th Cir. 2013); Kinnell v. Graves, 265 F.3d 1125, 1127 & n.1 (10th Cir. 2001).
The officers argue that because Johnson is a “seasoned and prolific litigant,” we should deny him the leeway that we would generally afford to pro se plaintiffs. Resp. Br. 14. But we decline to apply a more stringent standard to Johnson simply because he has filed dozens of lawsuits. We agree with Johnson‘s appellate counsel that “filing many lawsuits as an incarcerated pro se litigant is no substitute for years of law school, access to legal research databases, and the like.” Reply Br. 28. Nearly all of Johnson‘s previous complaints were later dismissed for failure to prosecute or procedural missteps. That Johnson knows how to file complaints doesn‘t mean that he knows how to litigate them like a licensed attorney. We will continue to construe all pro se plaintiffs’ pleadings liberally, even if they come from frequent filers like Johnson.
B. Our Liberal Construction of Johnson‘s Complaint
The district court construed Johnson‘s complaint as alleging only pain, without an
During the assault, Johnson told the officers they were causing him “excruciating pain.” App. at 14. And he immediately requested medical treatment as soon as they slammed him on his fractured jaw. He also alleged that he needed physical therapy and oral surgery a year after the May 2018 incident. And he described that the officers inflicted “pain and injury to [his] jaw and foot,” which “require[d] further treatment that [he] [had] not received from [May 3, 2018] to [the] current date.” Id. at 17 (emphases added). We read Johnson‘s complaint‘s allegations as stating that the officers’ conduct not only caused him excruciating pain but also exacerbated the injuries on his jaw and foot that required surgery and physical therapy. We also read Johnson‘s complaint as seeking damages for both physical injuries (i.e., his exacerbated jaw and foot injuries) and mental or emotional injuries (i.e., his anxiety and depression that resulted from the incident). The district court improperly construed Johnson‘s complaint by overlooking his plain-language allegations of pain and injury that required medical treatment.
The district court also suggested that Johnson didn‘t properly preserve a specific objection to the magistrate judge‘s report and recommendation to dismiss his claims against Reyna and Corbin. See Johnson IV, 2021 WL 4305009, at *5. We disagree. Johnson objected to the magistrate judge‘s finding that he didn‘t allege a sufficient physical injury by explaining that the defendants caused him ”further injury and pain to [his] jaw and foot.” App. at 66 (emphasis added). Again, the district court failed to liberally construe Johnson‘s pleadings. A plain reading of his objections to Reyna and Corbin‘s motion to dismiss reveals that he properly preserved his argument that they inflicted additional injury.
II. The PLRA‘s Physical-Injury Requirement
Next, we turn to whether Johnson‘s allegations, when properly construed, satisfy
On its face,
Courts that require more than a de minimis injury to satisfy
When we properly construe Johnson‘s complaint as alleging both intense physical pain and exacerbated injuries that required medical treatment, we conclude that Johnson has alleged a serious injury that satisfies
The parties urge us to decide whether a de minimis injury satisfies
Far from the minor ailments and transient aches that other circuits have found de minimis, Johnson alleged an intense, prolonged, exacerbated injury that still required medical treatment a year later. We hold that Johnson satisfied the physical-injury requirement of
We also must address whether Johnson can pursue his
The magistrate judge issued nearly identical reports and recommendations to dismiss Johnson‘s suits against Reyna, Wargo, and Corbin. Compare Johnson I, 2020 WL 11578162, with Johnson II, 2021 WL 852287. Johnson timely objected to the magistrate judge‘s first report and recommendation for his suit against Reyna and Corbin, but he didn‘t object to the magistrate judge‘s second report and recommendation for his suit against Wargo. Johnson III, 2021 WL 848755, at *1. We recognize a firm-waiver rule: “[T]he failure to make timely objection to the magistrate‘s findings or recommendations waives appellate review of both factual and legal questions.” Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). And we apply the firm-waiver rule to pro se litigants, “provided they were informed of the time period for objecting and the consequences of failing to object.”6 Wardell v. Duncan, 470 F.3d 954, 958 (10th Cir. 2006) (citing Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005)).
But we need not apply the firm-waiver rule “when the interests of justice so dictate.” Moore, 950 F.2d at 659 (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)). To determine whether this exception applies, we consider three factors: “[1] a pro se litigant‘s effort to comply, [2] the force and plausibility of the explanation for his failure to comply, and [3] the importance of the issues raised.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (alterations in original) (quoting Morales-Fernandez, 418 F.3d at 1120). Our interests-of-justice exception “is similar to reviewing for plain error.”7 Morales-Fernandez, 418 F.3d at 1120.
Johnson argues that he tried to comply with the timely-objection rule by objecting to the first report and recommendation for Reyna and Corbin‘s motion to dismiss, which was nearly identical to the later report and recommendation for Wargo‘s motion to dismiss. And he explains his failure to comply by stating that he didn‘t know “he was required to file two identical sets of objections.” Opening Br. 38. On the other hand, the officers urge us to reject Johnson‘s explanation and weigh the first two factors against him because he is a frequent filer.
In Wirsching, the plaintiff explained that he couldn‘t timely object because he never received the magistrate judge‘s report and recommendation. Id. We credited his explanation because his failure to timely object was inconsistent with his tenacity in the lawsuit. Id. Similarly, in Casanova we found that the first two interests-of-justice factors weighed in the plaintiff‘s favor when he didn‘t receive the magistrate judge‘s report, when he notified the court about a mail-delivery delay in the prison, when he followed up with the district-court clerk‘s office about his case, and when medical procedures also prevented him from timely objecting. Casanova, 595 F.3d at 1124. Unlike the plaintiffs in Wirsching and Casanova, not only did Johnson receive the report and recommendation for Wargo‘s motion to dismiss, but he also requested and received a one-month extension in which to object. Johnson III, 2021 WL 848755, at *1. Johnson‘s request for an extension reflects his understanding that he needed to object to the second report and recommendation for Wargo‘s motion to dismiss, so the first two interests-of-justice factors weigh against him.
The third factor—the importance of the issues raised—also weighs against Johnson. In Casanova, we found that the third factor weighed in the plaintiff‘s favor when his injuries required immediate hospitalization, and prison officials defied his doctor‘s orders. Casanova, 595 F.3d at 1124. Though Johnson alleges that Wargo caused him serious injuries that required physical therapy and surgery almost a year later, he doesn‘t allege injuries that required immediate hospitalization. And on remand, Johnson can still pursue his Eighth Amendment claims against Reyna and Corbin, both of whom Johnson alleges contributed significantly to exacerbating his physical, mental, and emotional injuries.
We hold that the firm-waiver rule bars Johnson‘s appeal against Wargo, and no exception applies.
CONCLUSION
We affirm the district court‘s dismissal of Johnson‘s