Kevin Tamar Davis, a state prisoner in Kansas, filed a civil rights lawsuit against several correctional and healthcare officials. He alleged violations of the Eighth Amendment regarding his dental care and medical needs, as well as due process and antitrust violations related to the seizure of his personal property. Specifically, Davis claimed officials were deliberately indifferent to his need for a root canal rather than tooth extraction, and for a wrist splint and medical shoes. The district court screened the complaint under 28 U.S.C. § 1915A and dismissed all counts, finding that Davis failed to plausibly allege deliberate indifference and that he had no private right of action for the property seizure claims. Davis appealed, but his appellate briefing was procedurally deficient.
The Tenth Circuit addressed the appeal on procedural grounds rather than the merits of the Eighth Amendment claims. The court explained that while pro se litigants are entitled to liberal construction of their papers, they must still follow the Federal Rules of Appellate Procedure. Rule 28 requires an opening brief to contain the appellant's contentions and reasons with citations to the record and authorities. Davis failed to do this; his opening brief merely incorporated his district court filings by reference and reserved his actual arguments for his reply brief. The court cited precedent stating that incorporation by reference is not acceptable appellate procedure and that issues raised for the first time in a reply brief are generally not reviewed. Because Davis did not adequately present his arguments in the opening brief, the court determined he had failed to abide by the rules of appellate procedure and dismissed the appeal. The court also addressed his motion to proceed in forma pauperis, granting it because the record showed the existence of a reasoned, nonfrivolous argument, even though the appeal was dismissed for procedural reasons.
The appeal is dismissed, leaving the district court's dismissal of Davis's civil rights claims in place. The underlying claims remain dismissed without prejudice, meaning Davis could potentially file an amended complaint if he can state a valid claim, though he must navigate the PLRA strike system. The dismissal of the complaint counts as a second strike under the Prison Litigation Reform Act. Davis has already acquired one strike, so a third strike will prevent him from filing future civil actions or appeals in federal court without prepaying fees unless he is under imminent danger of serious physical injury. The court also reminded him that the IFP grant does not relieve him of the obligation to pay the full filing fee.
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