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; CHARLES 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 appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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 Court
2 

_________________________________ 

Harold Cunningham, proceeding pro se, appeals the judgment approving the 

settlement of a class action brought by mentally ill prisoners housed in the federal 

administrative-maximum facility in Florence, Colorado (ADX). He argues that the 

settlement was not fair, reasonable, or adequate because it did not provide for money 

damages. He has requested leave to proceed 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 the underlying action 

alleging that they were denied required mental-health treatment and were so abused 

by prison personnel that the conditions of their confinement constituted cruel and 

unusual punishment in violation of the Eighth Amendment. In 2015 counsel 

submitted a second amended complaint, the operative complaint in the case, seeking 

class certification for ADX inmates needing mental-health evaluation and treatment. 

A federal magistrate judge facilitated discovery and settlement negotiations. In 

November 2016 the plaintiffs filed a proposed settlement agreement setting out the 

terms of a settlement, including required policies and procedures 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 testified by videotape and others 

submitted written statements. 
3 

 The district court noted that the defendant Federal Bureau of Prisons (BOP) 

“has not admitted an Eighth Amendment violation as to any of the plaintiffs or a 

systemic violation at ADX.” R. Vol. 1, at 367. Rather, the BOP agreed to the 

settlement because it recognized the need for new policies and practices for mentally 

ill inmates at ADX. The court 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 settlement 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 some 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 complaint did not include claims for damages because damage 

awards against the BOP are barred by sovereign 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 because 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 subject to retention of jurisdiction to 

enforce the agreement. 
4 

II. Discussion 

We review the district court’s approval of the settlement for abuse of 

discretion. Fager v. CenturyLink Commc’ns, LLC, 854 F.3d 1167, 1174–75 

(10th Cir. 2016). “A district court may approve a proposed settlement only after 

‘finding that it is fair, reasonable, and adequate.’” Id. at 1174 (quoting 

Fed. R. Civ. P. 23(e)(2)). 

We liberally view Mr. Cunningham’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 that govern other litigants.” Id. (internal quotation marks 

omitted). 

 Mr. Cunningham first claims that during 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 prisoners, yet the attorney improperly failed to 

set it up.1

 But he does not cite to any record evidence for this claim. See

Fed. R. App. P. 28(a)(8)(A) (stating appellant’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 attorney for the class 

discussed this matter during the fairness hearing, informing the court that “there was 

 1

 To the extent Mr. Cunningham attempts to represent the interests of other 

prisoners, a pro se litigant may not represent other pro se litigants in federal court. 

See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000). 
5 

a discussion of whether there 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 compensation 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 approved by the court. 

Mr. Cunningham also raises an argument based on his proposed pro se Third 

Amended Complaint seeking money 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 represented by class counsel so the court 

could not accept pro se filings, and (3) acceptance of an amended complaint would 

supersede the prior operative class complaint. Mr. Cunningham filed a motion to 

reconsider. He contends that the BOP’s failure to respond 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 district 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 implicitly denied 

plaintiff’s claim by ruling on defendant’s summary-judgment motion). 

 Mr. Cunningham next asserts that the settlement agreement should be voided 

because BOP officials retaliated against him for refusing to agree to the settlement. 

But he does not identify where he raised a retaliation claim in the district court and 

he does not argue for the application of plain-error review on appeal. Therefore, the 
6 

retaliation claim is waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 

1130-31 (10th Cir. 2011). Even though we do not consider his retaliation claim in 

this appeal, we note that the settlement order does not foreclose Mr. Cunningham 

from bringing a separate action for retaliation. 

 Mr. Cunningham also asserts that he was denied his First Amendment right to 

testify in opposition to the settlement at the fairness hearing. Again, he has not 

shown where he raised this claim in the district court or argued for plain-error 

review, so this claim is waived. See id. And we note that he was afforded adequate 

notice and an opportunity to be heard. Mr. Cunningham filed pleadings stating his 

objections. And the district court recognized 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 settlement that “[t]he fundamental 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 award of money damages was contemplated 

by the operative complaint because the relief requested included “such other relief as 

th[e] Court deems just and proper,” Aplee. Supp. App. Vol. 8, at 1870. Perhaps so. 

But even if the complaint had explicitly sought money damages, that would not affect 

the validity of the ultimate settlement. A settlement is not unfair simply because it 

does not provide all relief 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 for the class were authorized under the Equal Access to 

Justice Act (EAJA), 28 U.S.C. § 2412. But “attorney 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 appointment of counsel and an evidentiary 

hearing in this appeal are denied, as are his requests “for production of document 

transcribed” and an award of money damages. 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