## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 17 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALFRED R. CESSPOOCH, SR., Plaintiff-Appellant,

v. FEDERAL BUREAU OF PRISONS; JOEL KNOWLES, Warden and in individual capacity; JACK B. DAVIS, Associate Warden and in individual capacity; THOMAS C. PETERSON, Associate Warden and in individual capacity; CHARLES ROWE, Lieutenant and in individual capacity; ROBERT LIMA, Lieutenant and in individual capacity; DAVID ARMSTRONG, Correctional Officer; ANTHONY F. DIMARZO, Correctional Officer; JAKE M. GEIGER, Correctional Officer; CHARLOTTE R. GUTIERREZ, Correctional Officer; PAULA G. PRICE, Correctional Officer; WESLEY A. PUMMILL, Correctional Officer; OFFICER SMITH, Correctional Officer; OFFICER WALKER, Correctional Officer; OFFICER PLOESSEL, Correctional Officer; OFFICER MOORE, Correctional Officer, Defendants-Appellees. No. 02-1538 (D. Colo.) (D.Ct. No. 00-Z-1973)*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

-2- ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, PORFILIO , and BRORBY , Senior Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument.

Appellant Alfred Cesspooch, a federal inmate appear ing pro se, appeals a district court order dismissing his civil rights su it against prison officials based on an incident in which several officials allegedlystripped and beat him. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Background Mr. Cesspooch filed a complaint in the United State s District Court for the District of Colorado, alleging prison officials vio lated his constitutional rights by-3-

stripping and beating him, while others ignored andconcealed the incident. He alleges the incident occurred February 6, 1997, buthe did not initiate this action until September 21, 2000. Mr. Cesspooch seeks money damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau o f Narcotics , 403 U.S. 388 (1971).

The district court referred the complaint to a magi strate judge, who recommended dismissing Mr. Cesspooch’s claims again st the Federal Bureau of Prisons as barred by sovereign immunity, and dismis sing four of the individually named defendants as barred by a two-year statute of limitations. The district court adopted the recommendation and dismissed the claims as to the Federal Bureau of Prisons and four of the individually name d defendants. Because Mr. Cesspooch did not effect service on the remaining d efendants, the district court did not address the claims against those parties. See Cesspooch v. Federal Bureau of Prisons , 2003 WL 77606 (10th Cir. Jan. 10, 2003) (unpublis hed). We affirmed the district court’s action. Id.

Shortly thereafter, the magistrate judge ordered Mr . Cesspooch to show cause why the court should not dismiss his claims a gainst the remaining defendants on grounds (1) Mr. Cesspooch failed to e ffect service, prosecute his-4-

claims, and comply with court orders; and (2) the c laims are barred by sovereign immunity and the statute of limitations. On Septem ber 30, 2002, after considering Mr. Cesspooch’s response, the magistrat e judge issued a thorough and carefully reasoned recommendation to dismiss the co mplaint on the grounds stated in its order to show cause. The recommendation adv ised the parties of their right to file a written objection “[w]ithin ten days afte r service of a copy of the Recommendation.”

On December 5, 2002, over two months after the magi strate judge issued his recommendation, Mr. Cesspooch filed a “Motion o f Notice of Appeals to the Court of Appeals” and a “Motion Objecting the Magis trate Judge Decision in the District Court of Colorado.” The district court is sued an order in December adopting the magistrate judge’s recommendation and dismissing Mr. Cesspooch’s complaint. The order noted Mr. Cesspooch filed an objection, but found the objection was neither timely nor specific. The cou rt thus concluded Mr. Cesspooch was not entitled to de novo review of the magistrate judge’s recommendation. Mr. Cesspooch subsequently filed adocketing statement and a jurisdictional memorandum brief.

On appeal, Mr. Cesspooch does not specifically chal lenge the grounds the1 Although we construe Mr. Cesspooch’s pro se brief liberally, see Haines v.

Kerner, 404 U.S. 519, 520 (1972), we will not assume the role of advocate and address issues not discussed in his brief, see Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991).

-5- district court relied on in dismissing his complaint. 1 Instead, he renews the allegations in his complaint. He also argues the d istrict court should have appointed counsel to represent him, and should have held an evidentiary hearing on his claims. We address the jurisdictional quest ion and Mr. Cesspooch’s arguments below.

Discussion As a preliminary matter, we must determine if we have jurisdiction to consider this appeal. Timpanogos Tribe v. Conway , 286 F.3d 1195, 1201 (10th Cir. 2002). Appellees Karl Ploessel and Gregory Wa lker argue we lack jurisdiction to consider this appeal because Mr. Ce sspooch’s “Motion of Notice of Appeals to the Court of Appeals” appears to seek re view of the magistrate judge’s recommendation, which is not a “final decision.” See 28 U.S.C. § 1291 (establishing “jurisdiction of appeals from all fin al decisions of the district courts of the United States”).

We liberally construe documents filed by pro se lit igants, including notices-6-

of appeal. See Shapolia v. Los Alamos Nat’l Lab. , 992 F.2d 1033, 1036 n.3 (10th Cir. 1993). We also liberally construe the technic al requirements of a notice of appeal to avoid injustice. See Smith v. Barry , 502 U.S. 244, 248-49 (1992). From pro se litigants, we have accepted docketing statem ents and motions on jurisdiction as the functional equivalent of a noti ce of appeal. See Rodgers v. Wyoming Attorney Gen. , 205 F.3d 1201, 1204 n.3 (10th Cir. 2000), overruled on other grounds, Moore v. Marr , 254 F.3d 1235, 1239 (10th Cir. 2001). Under these principles, we interpret Mr. Cesspooch’s time ly docketing statement and jurisdictional memorandum brief as a notice of appe al of the district court’s order dismissing his complaint. We therefore exercise jurisdiction under 28 U.S.C. § 1291.

We review the dismissal of a complaint for failure to effect service, prosecute, and comply with court orders, for an abu se of discretion. Cf. Scott v. Hern , 216 F.3d 897, 912 (10th Cir. 2000). However, we review de novo the district court’s determination that a complaint is barred by the statute of limitations, see Indus. Constructors Corp. v. United States Bure au of Reclamation , 15 F.3d 963, 967 (10th Cir. 1994), and dismissal for lack of subject matter jurisdiction on sovereign immunity, see Ordinance 59 Ass’n v. United States Dept. of Interior , 163 F.3d 1150, 1152 (10th Cir. 1998).-7-

With these standards in mind, we have carefully rev iewed the magistrate judge’s recommendations and the district court’s or der dismissing the complaint for failure to effectuate service, prosecute his cl aims, or comply with court orders, and for failure to show his claims are not barred b y sovereign immunity or the applicable statute of limitations. This review, to gether with our thorough review of the pleadings, briefs, and record on appeal, lea ds us to conclude the district court properly dismissed Mr. Cesspooch’s complaint for the reasons stated.

While he does not challenge the specific grounds fo r dismissal of his complaint, Mr. Cesspooch claims the district court erred by declining to appoint counsel to represent him. In support of this posit ion, Mr. Cesspooch states he does not understand the law and has difficulty read ing and writing. He believes the Fourteenth Amendment’s Equal Protection Clause and the Indian Civil Rights Act of 1968 entitle him to appointed counsel. See U.S. Const. amend. XIV; 25 U.S.C. §§ 1301-1303.

“We review the denial of appointment of counsel in a civil case for an abuse of discretion.” Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir.1995). Neither the Indian Civil Rights Act of 1968 nor the Equal Protection Clause guarantees the right to counsel in a civil case. See 25 U.S.C. §§ 1301-1303;-8-

Pennsylvania v. Finley , 481 U.S. 551, 556 (1987). Although prisoners all eging civil rights violations have no right to counsel, see Bethea v. Crouse , 417 F.2d 504, 505 (10th Cir. 1969), the district court may appoint counsel if it determines doing so would be appropriate. 28 U.S.C. § 1915(e) (1). In making this determination, the court considers “‘the merits of the litigant’s claims, the nature of the factual issues raised in the claims, the lit igant’s ability to present his claims, and the complexity of the legal issues rais ed by the claims.’” Rucks , 57 F.3d at 979 (quoting Williams v. Meese , 926 F.2d 994, 996 (10th Cir.1991)). After reviewing Mr. Cesspooch’s claims and the enti re record on appeal, we conclude the district court did not abuse its discr etion in denying Mr. Cesspooch’s motion to appoint counsel.

Mr. Cesspooch also argues he is entitled to an evid entiary hearing on the merits of his claim. We review a district court’s denial of an evidentiary hearing for an abuse of discretion. Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir.1996). Because we determine the district court properly di smissed Mr. Cesspooch’s claims on legal grounds that did not necessitate a hearing or introduction of additional evidence, the district court did not abu se its discretion in declining to conduct an evidentiary hearing.-9-

Conclusion For the foregoing reasons, and for substantially th e same reasons as those stated by the district court, we AFFIRM the dismissal of Mr. Cesspooch’s complaint. We further deny Mr. Cesspooch’s “Motionfor Leave to Proceed on Appeal.”

Entered by the Court: WADE BRORBY United States Circuit Judge