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 This order and judgment is not binding precedent except under the doctrines of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 judicata and 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.

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ORDER AND JUDGMENT*

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

Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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 appearing pro se, appeals a

district court order dismissing his civil rights suit against prison officials based

on an incident in which several officials allegedly stripped and beat him. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Background

Mr. Cesspooch filed a complaint in the United States District Court for the

District of Colorado, alleging prison officials violated his constitutional rights by
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stripping and beating him, while others ignored and concealed the incident. He

alleges the incident occurred February 6, 1997, but he 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 of Narcotics, 403 U.S. 388

(1971).

The district court referred the complaint to a magistrate judge, who

recommended dismissing Mr. Cesspooch’s claims against the Federal Bureau of

Prisons as barred by sovereign immunity, and dismissing 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 named defendants. Because Mr.

Cesspooch did not effect service on the remaining defendants, 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) (unpublished). 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 against the remaining

defendants on grounds (1) Mr. Cesspooch failed to effect service, prosecute his
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claims, and comply with court orders; and (2) the claims are barred by sovereign

immunity and the statute of limitations. On September 30, 2002, after

considering Mr. Cesspooch’s response, the magistrate judge issued a thorough and

carefully reasoned recommendation to dismiss the complaint on the grounds stated

in its order to show cause. The recommendation advised the parties of their right

to file a written objection “[w]ithin ten days after service of a copy of the

Recommendation.”

On December 5, 2002, over two months after the magistrate judge issued

his recommendation, Mr. Cesspooch filed a “Motion of Notice of Appeals to the

Court of Appeals” and a “Motion Objecting the Magistrate Judge Decision in the

District Court of Colorado.” The district court issued 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 court thus concluded Mr.

Cesspooch was not entitled to de novo review of the magistrate judge’s

recommendation. Mr. Cesspooch subsequently filed a docketing statement and a

jurisdictional memorandum brief.

On appeal, Mr. Cesspooch does not specifically challenge the grounds the
1

 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).

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district court relied on in dismissing his complaint.1

 Instead, he renews the

allegations in his complaint. He also argues the district court should have

appointed counsel to represent him, and should have held an evidentiary hearing

on his claims. We address the jurisdictional question 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 Walker argue we lack

jurisdiction to consider this appeal because Mr. Cesspooch’s “Motion of Notice of

Appeals to the Court of Appeals” appears to seek review of the magistrate judge’s

recommendation, which is not a “final decision.”See 28 U.S.C. § 1291

(establishing “jurisdiction of appeals from all final decisions of the district courts

of the United States”).

We liberally construe documents filed by pro se litigants, including notices
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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 technical 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 statements and motions on

jurisdiction as the functional equivalent of a notice 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 timely docketing statement and

jurisdictional memorandum brief as a notice of appeal 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 abuse 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 Bureau 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).
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With these standards in mind, we have carefully reviewed the magistrate

judge’s recommendations and the district court’s order dismissing the complaint

for failure to effectuate service, prosecute his claims, or comply with court orders,

and for failure to show his claims are not barred by sovereign immunity or the

applicable statute of limitations. This review, together with our thorough review

of the pleadings, briefs, and record on appeal, leads us to conclude the district

court properly dismissed Mr. Cesspooch’s complaint for the reasons stated.

While he does not challenge the specific grounds for dismissal of his

complaint, Mr. Cesspooch claims the district court erred by declining to appoint

counsel to represent him. In support of this position, Mr. Cesspooch states he

does not understand the law and has difficulty reading 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;
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Pennsylvania v. Finley, 481 U.S. 551, 556 (1987). Although prisoners alleging

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 litigant’s ability to present his

claims, and the complexity of the legal issues raised 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 entire record on appeal, we

conclude the district court did not abuse its discretion in denying Mr. Cesspooch’s

motion to appoint counsel.

Mr. Cesspooch also argues he is entitled to an evidentiary 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 dismissed Mr. Cesspooch’s

claims on legal grounds that did not necessitate a hearing or introduction of

additional evidence, the district court did not abuse its discretion in declining to

conduct an evidentiary hearing.
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Conclusion

For the foregoing reasons, and for substantially the same reasons as those

stated by the district court, we AFFIRM the dismissal of Mr. Cesspooch’s

complaint. We further deny Mr. Cesspooch’s “Motion for Leave to Proceed on

Appeal.”

Entered by the Court:

WADE BRORBY

United States Circuit Judge