Rule 28 Enforcement Against Pro Se Appellants: Incorporation-by-Reference and Reply-Brief Arguments Justify Dismissal of the Appeal

I. Introduction

In Davis v. Howes (10th Cir. Mar. 27, 2026), Kevin Tamar Davis, a Kansas state prisoner proceeding pro se, appealed the District of Kansas’s dismissal of his civil-rights complaint after mandatory screening under 28 U.S.C. § 1915A. Davis sued Kansas corrections and healthcare officials, alleging: (1) Eighth Amendment deliberate indifference arising from denial of a specialist referral for dental endodontic care (an apicoectomy), (2) Eighth Amendment deliberate indifference arising from denial of medical appliances (a wrist splint and medical shoes), and (3) property-related claims styled as “petit larceny,” “profiteering,” an antitrust theory, and due process violations connected to seizure of a legal satchel.

The Tenth Circuit did not reach the merits. Instead, it dismissed the appeal due to inadequate appellate briefing—principally the attempt to incorporate district-court filings by reference and the practice of saving developed arguments for the reply brief—while still granting Davis leave to proceed in forma pauperis (“IFP”) and warning him about the Prison Litigation Reform Act (“PLRA”) strike regime.

II. Summary of the Opinion

  • Appeal dismissed for noncompliance with Fed. R. App. P. 28: Davis’s opening brief failed to present developed argument with supporting authority and record citations, instead incorporating numerous district-court filings by reference and reserving substantive arguments for the reply brief. The court declined review and dismissed the appeal.
  • IFP granted despite dismissal: The court found that, notwithstanding the briefing defects, the record showed (albeit “faintly”) “the existence of a reasoned, nonfrivolous argument on the law and facts,” and granted IFP, while reminding Davis he still owes the full filing fee.
  • PLRA strike warning: The court noted Davis already had one prior strike and that the district court’s § 1915A dismissal for failure to state a claim constituted a second strike, cautioning that a third strike triggers the § 1915(g) prepayment bar absent imminent danger.

III. Analysis

A. Precedents Cited

1. Pro se liberal construction has limits

The panel framed its approach with two familiar pro se principles in tension:

  • Garrett v. Selby Connor Maddux & Janer: Pro se filings are construed liberally, but Rule 28 “applies equally to pro se litigants.” This case supplied the decisive enforcement premise: inadequate compliance with Rule 28 can “disentitle” an appellant to review.
  • Hall v. Bellmon: Courts typically excuse inartful pleading and undeveloped legal analysis by pro se litigants—an important backdrop that the panel acknowledged before enforcing the briefing rules.
  • Shrader v. Biddinger: Pro se litigants must follow the same procedural rules as represented parties. The panel used this to justify applying Rule 28 without carving out a pro se exception.

2. What Rule 28 requires (and what Davis failed to do)

The opinion emphasized that an opening brief must contain the appellant’s contentions, reasons, and citations to authorities and the record. Two cases anchored the “explain the district court’s error” requirement:

  • Nixon v. City & Cnty. of Denver: An appellant must explain what was wrong with the district court’s reasoning. The court invoked this to highlight that Davis’s opening brief did not grapple with the district court’s screening rationale.
  • Murrell v. Shalala: “Perfunctory” allegations of error do not frame an issue for review. This case reinforced that minimal or conclusory assertions do not trigger merits review.

3. Incorporation by reference is improper appellate briefing

Davis attempted to “reallege and incorporate by reference” numerous district court filings. The panel treated this as a stand-alone defect. The cited authorities established both the prohibition and its rationale:

  • 10th Cir. R. 28.3(B): The local rule expressly disapproves incorporation by reference.
  • Gaines-Tabb v. ICI Explosives, USA, Inc.: Allowing incorporation would “unnecessarily complicate” appellate review and enable circumvention of appellate page limits. The panel applied that logic directly, noting Davis’s attempted incorporation would have massively exceeded the page limit.
  • United States v. Patterson: Parties cannot satisfy Rule 28 by incorporating claims by reference to filings below. This supplied a clear “cannot do so” rule statement.
  • Fulghum v. Embark Corp.: Reinforced that incorporation by reference is “not acceptable appellate procedure,” supporting dismissal/declination of review as an appropriate consequence.

4. Arguments raised for the first time in a reply brief are generally forfeited

The panel underscored that Davis saved his developed arguments for his reply brief, triggering the longstanding rule against considering new issues on reply:

  • Stump v. Gates and Reedy v. Werholtz: These cases supplied the core rule that the court ordinarily will not consider issues raised for the first time in a reply brief.
  • Bronson v. Swensen: Clarified that arguments must be raised and adequately presented in the opening brief, reinforcing that the opening brief is the proper vehicle for developed claims of error.
  • United States v. Leffler: Explained the twin rationales: fairness to the appellee (no opportunity to respond) and protecting the court from ill-advised decisionmaking without adversarial testing.

5. Dismissal as a remedy for briefing noncompliance

The court relied on authority confirming it may dismiss an appeal for failure to follow appellate rules:

  • MacArthur v. San Juan Cnty.: It is within the court’s power to dismiss where the appellant fails to abide by appellate rules.
  • Anderson v. Hardman (7th Cir.): Pro se litigants should expect noncompliance with Rule 28 can result in dismissal—supporting that this consequence is not uniquely harsh in the pro se setting.
  • Fed. R. App. P. 3(a)(2): Confirms the court’s discretion to respond to noncompliance, including dismissal.

6. IFP standard and PLRA consequences

  • DeBardeleben v. Quinlan: Provided the standard for IFP on appeal—whether there exists a “reasoned, nonfrivolous argument on the law and facts.” The panel used it to grant IFP even while dismissing for Rule 28 defects.
  • Kinnell v. Graves: Supported two points: IFP does not eliminate the duty to pay the filing fee, and it helped frame the practical effect of the PLRA’s filing-fee and strike provisions.
  • Davis v. Newton, et al.: Cited to establish Davis’s prior PLRA strike.

7. Background authorities (Martinez report)

While not central to the dismissal, the opinion explained the district court’s screening process and use of a Martinez report:

  • Simkins v. Bruce and Martinez v. Aaron: Defined a Martinez report as a court-authorized investigative report by prison officials used to test the factual/legal basis of a pro se prisoner’s claims, particularly at screening stages.

B. Legal Reasoning

The panel’s reasoning is procedural and enforcement-oriented:

  1. Rule 28 sets the minimum threshold for appellate review. An appellant must identify errors, develop arguments, and cite supporting authority and the record. Without that, the court cannot perform meaningful review.
  2. Liberal construction does not supply missing advocacy. By citing Garrett v. Selby Connor Maddux & Janer, Hall v. Bellmon, and Shrader v. Biddinger, the court drew a line: it will read pro se papers generously, but it will not rewrite briefs, assemble arguments, or search the record unaided.
  3. Incorporation by reference undermines the appellate process. The court treated incorporation as both prohibited by rule and practically harmful: it shifts the burden of distilling issues to judges and evades page limits—concerns articulated in Gaines-Tabb v. ICI Explosives, USA, Inc..
  4. Reply-brief arguments come too late. The adversarial system requires developed contentions in the opening brief so the appellee can respond and the court can benefit from adversarial testing; United States v. Leffler supplied the policy explanation.
  5. Dismissal is an appropriate sanction/remedy. Citing MacArthur v. San Juan Cnty. and Fed. R. App. P. 3(a)(2), the panel concluded the briefing deficiencies justified dismissal rather than merits adjudication.
  6. IFP is analytically separate from merits review. Even though Davis’s appeal was dismissed procedurally, the court still evaluated IFP eligibility under DeBardeleben v. Quinlan and granted it, while emphasizing that the fee remains due under Kinnell v. Graves.
  7. PLRA strike accounting proceeds regardless of appellate dismissal. The court used the occasion to warn Davis that the district court’s § 1915A failure-to-state-a-claim dismissal counts as a strike and that a third strike triggers § 1915(g)’s prepayment bar absent imminent danger.

C. Impact

Although designated “not binding precedent” (except under law of the case, res judicata, and collateral estoppel), Davis v. Howes is a clear signal about Tenth Circuit briefing enforcement in pro se prisoner appeals.

  • Sharper consequences for “briefing by attachment.” The decision reinforces that attempting to litigate an appeal by importing district-court pleadings and motions is not merely disfavored—it can lead to outright dismissal.
  • Reply brief is not a “second opening brief.” Pro se appellants who postpone meaningful argument to the reply brief risk forfeiture and dismissal.
  • Procedural dismissal does not necessarily foreclose IFP. The court’s willingness to grant IFP while dismissing for Rule 28 defects underscores that “nonfrivolous” under § 1915(a) does not guarantee merits review if procedural prerequisites are unmet.
  • PLRA strike warnings as case-management. The court’s strike discussion functions as prospective deterrence, emphasizing the escalating consequences for repeated meritless filings (as screened under § 1915A) independent of appellate procedural outcomes.

IV. Complex Concepts Simplified

28 U.S.C. § 1915A “screening”
A required early review when a prisoner sues the government or its officials. The district court must dismiss claims that are frivolous, malicious, fail to state a claim, or seek damages from immune defendants—before the case proceeds normally.
Fed. R. App. P. 28 (briefing rules)
The rule that tells appellants what an opening brief must include—developed arguments, reasons, and citations. If the opening brief does not do this, the court may treat issues as waived/forfeited or dismiss the appeal.
“Incorporation by reference”
Instead of making arguments in the brief, the party points the appellate court to documents filed in the district court. The Tenth Circuit rejects this because appellate judges should not be required to assemble arguments from scattered filings and because it can evade page limits.
“Raised for the first time in a reply brief”
New arguments presented only after the appellee’s response. Courts generally refuse to consider them because the appellee has no chance to respond and the court loses the benefit of adversarial testing.
Martinez report
An investigative report prepared by prison officials (at the court’s direction) to help the court evaluate a pro se prisoner’s allegations during screening or early stages.
IFP (in forma pauperis)
Permission to proceed without prepaying the full filing fee upfront. It does not mean the fee is forgiven; it is typically paid over time from the prisoner’s account.
PLRA “strikes” (28 U.S.C. § 1915(g))
If a prisoner has three prior cases or appeals dismissed for specified reasons (including failure to state a claim), the prisoner generally cannot proceed IFP in new civil actions or appeals unless in imminent danger of serious physical injury.

V. Conclusion

Davis v. Howes primarily establishes (in persuasive, nonprecedential form) a firm procedural lesson: pro se status does not excuse compliance with appellate briefing requirements. The Tenth Circuit will dismiss an appeal when the opening brief relies on incorporation by reference and withholds developed arguments until the reply brief, because such practices defeat Rule 28’s function and the adversarial process. At the same time, the court’s grant of IFP—despite dismissal—illustrates that financial-access determinations can remain distinct from procedural eligibility for merits review. Finally, the opinion’s PLRA strike accounting underscores how § 1915A screening dismissals can steadily limit a prisoner’s ability to litigate future civil claims without full fee prepayment.