UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

EDWARD ALLEN, a/k/a Edward Clutts 

 Plaintiff - Appellant, 

v. 

FRED FIGUERA; CORRECTIONS 

CORPORATION OF AMERICA; DAVID 

NELLIS; LT. WILLIAMS 

 Defendants - Appellees. 

No. 10-1162 

 (D.C. No. 1:07-CV-00137-ZLW-BNB) 

(D. Colo.) 

ORDER AND JUDGMENT*

Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.

 *

 The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 

34.1(G). This case is submitted for decision on the briefs. 

This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. 

It is appropriate as it relates to law of the case, issue preclusion and claim preclusion. 

Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). 

Citation to an order and judgment must be accompanied by an appropriate parenthetical 

notation B (unpublished). Id. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 23, 2011

Elisabeth A. Shumaker 

Clerk of Court
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Edward Allen, a Colorado prisoner proceeding pro se,1

 appeals the district court 

decision granting summary judgment to the defendants in his 42 U.S.C. § 1983 civil 

rights action against the warden and two correctional officers of the North Fork 

Correction Facility in Oklahoma. We affirm. 

BACKGROUND 

Allen alleged in his complaint and supporting documents that the defendants 

violated his rights under the Eighth Amendment by failing to take appropriate measures 

to protect him from attacks by other inmates, by placing him at the same facility as his 

wife’s ex-husband, by informing other inmates of his status as a protective custody sex 

offender, and by placing him in the same cell with inmates who posed a risk of harm to 

him due to his status. According to Allen, after informing Warden Figueroa he feared he 

would be harmed by his wife’s ex-husband who was incarcerated in the same facility, 

Allen was placed in the segregation unit for his safety. Once in segregation, (where he 

wanted to be), Allen claims Officer David Nellis told his cellmate that Allen was a 

protective custody sex offender to encourage the cellmate to harm him.2

 As a result, the 

cellmate would not allow Allen back into the cell after his shower. When Allen learned 

he would be moved, he suffered an anxiety attack and was seen for a short period in the 

medical unit. Later, Captain Jerramy Williams escorted him to another cell telling Allen 

 1

 We liberally construe Allen’s pro se filings. See Ledbetter v. City of Topeka, 

Kan., 318 F.3d 1183, 1187 (10th Cir. 2003). 

2

 Allen admits he was not in the room when Nellis allegedly made the statement 

and he provides no admissible evidence of this fact. Nellis, however, submitted a sworn 

affidavit denying this allegation. 
- 3 - 

he had spoken to the inmate and there would be no problem for the weekend. After 

Williams placed Allen with the new cellmate, his new cellmate asked why Allen had 

problems with his last cellmate. Allen then disclosed his status as a sex offender. The 

cellmate proceeded to loudly demand Allen be removed from the cell while banging on 

the cell door and swearing. Williams had left for the evening and the officer on duty told 

Allen he could not be moved until Williams returned.3

 Allen alleged the cellmate had 

pens or pencils and, at one time, held a pen as if he might stab Allen. During these 

events, Allen suffered a second anxiety attack but was otherwise unharmed. Allen was 

placed in a single cell the next day and subsequently elected to return to the general 

population.4

Allen filed a slew of motions,5

 only a few of which are at issue in this appeal. He 

filed a motion to suppress his deposition because the court reporter was not a notary in 

the state in which the deposition was taken as well as numerous motions for appointment 

of counsel, all of which the magistrate denied. The district court declined to disturb the 

magistrate’s orders and also separately denied Allen’s motion to amend his complaint and 

to correct the scheduling order to set a deadline for amendment of the complaint. 

Defendants filed a motion for summary judgment. After reviewing the report and 

 3

 In early pleadings, Allen does not mention Williams as the reason he could not 

be moved but instead alleges he was told there were no available beds in which he could 

be placed. 

4

 Allen returned to the general population but was moved to a different cell block 

so he would not be housed with his wife’s ex-husband. 

5

 The district court docket in Allen’s case has over 300 entries. 
- 4 - 

recommendation from the magistrate judge and Allen’s objections, the district court 

entered summary judgment in favor of the defendants. The court concluded Allen 

presented no competent evidence demonstrating he was subjected to a substantial risk of 

serious harm or showing deliberate indifference to such a risk by any defendants. 

STANDARD OF REVIEW 

Allen claims the court erred in: (1) denying his motion to amend his complaint, (2) 

refusing to retroactively amend the scheduling order to set a time limit for amending his 

complaint, (3) denying his motion to suppress his deposition because the court reporter 

was not certified in Colorado, (4) accepting two unsigned affidavits attached to 

defendant’s motion for summary judgment, (5) striking the affidavits attached to his 

response brief, (6) refusing to appoint counsel to represent him, and (6) granting 

summary judgment. The district court’s decision to deny amendment of the complaint 

and its acceptance or rejection of evidence is reviewed for abuse of discretion. See Milne 

v. USA Cycling, Inc., 575 F.3d 1120, 1133 (10th Cir. 2009) (evidentiary rulings); 

Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 

2008) (motion to amend); Fowler Bros. v. Young, 91 F.3d 1367, 1377 (10th Cir. 1996) 

(motion to strike). “Applying the same standard as the district court, we review the 

court's grant of summary judgment de novo.” Frank v. U.S. West, Inc., 3 F.3d 1357, 

1365 (10th Cir. 1993). 

DISCUSSION 

A. Amendment of the complaint and evidentiary motions.

Allen attempted to amend his complaint more than two years after it was filed and 
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discovery had closed. No new information had come to light and he offered no 

explanation for the delay in requesting permission to amend. “[U]ntimeliness alone is 

sufficient reason to deny leave to amend, especially when there is no adequate 

explanation for the delay.” Id. at 1365. The district court did not abuse its discretion in 

denying Allen’s Second Motion to Amend Complaint. 

Although Allen was told at the beginning of his deposition that the court reporter 

was certified in Kansas rather than Colorado, see Fed. R. Civ. P. 28(a)(1)(A), he waited 

until after the deposition was completed and the cost of the deposition incurred before 

registering his objection. The district court properly deemed Allen’s objection to the 

court reporter’s qualification waived pursuant to Fed. R. Civ. P. 32(d)(2).6

While the defendants filed their summary judgment motion with two unsigned 

affidavits, these exhibits were supplemented the next day with signed copies. Though the 

magistrate cited to the unsigned attachments to the motion rather than the supplemental 

affidavits in his R&R for the sake of clarity, he made clear the copies were identical. The 

rules of civil procedure require a properly executed affidavit to be served with the motion 

it is intended to support, see Fed. R. Civ. P. 6(c)(2), however, a court “clearly has 

 6

 An objection based on disqualification of the officer before whom a deposition 

is to be taken is waived if not made: 

(A) before the deposition begins; or 

(B) promptly after the basis for disqualification becomes known or, with 

reasonable diligence, could have been known. 

Fed. R. Civ. P. 32(d)(2). 
- 6 - 

discretion to permit supplemental affidavits it finds useful for summary judgment 

determination.” Lighton v. University of Utah, 209 F.3d 1213, 1227 (10th Cir. 2000) 

(citing old version of Fed. R. Civ. P. 56(e)).7

 The court did not abuse its discretion in 

concluding Allen was not prejudiced by the accepting the supplement. 

Finally, the magistrate judge was more than justified in striking, sua sponte, 

Allen’s “affidavits.” “The court may strike from a pleading . . . any redundant, 

immaterial, impertinent, or scandalous matter. The court may act . . . on its own.” Fed. 

R. Civ. P. 12(f). As the magistrate explained: 

Doc. #133 is dated 4/22/08, and it contains 41 paragraphs of factual 

statements. Page one of Doc. #131 states “You have 10 days to reply after 

recept [sic] of this document or the affidavit date[d] 4/22/08 will be taken 

as fact.” Doc. #130 contains factual allegations and a statement that the 

plaintiff sent a copy of the affidavit dated 4/22/08 to the defendants; they 

had ten days to respond to it; they failed to respond; and their failure to 

respond to the affidavit resulted in a stipulation of the facts stated in the 

affidavit. 

It appears that the plaintiff is attempting to establish the facts of his case by 

mailing affidavits to the defendants and deeming their failure to respond as 

admissions. The Federal Rules of Civil Procedure do not provide for the 

establishment of factual matters in this manner. 

(R. Vol. 1 at 350-51.) The magistrate did not abuse his discretion in striking Allen’s 

attempt to circumvent the process established by the Rules. 

 7

 Fed. R. Civ. P. 56(e) explicitly allowed the court to “permit affidavits to be 

supplemented” by “further affidavits.” The rule has since been amended to eliminate that 

language however, there is no reason to believe the simplification of the rule in any way 

affects the court’s discretion to accept such affidavits. In any event, the version of the 

rule containing the explicit language was still in effect on March 31, 2010, the date of the 

district court’s order. 
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B. Summary Judgment and motion to proceed in forma pauperis (ifp)

“To establish a cognizable Eighth Amendment claim for failure to protect [an 

inmate from harm by other inmates], the plaintiff must show that he is incarcerated under 

conditions posing a substantial risk of serious harm[,] the objective component, and that 

the prison official was deliberately indifferent to his safety, the subjective component.” 

Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006). Allen’s conclusory 

allegations will not defeat a motion for summary judgment. Nahno-Lopez v. Houser, 625 

F.3d 1279, 1285 (10th Cir. 2010) (“Conclusory legal statements cannot preclude 

summary judgment.”). Contrary to Allen’s assertions, a policy of “dubble [sic] bunking” 

is not a constitutional violation nor is one night spent with an unhappy cellmate. (Id. at 

783.) Allen produced no competent evidence demonstrating the defendants were 

deliberately indifferent to a substantial risk of serious harm. The court properly granted 

summary judgment to defendants. 

Allen filed a motion to proceed in forma pauperis (ifp) on appeal with this Court. 8 

To proceed ifp on appeal, Allen “must show a financial inability to pay the required filing 

fees and the existence of a reasoned, nonfrivolous argument on the law and facts in 

 8

 A motion to proceed ifp on appeal, supported by required documents, 

must be made in the first instance to the district court. Fed. R. App. P. 

24(a)(1). Only if that motion is denied is there occasion to file an ifp

motion with this court. The filing must be made within 30 days after notice 

of a district court’s denial. See Fed. R. App. P. 24(a)(5). Our consideration 

of an appropriate and timely motion is not a review of the district court’s 

denial, but an original consideration. 

Boling-Bey v. U.S. Parole Comm’n, 559 F.3d 1149, 1154 (10th Cir. 2009). Although 

Allen failed to request to proceed ifp on appeal in the district court, in the interest of 

expeditious processing of appeals, we will nevertheless consider his ifp motion. 
- 8 - 

support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 

(10th Cir. 1991) (emphasis added). An appeal on a matter of law is frivolous where 

“[none] of the legal points [are] arguable on their merits.” Anders v. California, 386 U.S. 

738, 744 (1967). We have reviewed Allen’s motion to proceed ifp and solicitously 

construed his briefs in light of the district court record. His arguments are contrary to 

settled law and he makes no reasoned argument for modification of that law. We deny 

his motion to proceed ifp and remind him of his obligation to pay the filing and docket 

fees in full. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001). 

AFFIRMED. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge