FILED

United States Court of Appeals

Tenth Circuit

December 15, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KENNETH EUGENE BARRETT,

Plaintiff-Appellant,

v.

JOHNNY PHILPOT, Sheriff of

Sequoyah County, Oklahoma;

TRAVIS GABBERT, Deputy/Jailor;

JOHN BUDDY HAMILTON,

Supervising/Commanding Officer

Tactical Team, Oklahoma Highway

Patrol, Troop C; MICHAEL

HENDRICKS, Deputy/Jailor; SHANE

MCHALE, Deputy/Jailor; GARY

PHILPOT, Chief of Police, City of

Sallisaw, Oklahoma; SEQUOYAH

COUNTY JAIL, Sequoyah County

Oklahoma, and JOHN DOE #1,

Oklahoma Highway Patrol Officer,

Oklahoma Highway Patrol, Troop C,

Defendants-Appellees.

No. 09-7008

(D.C. No. 6:05-CV-00329-FHS-SPS)

(E.D. Okla.)

ORDER

Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.

This matter is before the court on appellant’s petition for rehearing and

rehearing en banc. Upon consideration, the petition for rehearing is granted in

part, and we issue an amended order and judgment to reflect two modifications
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made to our original order and judgment filed on November 2, 2009. In all other

respects, the petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service. As no member of the panel and no

judge in regular active service on the court requested that the court be polled, that

petition is denied.

The November 2, 2009, order and judgment is withdrawn and a copy of the

panel’s amended order and judgment is attached to this order. 

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk
* 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(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not binding precedent, except under the doctrines of law of the case, res judicata,

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

December 15, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KENNETH EUGENE BARRETT,

Plaintiff-Appellant,

v.

JOHNNY PHILPOT, Sheriff of

Sequoyah County, Oklahoma;

TRAVIS GABBERT, Deputy/Jailor;

JOHN BUDDY HAMILTON,

Supervising/Commanding Officer

Tactical Team, Oklahoma Highway

Patrol, Troop C; MICHAEL

HENDRICKS, Deputy/Jailor; SHANE

MCHALE, Deputy/Jailor; GARY

PHILPOT, Chief of Police, City of

Sallisaw, Oklahoma; SEQUOYAH

COUNTY JAIL, Sequoyah County

Oklahoma, and JOHN DOE #1,

Oklahoma Highway Patrol Officer,

Oklahoma Highway Patrol, Troop C,

Defendants-Appellees.

No. 09-7008

(D.C. No. 6:05-CV-00329-FHS-SPS)

(E.D. Okla.)

AMENDED

ORDER AND JUDGMENT*
*

(...continued)

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. 

-2-

Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.

Kenneth Eugene Barrett, a federal prisoner appearing pro se and in forma

pauperis, appeals from the district court’s entry of judgment in favor of

defendants in his civil rights suit filed under 42 U.S.C. § 1983. We reverse and

remand with respect to defendants Gary Philpot and Michael Hendricks. In all

other respects, we affirm.

I.

Mr. Barrett was arrested at his residence in the early morning hours of

September 24, 1999, after he initiated a gun battle with state and federal law

enforcement officers attempting to execute a no-knock search warrant issued by

the District Court of Sequoyah County, Oklahoma. Mr. Barrett was shot several

times by officers. He fired nineteen shots at them, hitting Oklahoma Highway

Patrol Officer John Hamilton, who survived, and killing Oklahoma Highway

Patrol Officer Rocky Eales. Mr. Barrett was subsequently convicted on both state

and federal charges related to the shootings. 
-3-

Mr. Barrett is currently a federal prisoner housed in USP-Terre Haute,

Indiana, but he was tried on the Oklahoma state charges first and was housed in

Oklahoma jails until the end of February 2006. After he initially was given

medical treatment for his gunshot wounds at a hospital, he was held at the

Sallisaw City Jail until after his arraignment on September 29, 1999. He was then

transported to the old Sequoyah County Jail, where he remained in defendant

Johnny Philpot’s custody, awaiting his state trial, until October 2003. When

Mr. Barrett was booked into the Sequoyah County Jail in September 1999, two

bullets remained in his body, in his hip and knee. The bullet in his knee was

removed in November 1999. Defendants report that as of March 5, 2008,

however, the other bullet was still in his hip.

Mr. Barrett mailed his original civil rights complaint on August 1, 2005,

and it was filed on August 9, 2005, nearly six years after his arrest. See R.,

Doc. 1, at 1, 5. In that initial complaint, which was never served, Mr. Barrett

named only two defendants—Johnny Philpot, the Sheriff of Sequoyah County,

and Travis Gabbert, a jailor at the Sequoyah County Jail. See id. at 1-2. The

district court granted Mr. Barrett leave to proceed in forma pauperis (ifp), id.,

Doc. 4, and then entered a Minute Order directing Mr. Barrett to file an amended

complaint on the proper form, id., Doc. 5. 

Mr. Barrett mailed his first amended complaint on October 13, 2005, and it

was filed on October 20, 2005. Id., Doc. 6, at 1, 5. Although he included the
1 Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978) (en banc)

(per curiam).

-4-

same claims as before, he named only Johnny Philpot as a defendant. Id. at 1-2. 

Defendant Johnny Philpot was served and filed an answer. In August 2006, the

district court entered a minute order denying Mr. Barrett’s two motions asking the

court to stay the suit and direct defendant Johnny Philpot to prepare a Martinez1

report. Id., Doc. 38. Proceedings continued.

Mr. Barrett mailed his second amended complaint on September 5, 2006,

and it was filed on September 11, 2006, more than a year after he had filed his

original complaint. See id., Doc. 43, at 1, 28. Mr. Barrett again named

Johnny Philpot and Travis Gabbert as defendants, but he also added several new

defendants—Gary Philpot, the Chief of Police of the City of Sallisaw; the

Sequoyah County Jail; Michael Hendricks and Shane McHale, both jailors at the

Sequoyah County Jail; and John Hamilton and John Doe #1, Oklahoma Highway

Patrol Officers. Id. at 1. Because Mr. Barrett had been granted ifp status, the

magistrate judge promptly entered a minute order directing the clerk of the court

to issue summonses for the named defendants and deliver them to the U.S.

Marshal for service. Id., Doc. 46. No summons was issued for either Sequoyah

County Jail or John Doe #1. See generally id., Docs. 46, 48-52. The summonses

for defendants Michael Hendricks and Gary Philpot were returned unexecuted on

October 13, 2006. Id., Docs. 57, 58. The other defendants were served.
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On May 11, 2007, the district court entered an order granting

Officer Hamilton’s motion to dismiss because the claims against him did not

relate back to Mr. Barrett’s original complaint, and they were therefore barred by

Oklahoma’s two-year statute of limitations. Id., Doc. 77, at 4-5. The court

rejected Mr. Barrett’s argument that he was entitled to equitable tolling because

he had not established that he was denied access to a law library, as he asserted,

and because his lack of legal knowledge, by itself, is not grounds for equitable

tolling. Id. at 3-4. The court also stated that Mr. Barrett “failed to establish that

it was his lack of legal knowledge which caused an untimely petition to be filed.” 

Id. at 4. The district court denied Mr. Barrett’s two subsequent motions for

appointment of counsel in orders filed on November 26, 2007, and January 8,

2008. Id., Docs. 102, 109. 

On November 6, 2007, the district court entered a minute order directing

Mr. Barrett to serve any parties not already served within thirty days. Id.,

Doc. 99. On September 23, 2008, more than two years after Mr. Barrett filed his

second amended complaint, the district court entered a minute order directing

Mr. Barrett to show cause why defendants John Doe, Michael Hendricks,

Gary Philpot, and Sequoyah County Jail should not be dismissed for his failure to

timely serve them. Id., Doc. 144. Mr. Barrett filed a response, making an

argument with respect to defendants Gary Philpot and Michael Hendricks only. 

Id., Doc. 147, at 1, 5. He argued that because he had been granted leave to
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proceed ifp, he was responsible only for providing the district court with the

information he had to identify and serve the defendants, and it was the district

court’s responsibility under Fed. R. Civ. P. 4(c)(3) to direct the U.S. Marshal to

serve the summonses on these defendants and to ask the Marshal about his

reasonable efforts to serve them when the summonses were returned unexecuted. 

See generally R., Doc. 147. The district court dismissed these four defendants in

a minute order entered on November 18, 2008, without expressly considering

Mr. Barrett’s argument for good cause. Id., Doc. 148.

The district court then considered the motion for summary judgment filed

by the remaining three defendants—Johnny Philpot, Travis Gabbert, and

Shane McHale. Id., Doc. 130. In an order filed on January 29, 2009, the court

rejected Mr. Barrett’s argument that he was entitled to equitable tolling to excuse

his delay in filing his second amended complaint, id., Doc. 160, at 16-17, and

held that all but one of Mr. Barrett’s numerous claims were barred by the

applicable two-year statute of limitations, id. at 4-17. In the same order, the court

determined that there was no merit to Mr. Barrett’s remaining claim, which

involved an allegation that defendant Johnny Philpot violated Mr. Barrett’s rights

under the Eighth Amendment by failing to grant him outdoor exercise privileges

during two months of his pretrial detention in 2003. Id. at 17-18. 

The district court promptly entered judgment, and Mr. Barrett filed this

appeal. Defendants Johnny Philpot, Travis Gabbert, and Shane McHale filed their
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bill of costs on February 13, 2009. Id., Doc. 166. Mr. Barrett timely mailed his

objections on February 18, 2009, id., Doc. 171, at 4, and the clerk entered an

order taxing costs against Mr. Barrett in favor of defendants on March 4, 2009,

id., Doc. 173. 

II.

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Martinez v. Beggs,

563 F.3d 1082, 1088 (10th Cir. 2009). Summary judgment should be granted “if

the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We also review

dismissals under Fed. R. Civ. P. 12(b)(6) de novo. Howard v. Waide, 534 F.3d

1227, 1242-43 (10th Cir. 2008). “[O]ur review of a dismissal for untimely

service is for an abuse of discretion[.]” FDIC v. Oaklawn Apts., 959 F.2d 170,

173 (10th Cir. 1992). Under an abuse of discretion standard, we will not reverse

unless we have “a definite and firm conviction that the lower court made a clear

error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Walker v. UPS, Inc., 240 F.3d 1268, 1272 (10th Cir. 2001)

(quotation omitted). 
-8-

Mr. Barrett’s arguments on appeal lack clarity. Nevertheless, we construe

his briefs liberally and “have tried to discern the kernel of the issues [ ]he wishes

to present on appeal.” de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). 

We have deciphered his issues as best we can. In issues 1-4 and 7, Mr. Barrett

argues that the district court erred in granting summary judgment to defendants

Johnny Philpot, Travis Gabbert, and Shane McHale. Mr. Barrett contends that the

district court erroneously held that his second amended complaint did not

supersede his original complaint, that all but one of the claims stated in his

second amended complaint did not relate back to the date of filing of his original

complaint, that he had not shown extraordinary circumstances warranting

equitable tolling of his claims that did not relate back, and that all but one of his

claims were therefore barred by Oklahoma’s two-year statute of limitations. 

Mr. Barrett also contends that the district court erred in rejecting his remaining

claim on the merits by improperly making credibility determinations in favor of

defendants. Mr. Barrett also asserts that the district court abused its discretion by

denying his requests for a Martinez report without stating any reasons for the

denial, and by denying him permission to file a surreply in opposition to the

motion for summary judgment because defendants made new arguments in their

reply. In his other issues, Mr. Barrett argues that: (5) the district court erred in

holding that the “continuing violations” doctrine did not apply to his claims

against Johnny Philpot for denying his request to have the bullet surgically
-9-

removed from his hip, for denying him exercise, and for denying him access to

legal materials or someone trained in the law; (6) the district court abused its

discretion in denying his two motions for appointment of counsel without stating

any reasons based on the applicable legal standards; (8) the district court erred in

dismissing the unserved defendants John Doe, Michael Hendricks, and

Gary Philpot without analysis; (9) the district court’s order taxing costs in favor

of defendants Johnny Philpot, Travis Gabbert, and Shane McHale should be set

aside on remand; and (10) he has met his heavy burden of demonstrating that the

district court was biased against him and should be recused on remand. 

III.

We discuss Mr. Barrett’s issues in the order we find convenient. We first

note that Mr. Barrett has made no argument that the district court improperly

dismissed his claims against Officer Hamilton, and that dismissal is affirmed

without discussion. 

Mr. Barrett’s sixth issue asserting that the district court abused its

discretion in denying his two motions for appointment of counsel without stating

any reasons based on the applicable legal standards is without merit. The district

court denied Mr. Barrett’s first request for appointment of counsel in a minute

order that gave no reasons. See R., Doc. 102. But any uncertainty about the

court’s reasoning was settled when the court denied Mr. Barrett’s renewed request
-10-

in an opinion and order which summarized the court’s reasons for denying

appointed counsel. See id., Doc. 109. Mr. Barrett has not challenged the court’s

reasoning, and the orders denying appointment of counsel are therefore affirmed.

We conclude that there is some merit to Mr. Barrett’s eighth issue asserting

that the district court erred in dismissing the unserved defendants John Doe,

Michael Hendricks, and Gary Philpot in a minute order that provided no analysis. 

At the outset, we note that Mr. Barrett has made no argument in his opening brief

on appeal with respect to defendant Sequoyah County Jail, and when he

responded to the district court’s show cause order, he made no arguments related

to either defendant Sequoyah County Jail or defendant John Doe. See R.,

Doc. 147, at 1, 5. Any arguments as to those defendants are therefore waived,

Fischer v. Forestwood Co., Inc., 525 F.3d 972, 978 n.2 (10th Cir. 2008), and the

dismissal of those defendants is affirmed. 

As for defendants Michael Hendricks and Gary Philpot, we conclude that

the district court abused its discretion by dismissing these two defendants in a

minute order that provided no explanation. Under Fed. R. Civ. P. 4(m), “‘[i]f

good cause [for improper service] is shown, the plaintiff is entitled to a

mandatory extension of time. If the plaintiff fails to show good cause, the district

court must still consider whether a permissive extension of time may be

warranted.’” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1111 (10th Cir. 2008)

(quoting Espinoza v. United States, 52 F.3d 838, 841 (10th Cir. 1995)). “Indeed,
-11-

a court must expressly consider a plaintiff’s argument regarding good cause,

because ‘[w]ithout anything in the record to indicate how the district court made

its determination with respect to the good cause exception . . . appellate review is

impossible.’” Id. (quoting ARW Exploration Corp. v. Aguirre, 45 F.3d 1455,

1459 (10th Cir. 1995)). The district court rejected Mr. Barrett’s argument for

good cause without explanation and without making any inquiry of the U.S.

Marshal to find out why defendants Gary Philpot and Michael Hendricks were not

served. We hold that the district court abused its discretion in dismissing

defendants Michael Hendricks and Gary Philpot for Mr. Barrett’s failure to timely

serve them without making an inquiry of the U.S. Marshal and providing a reason

for its decision. We remand the case for further proceedings with respect to these

two defendants.

Most of Mr. Barrett’s remaining arguments, issues 1-5 and 7, concern the

district court’s grant of summary judgment in favor of the remaining three

defendants, Johnny Philpot, Travis Gabbert, and Shane McHale. We reject

Mr. Barrett’s arguments and affirm the grant of summary judgment for the

reasons stated by the district court in its January 29, 2009, order. See R.,

Doc. 160. The district court carefully reviewed the claims stated in Mr. Barrett’s

second amended complaint and explained why most of them were time-barred,

why Mr. Barrett was not entitled to equitable tolling to excuse his delay, and why

the continuing violations doctrine did not apply to toll the statute of limitations on
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some of his claims. See id. at 1-17. The district court also clearly explained why

defendant Johnny Philpot was entitled to summary judgment on the sole claim

that was not time-barred. See id. at 17-18. We find no error in the district court’s

explanations. 

We also reject Mr. Barrett’s argument that the district court abused its

discretion in denying his two requests for a Martinez report to be filed without

stating any reasons for the denials. We have never held that a plaintiff may make

a motion for a district court to direct a defendant to file a Martinez report, so it

was unnecessary for the district court to give a reason for the denials. Nor are we

persuaded that the district court abused its discretion in denying Mr. Barrett leave

to file a surreply. Mr. Barrett also challenges the award of costs, but we lack

jurisdiction over that order. Although Mr. Barrett timely filed objections to

defendants’ bill of costs, R., Doc. 171, he did not file an amended notice of

appeal after the clerk entered the order awarding costs on March 4, 2009. 

Because Mr. Barrett did not file a timely notice of appeal from that order, we lack

jurisdiction to review it. Morris v. Adams-Millis Corp., 758 F.2d 1352, 1356

& n.5 (10th Cir. 1985).

Finally, we reject Mr. Barrett’s cursory argument that he has established

the district court’s bias and prejudice against him because of the district court’s

use of minute orders and alleged erroneous assessment of the facts, and

defendants’ alleged successful resistance to Mr. Barrett’s discovery requests. 
-13-

“Unfavorable judicial rulings do not in themselves call into question the

impartiality of a judge.” United States v. Mendoza, 468 F.3d 1256, 1262

(10th Cir. 2006). Mr. Barrett does not explain how defendants’ actions in

discovery impugn the district court’s impartiality.

The judgment of the district court is AFFIRMED in part and REVERSED

in part, and the case is REMANDED for further proceedings consistent with this

order and judgment.

Entered for the Court

Bobby R. Baldock

Circuit Judge