UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ HAROLD CUNNINGHAM, Plaintiff - Appellant, and PERCY BARRON; ALPHONSO BLAKE; JABBAR CURRENCE; CARLTON DUNBAR; SCOTT FOUNTAIN; SEAN GILLESPIE; CHARLE S HIPPS; RONNIE HOUSTON; JOHN LAMB; HERBERT PERKINS; JOHN J. POWERS; ARNELL SHELTON; MARCELLUS WASHINGTON; CENTER FOR LEGAL ADVOCACY, d/b/a Disability Law Colorado, Plaintiffs - Appellees,

v. FEDERAL BUREAU OF PRISONS, Defendant - Appellee. No. 17-1054 (D.C. No. 1:12-CV -01570-RPM-MEH) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , McKAY , and MATHESON , Circuit Judges.

* After examining the briefs and appella te record, this panel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### September 21, 2017
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Harold Cunningham, proceeding pro se, appeals the judgme nt approving the settlement of a class action brought by ment ally ill prisoners hou sed in the federal administrative-maximum facility in Flor ence, Colorado (ADX). He argues that the settlement was not fair, reas onable, or adequate because it did not provide for money damages. He has requested leave to pro ceed in forma pauperis (IFP) on appeal. We grant IFP and affirm.
I. Background We provide a brief description of the background to frame the issues presented for review. In 2012 counsel for several ADX prisoners filed th e underlying action alleging that they were denied required me ntal-health treatment and were so abused by prison personnel that the conditions of their confinement constituted cruel and unusual punishment in violation of th e Eighth Amendment. In 2015 counsel submitted a second amended co mplaint, the operative compla int in the case, seeking class certification fo r ADX inmates needing mental-hea lth evaluation and treatment. A federal magistrate judge facilitated discovery and se ttlement negotiations. In November 2016 the plaintiffs filed a propos ed settlement agre ement setting out the terms of a settlement, incl uding required policies and pro cedures for diagnosis and treatment of ADX prisoners. The district court held a three-day fairness hearing under Fed. R. Civ. P. 23(a) . Several ADX prisoners testif ied by videotape and others submitted written statements.3 The district court noted that the defe ndant Federal Bureau of Prisons (BOP) “has not admitted an Eighth Amendment viol ation as to any of the plaintiffs or a systemic violation at ADX.” R. Vol. 1, at 367. Rath er, the BOP agreed to the settlement because it recogni zed the need for new policies and practices for mentally ill inmates at ADX. The cour t observed that although the case was triable, “[t]he complexities of such a trial are evident. That is a principal reason for the settlement of this action.” Id. And it pointed out that the settl ement could not be relied on in an individual claim against a BOP official or employee brought in a separate Bivens action. See Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics , 403 U.S. 388 (1971). The district court acknowledged that so me of the prisoners objected to the settlement because it did not provide for any awards of money damages. But it noted (1) that the operative compla int did not include claims for damages because damage awards against the BOP are barred by sovere ign immunity; (2) that even if prisoners had claims for medical negligence under the Federal Tort Claims Act, those claims were not appropriate in a class action beca use they would not meet the class-action requirements in Rule 23(a) of commonality and typicality; and (3) that any inmate may still pursue an independent Bivens action. The court approved the settlement agreement and later dismissed the action s ubject to retention of jurisdiction to enforce the agreement.4 II. Discussion We review the district court’s appr oval of the settlement for abuse of discretion. Fager v. CenturyLink Commc’ns, LLC , 854 F.3d 1167, 1174–75 (10th Cir. 2016). “A dist rict court may approve a pr oposed settlement only after ‘finding that it is fair, re asonable, and adequate.’” Id. at 1174 (quoting Fed. R. Civ. P. 23(e)(2)). We liberally view Mr. Cunn ingham’s pro se filings. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 ( 10th Cir. 2005). We do not, however, “take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Id. Moreover, “pro se parties [must] follow the same rules of procedure th at govern other litigants.” Id. (internal quotation marks omitted). Mr. Cunningham first claims that dur ing a hearing in November 2013 the attorney for the class and the magistrate judge agreed to set up a trust fund for payment of money awards to certain prisone rs, yet the attorney improperly failed to set it up. 1 But he does not cite to any r ecord evidence for this claim. See Fed. R. App. P. 28(a)(8)(A) (stating appe llant’s brief must contain, among other things, citations to the “parts of the record on which the appellant relies”). And what we do have in the record does not support the claim. The atto rney for the class discussed this matter during the fairness hearing, informi ng the court that “there was

1 To the extent Mr. Cunningham attemp ts to represent the interests of other prisoners, a pro se litigant ma y not represent other pro se lit igants in federal court. See Fymbo v. State Farm Fire & Cas. Co. , 213 F.3d 1320, 1321 (10th Cir. 2000).5 a discussion of whether ther e was a way to divert or to set aside an attorney fee award to create some kind of a compensation pool, . . . [but] the government declined to consent to that co mpensation idea.” Aplee. Supp. App. Vol. 9, at 2125-26. It is undisputed that monetary compensation for inmates was not included in the final settlement agreement a pproved by the court. Mr. Cunningham also raises an argumen t based on his propos ed pro se Third Amended Complaint seeking m oney damages. The district court struck the Third Amended Complaint because (1 ) it attempted to bring individual damages claims in the class action, (2) Mr. Cunningham was re presented by class c ounsel so the court could not accept pro se filings, and (3) acceptance of an ame nded complaint would supersede the prior operativ e class complaint. Mr. C unningham filed a motion to reconsider. He contends that the BOP’ s failure to respo nd to the motion to reconsider is a concession that the BOP violated his Eighth Amendment rights. Contrary to his characterization of the proceedings, however, the BOP responded to the motion to reconsider. And although the di strict court did not formally rule on the motion, the court implicitly denied it by dismissing the case. See Fransen v. Conoco,
Inc. , 64 F.3d 1481, 1489 n.6 (10th Cir. 1995) (district court im plicitly denied plaintiff’s claim by ruling on defe ndant’s summary-judgment motion). Mr. Cunningham next asserts that th e settlement agreement should be voided because BOP officials retaliated against him for refusing to agree to th e settlement. But he does not identify where he raised a retaliation clai m in the district court and he does not argue for the application of plai n-error review on appeal. Therefore, the6 retaliation claim is waived. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1130-31 (10th Cir. 2011). Ev en though we do not consider his retaliation claim in this appeal, we note that the settlemen t order does not foreclose Mr. Cunningham from bringing a separate act ion for retaliation. Mr. Cunningham also asserts that he wa s denied his First Amendment right to testify in opposition to the settlement at the fairness h earing. Again, he has not shown where he raised this claim in the district cour t or argued for plain-error review, so this cl aim is waived. See id. And we note that he was afforded adequate notice and an opportunity to be heard. Mr. Cunningham filed pl eadings stating his objections. And the district court recogni zed the objection of some of the class members that the settlement did not provide for money damages. See Rutter & Wilbanks Corp. v. Shell Oil Co. , 314 F.3d 1180, 1187 (10th Cir. 2002) (noting as to objections to class-action se ttlement that “[t]he funda mental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner” (internal quotation marks omitted)). Mr. Cunningham argues that an awar d of money damages was contemplated by the operative complaint beca use the relief request ed included “such other relief as th[e] Court deems just and proper,” Aplee. Su pp. App. Vol. 8, at 1870. Perhaps so. But even if the complaint ha d explicitly sought money dama ges, that would not affect the validity of the ultimate se ttlement. A settlement is not unfair simply because it does not provide all relie f originally sought.7 Finally, Mr. Cunningham maintains that he is entitled to an award of attorney fees for acting as the lead plaintiff and helping to put the case together. The fees payable to the attorneys fo r the class were authorized under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. But “a ttorney fees are not available for pro se litigants under the EAJA.” Demarest v. Manspeaker , 948 F.2d 655, 655 (10th Cir. 1991).
III. Pending Motions Mr. Cunningham’s requests for appointme nt of counsel and an evidentiary hearing in this appeal are denied, as ar e his requests “for pr oduction of document transcribed” and an award of money damage s. His application to proceed IFP is granted; but he remains obligated to pay all filing and docketing fees.
IV. Conclusion The judgment is affirmed.

Entered for the Court

Harris L Hartz Circuit Judge