Full Opinion

Appellate Case: 25-3197 Document: 22-1 Date Filed: 10/28/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 28, 2026 _________________________________ Christopher M. Wolpert Clerk of Court THOMAS L. WILSON, Plaintiff - Appellant, v. No. 25-3197 (D.C. No. 5:23-CV-03030-EFM-TJJ) ROBERT K. WALLACE; (D. Kan.) CHAD D. CLEMONS, Defendants - Appellees. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HOLMES, Chief Judge, MORITZ and FEDERICO, Circuit Judges. _________________________________ Pro se prisoner Thomas Wilson brought civil rights claims against two Kansas corrections officers. The district court granted the officers’ motion to dismiss the complaint and denied Wilson’s motion for appointment of counsel. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm because Wilson fails to address the basis of the district court’s dismissal. 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-3197 Document: 22-1 Date Filed: 10/28/2026 Page: 2 BACKGROUND 1 Wilson is incarcerated at the El Dorado Correctional Facility (“EDCF”) in Kansas. His complaint alleged that in February 2022, he had multiple seizures in his cell resulting in physical injury. Wilson’s cellmate pushed an alert button in the cell, and Defendant Chad Clemons, other EDCF officers, and a nurse responded. Clemons radioed for permission to conduct a forced cell entry, 2 but Defendant Robert Wallace denied the request due to Wilson’s history of weapons possession. As Clemons and the other officers remained just outside the cell, Wilson had a second seizure. At that point, his cellmate dragged him to the door so he could be restrained, permitting the nurse to enter the cell to examine him. Wilson filed a pro se lawsuit against Clemons and Wallace, alleging claims under 42 U.S.C. § 1983 for Eighth Amendment deliberate indifference and First Amendment retaliation, 3 as well as a state-law negligence claim. He also moved for 1 We glean the facts underlying this appeal from Wilson’s complaint and its exhibits, since they are not included in the opening brief. 2 Wilson described EDCF’s forced cell entry protocol—which Defendants allegedly failed to observe—as follows: If any offender is having [a] medical emergency and a medical code is called but the offender is not physically able to come to the door to be restrained so he can be “medically [assessed,]” then 5 officers are suppose[d] to restrain my [cellmate] . . . , open the cell door, come in with the safety shield . . . , restrain me and then have medical staff properly [assess] me. R. vol. 1 at 16 (underlining omitted). 3 Although Wilson did not explicitly allege First Amendment retaliation, the district court construed the complaint to include this claim. An exhibit to the complaint suggested that Wallace’s rationale for refusing to allow EDCF staff to (footnote continues below) 2 Appellate Case: 25-3197 Document: 22-1 Date Filed: 10/28/2026 Page: 3 appointment of counsel. The district court denied the motion to appoint counsel without prejudice but, after screening the complaint as required by 28 U.S.C. § 1915A(a), it concluded that a responsive pleading was warranted. Defendants’ response came in the form of a motion to dismiss or, in the alternative, for summary judgment. Thereafter, Wilson filed various motions—including a renewed motion to appoint counsel—but none of his filings addressed Defendants’ motion to dismiss. The district court granted Defendants’ motion and dismissed the complaint. It determined that Wilson’s official-capacity claims were barred by Eleventh Amendment sovereign immunity. As to his individual-capacity claims, the court concluded that Wilson had not plausibly alleged a First Amendment retaliation claim, and that Defendants were entitled to qualified immunity from his Eighth Amendment deliberate indifference claim. Then, because no federal claims remained, the court declined to exercise jurisdiction over the state-law negligence claim. This appeal timely followed. 4 enter the cell—Wilson’s weapons history—was pretextual. Wilson theorized that, in fact, his access to medical aid was blocked in retaliation for his prior complaint against Wallace under the Prison Rape Elimination Act. See R. vol. 1 at 33–34. 4 Judgment entered on October 30, 2023, but Wilson did not file a formal notice of appeal until two years later, on October 27, 2025. Despite this timeliness issue, we may maintain appellate jurisdiction if “other papers filed within the time period for filing the notice of appeal provide the functional equivalent of what Rule 3 requires.” Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119 F.3d 847, 849 (10th Cir. 1997) (internal quotation marks omitted). And here, on November 8, 2023—within 30 days of judgment as required by Fed. R. App. P. 4(a)(1)(A)— Wilson filed a motion to proceed in forma pauperis on appeal. We liberally construe his motion as the functional equivalent of a notice of appeal; as such, we deem the appeal timely. See Fleming v. Evans, 481 F.3d 1249, 1253–54 (10th Cir. 2007). 3 Appellate Case: 25-3197 Document: 22-1 Date Filed: 10/28/2026 Page: 4 ANALYSIS I. Inadequate Presentation We construe pro se papers liberally, and we typically make allowances for a pro se party’s inartful pleading and legal analysis. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Here, Wilson identifies two issues on appeal 5—the district court “violated [his] constitutional rights to have [immediate] and proper medical care,” and it “denied [his] motion for appointment of counsel.” Aplt. Br. at 2. As to his Eighth Amendment claim, Wilson asserts that Defendants “acted with deliberate indifference to [his] serious medical needs,” Aplt. Br. at 3, but this conclusory assertion is unaccompanied by any record citations, legal authority, or explanation of how the district court erred. Wilson’s challenge to the district court’s denial of his motion to appoint counsel is similarly unsupported by argument. 6 In short, his filings don’t “explain what was wrong with the reasoning 5 Wilson’s opening brief doesn’t mention the district court’s rulings on Defendants’ entitlements to sovereign immunity and qualified immunity, nor does it acknowledge his dismissed First Amendment retaliation claim. So we deem those issues waived. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020). 6 Wilson’s opening brief included no argument on the denial of his request for appointed counsel. But after Defendants filed their response brief, he addressed this ruling in a supplemental letter to the court. See Dkt. No. 20. Noting the lack of prejudice to Defendants from its untimeliness, we liberally construe this letter as Wilson’s reply brief. Still, we generally don’t consider arguments made for the first time in an appellant’s reply brief. See United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). And even if we did, the bare statement contained in Wilson’s reply brief is insufficient. He says, “[i]t is important for [him] to have an appointed attorney as a matter of law,” and then quotes the district court’s (correct) observation that the decision whether to appoint counsel is a matter within the district court’s (footnote continues below) 4 Appellate Case: 25-3197 Document: 22-1 Date Filed: 10/28/2026 Page: 5 that the district court relied on” in dismissing the complaint. Nixon v. City & Cnty. of Denv., 784 F.3d 1364, 1366 (10th Cir. 2015). Although we are mindful of Wilson’s pro se status, we can’t disregard his failure to engage with the district court’s reasoning for its dismissal. See id. at 1369 (“[W]e affirm the district court’s dismissal of [plaintiff’s] claim because [plaintiff’s] opening brief contains nary a word to challenge the basis of dismissal . . . .”); Garrett, 425 F.3d at 840–41 (explaining that, like any litigant, pro se appellants must assert the district court’s error and identify supporting arguments). Accordingly, we affirm the district court’s dismissal of Wilson’s complaint and its denial of his motion to appoint counsel. II. Related Motions Wilson appears to request appointed counsel for his appeal. See Aplt. Br. at 4. But “[c]ourts are not authorized to appoint counsel in § 1983 cases; instead, we may only ‘request’ an attorney to take the case.” Rachel v. Troutt, 820 F.3d 390, 396 (10th Cir. 2016) (quoting 28 U.S.C. § 1915(e)(1)). When deciding whether to make this request, “we consider the merits of the claims, the nature of the claims, [the party’s] ability to present the claims, and the complexity of the issues.” Id. at 397. “It is not enough that having counsel appointed would [assist Wilson] in presenting his strongest possible case, as the same could be said in any case.” Steffey v. Orman, discretion. Dkt. No. 20 at 1. But the argument ends there—he never explains why the district court’s discretionary decision not to appoint counsel was incorrect. 5 Appellate Case: 25-3197 Document: 22-1 Date Filed: 10/28/2026 Page: 6 461 F.3d 1218, 1223 (10th Cir. 2006) (internal quotation marks and brackets omitted). More is necessary. See, e.g., McCarthy v. Weinberg, 753 F.2d 836, 839–40 (10th Cir. 1985) (district court’s denial of appointed counsel to pro se plaintiff with multiple sclerosis, failing eyesight, unpredictable hearing, and communication deficits “resulted in a trial which was fundamentally unfair”). Given the “small number of attorneys . . . available to accept these requests,” we must tender them carefully. Rachel, 820 F.3d at 397. Here, the district court identified significant obstacles for Wilson to prevail on the merits of his claims. It pinpointed issues with Eleventh Amendment immunity for his official-capacity claims, temporal proximity for his First Amendment retaliation claim, and qualified immunity—on both prongs of the analysis—for his Eighth Amendment deliberate indifference claim. Wilson suggests that he can’t proceed pro se because he has “never practiced law” and has “mild intellectual disabilities.” Aplt. Br. at 4 (underlining omitted); see id. at 5. But many litigants with limited abilities find themselves asserting claims similar to Wilson’s without the benefits of legal training or intellectual prowess. We aren’t persuaded that the merits, Wilson’s abilities, the nature of the claims, or the complexity of the issues warrant appointment of counsel. We thus deny Wilson’s request for appointed appellate counsel. Finally, we grant Wilson’s motion to proceed in forma pauperis (IFP) on appeal. 6 Appellate Case: 25-3197 Document: 22-1 Date Filed: 10/28/2026 Page: 7 CONCLUSION For the foregoing reasons, we affirm the district court’s dismissal of Wilson’s complaint and its denial of Wilson’s motion for appointment of counsel, we deny Wilson’s request for appointed counsel on appeal, and we grant his IFP motion. Entered for the Court Nancy L. Moritz Circuit Judge 7