UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CHRISTOPHER D. HARRELL, Plaintiff - Appellant,

v. GEORGE DANIEL ROSS, JR., Sergeant and Grievance Manager, Wyoming Medium Correctional Institution, in his official and individual capacities, Defendant - Appellee. No. 23-8035 (D.C. No. 2:22-CV-00273-ABJ) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , KELLY , and LUCERO , Circuit Judges.

________________ _________________ Christopher Harrell, a Wyoming inmate proceeding pro se, appeals from the district court’s dismissa l of his suit against pris on sergeant George Ross under 42 U.S.C. § 1983 and the Wyoming Constit ution. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of the clai ms under § 1983, affirm the

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 11, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 12 dismissal of the official-capacity claims under the Wyoming Constitution, and vacate the dismissal of the individual-capacity claims under the Wyoming Constitution and remand for further proceedings.
BACKGROUND Harrell is an inmate at Wyoming Me dium Correctional Institution (WMCI), where Sergeant Ross works. In the summer of 2022, Harre ll was a plaintiff in a separate federal civ il rights case captioned Harrell v. Johnson . He served Sergeant Ross with a summons in Harrell v. Johnson on July 29, 2022. 1 On July 30, Harrell was scheduled for an unrelated video vis it. He was about 15 minutes early; so to kill time he entered the computer laboratory, which was on the same hallway, where anot her inmate (C.B.) was usi ng a computer. Harrell had previously supplied an affidavi t in unrelated C.B. litigation. He asked C.B. about the status of his suit and about filing similar litigation on his own behalf. C.B. used the laboratory computer in the process of responding to Ha rrell’s inquiry. Sergeant Ross was the secur ity officer for the comput er-laboratory hallway on July 30. A policy posted on the laboratory door barred inmates from loitering in the laboratory while nonetheless allowing prison ers to be in the room “if actively utilizing a computer.” R. at 111. Afte r seeing Harrell’s inte raction with C.B.,

1 Sergeant Ross states that service occurred on July 28, 2022, but we recite the facts as the comp laint pleads them. Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 23 Sergeant Ross issued a conduct violati on report (CVR) charging Harrell with disobeying an order by vi olating the posted policy. 2 At his disciplinary hearing, Harrell “sta ted that he was in the computer lab assisting and reviewing legal wo rk pertaining to [C.B.]. . . . [He] stated that he was utilizing a computer, it was just a ‘shared’ computer with [C.B.].” R. at 113. The hearing officer reviewed a recording from th e computer laboratory and noted that “it appears that [Harrell] is revi ewing [C.B.’s] computer and speaking with [C.B.]. Both inmates appear actively engage d with computer work.” Id. After speaking with the law librarian and the deputy warden, th e hearing officer determined inmates commonly shared computers and the policy was intended to bar inmates who were not engaged in computer work. The hearing officer found no violation. Based in part on the hearing officer’s vindication, Harrell filed a civil rights suit in Wyoming state court alleging Serg eant Ross, acting in his official and individual capacities, violated federal and state constitutional rights by issuing the CVR. Sergeant Ross removed the suit to th e federal district court and moved for dismissal under Federal Rule of Civil Proce dure 12(b)(6). The di strict court granted the motion, holding that (1) sovereign im munity barred the state constitutional claims; (2) Harrell had not adequately pl eaded his federal c onstitutional claims

2 In deciding a Rule 12(b)(6) moti on, a court may review documents referenced in the compla int without converting the motion to one for summary judgment. See Brokers’ Choice of Am., In c. v. NBC Universal, Inc. , 861 F.3d 1081, 1103 (10th Cir. 2017). Applying that prin ciple, Sergeant Ross submitted copies of the CVR and disciplinary file, and the dist rict court considered them. Harrell does not challenge that decision on appeal. Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 34 against Sergeant Ross, in either his individual or official capacity; and (3) Sergeant Ross was en titled to qualified immun ity on the § 1983 claims. 3 The district court dismissed the entire action with prejudice.
DISCUSSION
I. Standards of Review We review a Rule 12(b)(6) dismissal de novo. Al-Owhali v. Holder , 687 F.3d 1236, 1239 (10th Cir. 2012). “[A] complaint must cont ain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). “A lthough we must accept as tr ue all factual allegations asserted in the complaint, dismissal is appropriate wher e the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. (internal quotation marks omitted). Because Harrell proceeds pro se, we construe his filings liberally. See Davis v. Clifford , 825 F.3d 1131, 1134 n.1 (10th Cir. 2016). “This liberal treatment is not without limits, and this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” Kay v. Bemis , 500 F.3d 1214, 1218 (10th Cir. 2007) (internal quotation marks omitted). “W e do not . . . take on the

3 The district court stat ed that to the extent Harrell implicitly sought expungement of the CVR from hi s record, he would have to seek habeas relief under 28 U.S.C. § 2241 rather than through a ci vil rights action. On appeal, Harrell suggests the district court should have conv erted that portion of his complaint to a habeas claim. But in the di strict court he neither explic itly requested expungement of the CVR nor requested conversion, and he has not argued for plain error on appeal. Thus, he has waived the issue. See Wyo-Ben Inc. v. Haaland , 63 F.4th 857, 871 (10th Cir. 2023) (c ollecting cases). Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 45 responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Davis , 825 F.3d at 1134 n.1 (i nternal quotation marks omitted).
II. Federal Claims A. Individual-Capaci ty § 1983 Claims
1. First Amendment Retaliation Claim Harrell claimed that Sergeant Ross issu ed the CVR in reta liation for Harrell’s exercise of his First Amendment rights. To proceed with this claim, Harrell must plausibly plead: (1) he engaged in constitutionally protected activity; (2) Sergeant Ross’s actions caused him “to suffer an injury that would chill a person of ordinary firmness from continui ng to engage in that activity”; and (3) Sergeant Ross’s “adverse ac tion was substantially motivat ed as a response” to his protected conduct. Shero v. City of Grove , 510 F.3d 1196, 1203 (10th Cir. 2007). Before the district court, Sergeant Ross conceded for pur poses of his Rule 12(b)(6) motion that the filing of Harrell v. Johnson was protected conduct and the issuing a CVR could constitute “chilling,” so this claim rests on number (3). In order for a First Amendm ent retaliation claim to prev ail, “a plaintiff must establish a causal connection between the gove rnment defendant’s retaliatory animus and the plaintiff's subsequent injury.” Nieves v. Bartlett , 139 S. Ct. 1715, 1722 (2019) (internal quotation marks omitted). “It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was inju red—the motive must

cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 56 action against the plaintiff would not have b een taken absent the retaliatory motive.” Id. Harrell relies on temporal proximity to establish causation. We have held however, that “mere temporal proximity is in sufficient, without mo re, to establish the elements of retaliation.” VDARE Found. v. City of Colo. Springs , 11 F.4th 1151, 1174 (10th Cir. 2021) (interna l quotation marks omitted), cert. denied , 142 S. Ct. 1208 (2022). Because the complaint did no more than allege te mporal proximity, it did not plausibly plead but-for causation. Accordingly, the district court did not err in dismissing the First Amendm ent retaliation claim. 2. Fourteenth Amendment Equal Protection Claim 4 Harrell also claimed that Sergeant Ro ss violated his Fourteenth Amendment right to equal protection of the laws. To proceed with this claim, Harrell must plausibly plead that Sergean t Ross treated him differently from similarly situated inmates. See Grissom v. Roberts , 902 F.3d 1162, 1173 (10th Cir. 2018). “Individuals are similarly situat ed only if they are alike in all relevant respects.” Id. (internal quotation marks omitted). A plain tiff must do more than make conclusory allegations to establish an equal protection claim. See Brown v. Zavaras , 63 F.3d 967, 972 (10th Cir. 1995).

4 On appeal, Harrell also discusses due pr ocess principles. But in the district court he did not assert a due process claim, and he does not argue for plain error on appeal. He thus has waived this claim. See Wyo-Ben Inc. , 63 F.4th at 871. Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 67 Harrell’s complaint does not assert any facts showin g he was treated differently than any other inmate, much less a similarly situated inmate. In response to the Rule 12(b)(6) motion, he alleged he was the only inmate in the laboratory to receive a CVR. But even were Harrell to include this allega tion in an amended complaint, it is not sufficien tly specific to assert a plausible claim. Just pointing out that there were other inmate s in the computer laborator y does not mean that those other inmates were similarly situated to Harrell—for example, Harrell has never alleged that Sergeant Ross saw any other in mate come into the computer laboratory for a short period and look at another inmate’s computer sc reen, but did not issue him a CVR. The district court did not err in dismissing the equal protection claim. 3. Qualified Immunity “The doctrine of qualified immunity protects government officials from liability for civil damages in sofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (int ernal quotation marks omitted). “The protection of qualified immunity app lies regardless of whether the government official’s error is a mistak e of law, a mistake of fact , or a mistake based on mixed questions of law and fact.” Id. (internal quotation marks omitted). When a defendant asserts qualified immunity, it is the plaintiff’s burden to establish (1) the defendant violated a constitutional right, and (2) the ri ght was clearly established at the time. See id. at 232. The court may a ddress either prong first. See id. at 236. Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 78 The district court held that Harrell failed to establish either prong. Because we have affirmed the determinati on that Harrell failed to plau sibly plead the violation of a constitutional right, we need not consider the clearly established prong. We affirm the district court’s award of qualified immunity on the individual-capacity § 1983 claims. B. Official-Capacity § 1983 Claims “An official capacity suit is, in all resp ects other than name, to be treated as a suit against the entity.” Prince v. Sheriff of Carter Cnty. , 28 F.4th 1033, 1048 (10th Cir. 2022) (int ernal quotation marks omitted). Howe ver, “neither a State nor its officials acting in their official cap acities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police , 491 U.S. 58, 71 (1989). They may be sued under § 1983 only for injunctive relief. See id. at 71 n.10; Kentucky v. Graham , 473 U.S. 159, 169 n.18 (1985). And “a governmental entity is liab le under § 1983 only when the entity itself is a moving force behi nd the deprivation.” Graham , 473 U.S. at 166 (internal quotation marks omitted). Harrell failed to plead specific facts to show that the Wyoming Department of Corrections (DOC) was a “moving force” be hind the alleged First Amendment and Fourteenth Amendment violations. Moreover, before this court, he states, “As DOC supported the memo and Mr. Harrell’s acquittal, it seem s this decision was solely Defendant Ross’ while he worked for DOC. This suit is agains t Defendant Ross, not
DOC , therefore the Eleventh Amendment doe s not apply.” Aplt. Reply Br. at 16 (emphasis added). By conceding his real dispute is with Se rgeant Ross in his Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 89 individual capacity, Harrell effectively aba ndons his official-cap acity § 1983 claims. We affirm the dismi ssal of those claims.
III. State Claims Harrell alleged violati ons of §§ 16 and 21 of Ar ticle 1 of the Wyoming Constitution. The complaint ostensibly pleaded these claims under § 1983. Recognizing that “an action under § 1983 . . . cannot be maintained on the basis of alleged violations of state law,” Stanko v. Maher , 419 F.3d 1107, 1117 (10th Cir. 2005) (rejecting § 1983 claim under the Wyom ing Constitution), the district court addressed these claims as se parate state constitutional cl aims and held they were barred by sovereign immunity. “[T]he general rule in Wyoming is that the gove rnment is immune from liability, and, unless a claim falls with in one of the statutory exceptions to governmental immunity, it will be barred.” State Dep’t of Corr. v. Watts , 177 P.3d 793, 798 (Wyo. 2008) (brackets and inte rnal quotation marks omitted). “The decision of whether to waive immunity for a governmental entity belongs to the Wyoming Legislature, not [the Wyoming Supreme] Court.” Craft v. State ex rel. Wyo. Dep’t of Health , 465 P.3d 395, 403 (Wyo. 2020). The Wyoming Constitution provides that “[s]uits may be brought against the state in such manner and in such courts as the legislature may by law direct.” Wyo. Const. art. 1, § 8. The Wyomi ng Supreme Court, however, has held this provision “is not self-executing; that no suit can be maintained ag ainst the State until the legislature makes provision for such filing; and, that absent such consent, no suit Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 910 or claim could be made against the State.” May v. Se. Wyo. Mental Health Ctr. , 866 P.2d 732, 737 (W yo. 1993) (internal quotation ma rks omitted). Harrell has not identified any provision by the Wyoming le gislature allowing the State to be sued under §§ 16 and 21 of Article 1 of the Wyoming Constitution. Accordingly, the district court correctly app lied sovereign immunity to di smiss the state constitutional claims as to Sergeant Ross in his official capacity. See May , 866 P.2d at 737 (holding that plaintiff’s “civil rights clai ms, based on the Wyoming Constitution, fail because of no implementi ng legislation”). This leaves the state constitutional claims against Sergeant Ross in his individual capacity. In discussing the au thorities regarding immunity, neither the district court nor Sergeant Ross distinguish between the sergeant’ s official capacity and his individual capacity. But a claim against an employee in an individual capacity is not necessarily a claim against the state. See Graham , 473 U.S. at 167-68 (“A victory in a personal-capacity action is a victory against the individual defendant, rather than against the en tity that employs him.”); Norton v. Ute Indian Tribe of the Uintah & Ouray Rsrv. , 862 F.3d 1236, 1250 n.5 (10t h Cir. 2017) (“Sovereign immunity does not bar claims ag ainst a state officer sued in his individual capacity as long as the relief sought woul d not operate against the sove reign.”). It may well be that a plaintiff cannot bri ng claims under the state cons titution against employees in their individual capacities in the absence of some enabli ng legislation—akin to the role § 1983 plays for federal constitutiona l claims—or that some other immunity applies, but we decline to address those unbr iefed issues in the first instance. We Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 1011 therefore vacate the judgment in favor of Sergeant Ross in his individual capacity on the state constitutional claims and remand fo r the district court to conduct further proceedings, which in its discretion may in clude declining to exercise supplemental jurisdiction over those claims. See Crane v. Utah Dep’t of Corr. , 15 F.4th 1296, 1314 (10th Cir. 2021) (“When all federal clai ms have been dismi ssed, the court may, and usually should, decline to exercise ju risdiction over any remaining state claims.” (internal quotation marks omitted)).
IV. Dismissal Without Opportunity to Amend Harrell also complains that the dist rict court dismissed the action with prejudice, without allowing him an opportunity to ame nd. “A dismissal with prejudice is appropriate where a complaint fails to state a clai m under Rule 12(b)(6) and granting leave to amend would be futile.” Brereton v. Bountiful City Corp. , 434 F.3d 1213, 1219 (10th Cir. 2006). As discussed, the complaint failed to state a plausible § 1983 claim or an official-cap acity claim under the Wyoming Constitution. Although Harrell assert s he could correct the deficien cies if he were given an opportunity to amend, he never moved to amend in the district court, and his district-court filings a nd appellate briefs do not allege sufficiently sp ecific facts or law to indicate that amendment would not be futile. We th erefore affirm the dismissal of the § 1983 claims and the o fficial-capacity state constitutional claims with prejudice, without providing for an opportunity to amend. Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 1112 CONCLUSION We grant Harrell’s motion to proceed without prepayme nt of costs and fees. We affirm the dismissal of the claims under § 1983 and th e official-capacity claims under the Wyoming Constitution. We vacate the dismissal of the individual-capacity claims under the Wyoming Constitution and remand for further proceedings.

Entered for the Court

Carlos F. Lucero Circuit Judge Appellate Case: 23-8035 Document: 010110982028 Date Filed: 01/11/2024 Page: 12