Failure to Argue Plain Error Waives New Appellate Issues—Even for Pro Se Prisoners: A Tenth Circuit Reaffirmation in Rhodes v. Wyoming Department of Corrections

Introduction

This commentary analyzes the Tenth Circuit’s unpublished order and judgment in Rhodes v. Wyoming Department of Corrections, No. 24-8086 (10th Cir. Sept. 24, 2025). The panel (Judges McHugh, Kelly, and Federico) affirmed the district court’s judgment in a 42 U.S.C. § 1983 action brought by pro se prisoner Marty Wayne Rhodes against the Wyoming Department of Corrections (WDOC) and several officials and officers. The appeal arose after a combination of (a) prisoner civil-rights claims dismissed at the 28 U.S.C. § 1915A screening stage and (b) remaining claims resolved at summary judgment when Rhodes did not respond to the defendants’ motion.

The core appellate issues were procedural: whether the court would consider new arguments raised for the first time on appeal where the appellant did not argue plain error; and whether a pro se prisoner’s appellate brief that effectively reproduces allegations from the complaint without engaging the district court’s reasoning suffices to obtain reversal. The Tenth Circuit answered no on both counts, reaffirming that pro se litigants must adhere to the same rules of preservation and briefing as represented parties.

Parties and posture:

Appellant: Marty Wayne Rhodes (pro se prisoner).
Appellees: WDOC and officials/staff including Assistant Warden Jennifer Bohn, Warden Seth Norris, Daniel Shannon, Officer Stephen Scarbrough, and Housing Director Carl Voigtsberger (with additional personnel referenced in the screening order).
Claims: First Amendment retaliation (denial of phone access allegedly in response to prior litigation), Eighth Amendment cruel and unusual punishment, and issues arising from a prior strip search incident and PREA complaint. Several claims were screened out; others proceeded to summary judgment.
Disposition below: The district court dismissed some claims under § 1915A and later granted summary judgment to the remaining defendants when Rhodes did not respond to their motion.

The court exercised jurisdiction under 28 U.S.C. § 1291 and submitted the case without oral argument under Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The order is nonprecedential but citable for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Summary of the Opinion

The Tenth Circuit affirmed across the board. It held:

Arguments first raised on appeal are reviewed only for plain error; if an appellant does not argue plain error, those arguments are waived—even for pro se litigants. Rhodes did not argue plain error as to new appellate contentions regarding his surviving claims (retaliation against Bohn and Shannon and an Eighth Amendment deliberate-indifference claim against Norris), so those arguments were deemed waived.
Even if not waived, the appellate brief failed to engage the district court’s stated reasons for granting summary judgment; it largely copied the amended complaint’s allegations. That is inadequate appellate briefing and warrants affirmance.
As to claims dismissed at screening (e.g., against Officer Scarbrough, Housing Director Voigtsberger, and personnel involved in the phone-access dispute), Rhodes’s brief did not challenge the district court’s reasons. The court therefore affirmed those dismissals as well.

The panel reiterated that while pro se filings are liberally construed, courts cannot serve as counsel for the litigant, construct arguments, or comb the record for reversible error.

Analysis

Precedents Cited and Their Influence

Ledbetter v. City of Topeka, 318 F.3d 1183 (10th Cir. 2003): The court reaffirmed that pro se filings are construed liberally. This leniency allows some flexibility with formalities but does not eliminate core appellate requirements. Ledbetter sets the tone: the court will read Rhodes’s submissions charitably, but not rewrite arguments for him.
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005): Two pivotal holdings from Garrett guided the outcome:
- Pro se litigants must follow the same procedural rules as other parties; the court cannot act as their advocate by constructing arguments or searching the record.
- Merely listing issues or authorities without analysis and record citations is not adequate briefing. This directly underpinned the panel’s conclusion that Rhodes’s brief—largely a paste from his complaint—failed to show reversible error.
Richison v. Ernest Group, Inc., 634 F.3d 1123 (10th Cir. 2011): The cornerstone preservation case in the Tenth Circuit. It establishes that arguments raised for the first time on appeal are subject to plain-error review, and if the appellant does not invoke and satisfy plain error, the arguments are waived. The panel applied Richison to hold that Rhodes’s new arguments were waived because he did not argue plain error.
Reedy v. Werholtz, 660 F.3d 1270 (10th Cir. 2011): Reedy teaches that appellate courts will not address a district court’s reasoning when the appellant’s opening brief does not challenge it. That principle supported affirmance of both the screening dismissals and the summary-judgment ruling.
Nixon v. City & County of Denver, 784 F.3d 1364 (10th Cir. 2015): Nixon emphasizes that an appellant’s “first task” is to explain why the district court was wrong; a bare list of issues or an argument copied from lower-court filings does not substitute for legal analysis. The panel quoted this rationale in concluding Rhodes’s briefing was inadequate.
Meek v. Martin, 74 F.4th 1223 (10th Cir. 2023): Meek confirms that repeating arguments the district court already rejected, without engaging the reasons for rejection, fails to meet the appellant’s burden. The panel cited Meek to reinforce that Rhodes’s strategy—copying his amended complaint—did not demonstrate error.

The panel also referenced routine procedural authorities governing submission without oral argument (Fed. R. App. P. 34; 10th Cir. R. 34.1(G)), and nonprecedential status (Fed. R. App. P. 32.1; 10th Cir. R. 32.1).

Legal Reasoning

The Tenth Circuit’s reasoning proceeds in three clear steps:

Scope of Review and Preservation: The court first delineated its review posture. New arguments raised on appeal are subject to plain-error review. Under Richison, the appellant must argue plain error; otherwise, the new arguments are waived. Rhodes’s appellate brief introduced new arguments on the claims that survived screening (retaliation against Bohn and Shannon and an Eighth Amendment deliberate-indifference claim against Norris), but he never invoked plain-error review. Consequently, those arguments were waived. The court emphasized that this rule applies identically to pro se litigants (Garrett).
Adequacy of Appellate Briefing: Even apart from waiver, the court assessed whether Rhodes explained why the district court erred. He did not. His “argument” section largely replicated his amended complaint, omitted analysis of the district court’s reasoning, cited no record support to overcome summary judgment, and failed to meet the “first task” described in Nixon. Under Garrett, a mere recitation of allegations and authorities without developed analysis is inadequate. Under Meek, repackaging arguments already rejected below, without grappling with the rejection, fails the appellant’s burden.
Screening Dismissals and Summary Judgment: - Screening dismissals (§ 1915A): The district court dismissed several claims for failure to state a claim, including the Eighth Amendment claim against Officer Scarbrough (conduct not objectively harmful enough), and retaliation claims relating to phone access where Rhodes failed to follow the phone-approval procedure and did not plausibly allege retaliatory motive. On appeal, Rhodes did not address the district court’s reasons. Under Reedy, that omission requires affirmance.
- Summary judgment on the surviving claims: The district court granted summary judgment to Assistant Warden Bohn, Daniel Shannon, and Warden Norris after Rhodes failed to respond to their motion. On appeal, Rhodes offered new arguments without invoking plain error (Richison) and otherwise failed to show why the district court was wrong (Nixon, Meek). The panel therefore affirmed.

Impact and Practical Significance

Although nonprecedential, Rhodes is a forceful application of established Tenth Circuit doctrines with immediate practical implications for prisoner civil-rights litigation and pro se appellate practice:

Strict enforcement of preservation and briefing norms for pro se litigants: Rhodes underscores that pro se status does not dilute core appellate rules. New arguments need a plain-error pathway; inadequate briefing invites affirmance. The decision will likely be cited persuasively to oppose late-raised theories and to insist on rigorous appellate engagement with the district court’s grounds.
Consequences of failing to respond to summary judgment: While the panel focused on appellate defects rather than district-court rules about unopposed motions, the practical message is unmistakable: not responding to a properly supported summary-judgment motion leaves the record one-sided and makes appellate reversal highly unlikely, particularly when the appellant then fails to address the district court’s rationale.
Prison litigation specifics—retaliation and phone-access disputes: The district court’s screening analysis (left undisturbed) highlights recurring proof problems: plaintiffs must plausibly allege retaliatory motive and overcome obvious legitimate reasons (here, failure to follow the phone-number approval procedure). This order signals that conclusory assertions of retaliation, without concrete motive evidence and compliance with institutional procedures, will not survive screening or summary judgment.
Eighth Amendment threshold: The screening dismissal of the Eighth Amendment claim against Officer Scarbrough rests on the “objectively harmful enough” threshold for constitutional violations. While the panel did not revisit that determination, its affirmance reinforces the high bar for converting objectionable conduct into an Eighth Amendment violation absent objective severity.
Unpublished but citable: Under Fed. R. App. P. 32.1, Rhodes can be cited for persuasive value. Expect it to appear in briefs addressing forfeiture/waiver, plain-error requirements in civil appeals, and the inadequacy of complaint-style appellate briefing.

Complex Concepts Simplified

Section 1983: A federal vehicle allowing individuals to sue state actors for violations of federal rights (e.g., First and Eighth Amendments).
28 U.S.C. § 1915A screening: Courts must screen prisoner complaints against governmental entities and dismiss those that are frivolous, malicious, or fail to state a claim. This is an early merits filter, akin to Rule 12(b)(6).
First Amendment retaliation (in prison): Generally requires (1) protected activity (e.g., filing grievances/litigation), (2) an adverse action that would chill a person of ordinary firmness, and (3) a causal link (retaliatory motive). Legitimate penological reasons can defeat the claim.
Eighth Amendment “objectively harmful enough” standard: To state a cruel-and-unusual-punishment claim, the alleged conduct must be objectively serious and, for deliberate-indifference claims, coupled with a subjective state of mind reflecting disregard of a known substantial risk.
PREA (Prison Rape Elimination Act): A federal statute aimed at eliminating sexual abuse in confinement settings. PREA establishes standards and investigative obligations but does not itself create a private right of action; litigants typically proceed under § 1983 and the Eighth Amendment for constitutional violations. (The panel did not adjudicate PREA merits here.)
Summary judgment: A judgment entered when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Failing to respond allows the movant’s factual assertions to stand uncontroverted (subject to local rules and the court’s duty to ensure entitlement as a matter of law).
Waiver vs. forfeiture and plain error: Forfeiture typically refers to failing to raise an argument in time. On appeal, the Tenth Circuit permits review of forfeited issues only for plain error if the appellant argues it. Failure to argue plain error amounts to waiver—an intentional relinquishment of review. Rhodes did not argue plain error, so his new appellate contentions were waived.
Adequate appellate briefing: An appellant must explain why the district court erred, engage the actual reasons given, cite the record, and develop legal analysis. Copying a complaint or prior filing is not enough.
Unpublished decisions: Not binding precedent (except under law-of-the-case, res judicata, and collateral estoppel), but citable for persuasive value under Rule 32.1.

Conclusion

Rhodes v. Wyoming Department of Corrections is a clear, practical reaffirmation of Tenth Circuit appellate norms: pro se status does not excuse an appellant from preservation requirements or from providing an adequately reasoned and record-supported brief. New arguments raised for the first time on appeal must be couched in a plain-error framework; otherwise, they are waived. And an appellant’s first job is to demonstrate error in the district court’s actual reasoning—merely reasserting allegations or pasting in the complaint fails that task.

Substantively, the order leaves intact the district court’s screening conclusions (including the lack of an Eighth Amendment violation in the alleged strip-search episode and the absence of plausible retaliation where legitimate phone-access procedures were not followed), and it affirms summary judgment on the surviving claims after the appellant did not respond below and did not mount a cognizable challenge on appeal.

For litigants and counsel alike, Rhodes delivers crisp lessons: preserve issues, respond to dispositive motions, build a record, and brief with precision. For courts and practitioners in the Tenth Circuit, it serves as a ready citation on waiver, plain error, and the demands of adequate appellate briefing—principles that, applied consistently, shape the outcome of many prisoner civil-rights appeals.