F I L E D United States Court of Appeals Tenth Circuit
JAN 27 2000 UNITED STATES COURT OF APPEALS PATRICK FISHER TENTH CIRCUIT Clerk
ROBERT J. JENKINS,
Plaintiff-Appellant, No. 99-1335 v. District of Colorado DENVER COUNTY JAIL, P.O. Box- (D.C. No. 99-Z-908) 1108, Denver, Colorado, 80239; Mr. JOHN SIMONET, Director of Corrections; BONNIE C. WYATT; THE OFFICE OF THE ATTORNEY GENERAL; and MAYOR WELLINGTON WEBB,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.
Robert J. Jenkins is a prisoner in the Crowley County Correctional Facility
in Olney Springs, Colorado. Mr. Jenkins filed a pro se civil rights complaint,
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3), alleging that the
defendants violated his Eighth Amendment right against cruel and unusual
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. punishment. Pursuant to 28 U.S.C. § 1915, Mr. Jenkins was granted to leave to
proceed in forma pauperis . The district court found that Mr. Jenkins did not
sufficiently allege an Eighth Amendment violation and failed to allege any
personal participation of defendants John Simonet, Bonnie C. Wyatt, or Mayor
Wellington Webb. As a result, the district court dismissed Mr. Jenkins complaint
as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
Mr. Jenkins sought leave from the district court to proceed in forma
pauperis on appeal, but the district court denied his request. Mr. Jenkins has
renewed his motion with this court. In order to succeed on his motion, Mr.
Jenkins must show both an inability to pay the filing fee and the existence of a
nonfrivolous issue that states a claim on which relief can be granted. See 28
U.S.C. § 1915(e)(2); Coppedge v. United States , 369 U.S. 438, 445 (1962); Ragan
v. Cox , 305 F.2d 58, 60 (10th Cir. 1962).
We have recently articulated the standards governing Eighth Amendment
claims by prisoners:
The Eighth Amendment requires prison officials to “provide humane conditions of confinement,” which includes taking “reasonable measures to guarantee the safety of inmates.” See Farmer v. Brennan , 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994) (internal quotation marks and citation omitted). An inmate claiming that officials failed to prevent harm first “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834, 114 S.Ct. 1970. Then [he] must demonstrate that the officials had a
2 “‘sufficiently culpable state of mind,’” id. (quoting Wilson v. Seiter , 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed.2d 271 (1993)) – that is, their acts or omission arose from “deliberate indifference to inmate health or safety.” Id. (internal quotation marks and citation omitted). Declining to adopt an objective definition of deliberate indifference, the Farmer Court held that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety.” Id. at 837, 114 S. Ct. 1970. “ ‘[D]eliberate indifference’ is a stringent standard of fault.” Board of County Comm’rs of Bryan County v. Brown , 520 U.S. 397, 410, 117 S. Ct. 1382, 137 L. Ed.2d 626 (1997). “A showing of simple or even heightened negligence will not suffice.” Id. at 407, 117 S. Ct. 1382.
Giron v. Corrections Corp. of Am. , 191 F.3d 1281, 1285-86 (10th Cir. 1999).
“[A]n official’s failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation,” will not satisfy the
deliberate indifference standard of the Eighth Amendment. Farmer , 511 U.S. at
838.
Construing Mr. Jenkins’ pro se complaint liberally, see Perkins v. Kansas
Dept. of Corrections , 165 F.3d 803, 806 (10th Cir. 1999), he alleges the
following: he was assaulted by a fellow inmate during a basketball game and, as
a result, suffered serious injuries to his leg; the security camera on the basketball
court was broken at the time of the assault, thereby facilitating the attack and; in
an unrelated incident, a Denver County Jail Sheriff Deputy “assaulted” an inmate.
See Prisoner’s Civil Rights Complaint, May 10, 1999, at 3. Mr. Jenkins also
3 states in his complaint that he is “under the understanding the law enforcement
officers will have inmates with a violent criminal history to due there [sic] dirty
work for them in return for a favor.” Id. He asserts no additional facts to
substantiate this broad allegation.
Accepting the contentions in his complaint as true, we agree with the
district court that Mr. Jenkins has failed to state a claim for violation of his
Eighth Amendment rights. Specifically, the facts set forth in the complaint fail to
allege that Mr. Jenkins was incarcerated under conditions that imposed a
substantial risk of serious harm or that the prison officials knew of and
disregarded an excessive risk to inmate health and safety. Compare Snider v.
Dylag , 188 F.3d 51, 54 (2d Cir. 1999) (reversing dismissal of § 1983 action
alleging Eighth Amendment violation where plaintiff alleged that prison official
declared “open season” on him, affirmatively announcing to other inmates that he
would not impede their abuse of plaintiff); Lopez v. LeMaster , 172 F.3d 756
(10th Cir. 1999) (reversing grant of summary judgment to defendants on Eighth
Amendment claim where plaintiff prisoner alleged that when he was attacked by
cellmates there was no TV monitor, no guard in sight, and no way to call for help;
there had been at least one prior attack at the jail; inspection reports noted
deficiencies in staff and back up, training, and supervision of inmates; and the
4 defendant official had knowledge of these deficiencies and therefore was on
notice of the danger they presented).
The “deliberate indifference” test also requires that in order for a prison
official to be liable under § 1983 the official must have been personally and
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F I L E D United States Court of Appeals Tenth Circuit
JAN 27 2000 UNITED STATES COURT OF APPEALS PATRICK FISHER TENTH CIRCUIT Clerk
ROBERT J. JENKINS,
Plaintiff-Appellant, No. 99-1335 v. District of Colorado DENVER COUNTY JAIL, P.O. Box- (D.C. No. 99-Z-908) 1108, Denver, Colorado, 80239; Mr. JOHN SIMONET, Director of Corrections; BONNIE C. WYATT; THE OFFICE OF THE ATTORNEY GENERAL; and MAYOR WELLINGTON WEBB,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.
Robert J. Jenkins is a prisoner in the Crowley County Correctional Facility
in Olney Springs, Colorado. Mr. Jenkins filed a pro se civil rights complaint,
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3), alleging that the
defendants violated his Eighth Amendment right against cruel and unusual
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. punishment. Pursuant to 28 U.S.C. § 1915, Mr. Jenkins was granted to leave to
proceed in forma pauperis . The district court found that Mr. Jenkins did not
sufficiently allege an Eighth Amendment violation and failed to allege any
personal participation of defendants John Simonet, Bonnie C. Wyatt, or Mayor
Wellington Webb. As a result, the district court dismissed Mr. Jenkins complaint
as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
Mr. Jenkins sought leave from the district court to proceed in forma
pauperis on appeal, but the district court denied his request. Mr. Jenkins has
renewed his motion with this court. In order to succeed on his motion, Mr.
Jenkins must show both an inability to pay the filing fee and the existence of a
nonfrivolous issue that states a claim on which relief can be granted. See 28
U.S.C. § 1915(e)(2); Coppedge v. United States , 369 U.S. 438, 445 (1962); Ragan
v. Cox , 305 F.2d 58, 60 (10th Cir. 1962).
We have recently articulated the standards governing Eighth Amendment
claims by prisoners:
The Eighth Amendment requires prison officials to “provide humane conditions of confinement,” which includes taking “reasonable measures to guarantee the safety of inmates.” See Farmer v. Brennan , 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994) (internal quotation marks and citation omitted). An inmate claiming that officials failed to prevent harm first “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834, 114 S.Ct. 1970. Then [he] must demonstrate that the officials had a
2 “‘sufficiently culpable state of mind,’” id. (quoting Wilson v. Seiter , 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed.2d 271 (1993)) – that is, their acts or omission arose from “deliberate indifference to inmate health or safety.” Id. (internal quotation marks and citation omitted). Declining to adopt an objective definition of deliberate indifference, the Farmer Court held that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety.” Id. at 837, 114 S. Ct. 1970. “ ‘[D]eliberate indifference’ is a stringent standard of fault.” Board of County Comm’rs of Bryan County v. Brown , 520 U.S. 397, 410, 117 S. Ct. 1382, 137 L. Ed.2d 626 (1997). “A showing of simple or even heightened negligence will not suffice.” Id. at 407, 117 S. Ct. 1382.
Giron v. Corrections Corp. of Am. , 191 F.3d 1281, 1285-86 (10th Cir. 1999).
“[A]n official’s failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation,” will not satisfy the
deliberate indifference standard of the Eighth Amendment. Farmer , 511 U.S. at
838.
Construing Mr. Jenkins’ pro se complaint liberally, see Perkins v. Kansas
Dept. of Corrections , 165 F.3d 803, 806 (10th Cir. 1999), he alleges the
following: he was assaulted by a fellow inmate during a basketball game and, as
a result, suffered serious injuries to his leg; the security camera on the basketball
court was broken at the time of the assault, thereby facilitating the attack and; in
an unrelated incident, a Denver County Jail Sheriff Deputy “assaulted” an inmate.
See Prisoner’s Civil Rights Complaint, May 10, 1999, at 3. Mr. Jenkins also
3 states in his complaint that he is “under the understanding the law enforcement
officers will have inmates with a violent criminal history to due there [sic] dirty
work for them in return for a favor.” Id. He asserts no additional facts to
substantiate this broad allegation.
Accepting the contentions in his complaint as true, we agree with the
district court that Mr. Jenkins has failed to state a claim for violation of his
Eighth Amendment rights. Specifically, the facts set forth in the complaint fail to
allege that Mr. Jenkins was incarcerated under conditions that imposed a
substantial risk of serious harm or that the prison officials knew of and
disregarded an excessive risk to inmate health and safety. Compare Snider v.
Dylag , 188 F.3d 51, 54 (2d Cir. 1999) (reversing dismissal of § 1983 action
alleging Eighth Amendment violation where plaintiff alleged that prison official
declared “open season” on him, affirmatively announcing to other inmates that he
would not impede their abuse of plaintiff); Lopez v. LeMaster , 172 F.3d 756
(10th Cir. 1999) (reversing grant of summary judgment to defendants on Eighth
Amendment claim where plaintiff prisoner alleged that when he was attacked by
cellmates there was no TV monitor, no guard in sight, and no way to call for help;
there had been at least one prior attack at the jail; inspection reports noted
deficiencies in staff and back up, training, and supervision of inmates; and the
4 defendant official had knowledge of these deficiencies and therefore was on
notice of the danger they presented).
The “deliberate indifference” test also requires that in order for a prison
official to be liable under § 1983 the official must have been personally and
directly responsible for the occurrence of the alleged Eighth Amendment
violation. See Grimsley v. MacKay , 93 F.3d 676, 679 (10th Cir.1996); Mitchell
v. Maynard , 80 F.3d 1433, 1441 (10th Cir.1996). We conclude, for substantially
the same reasons as the district court, that Mr. Jenkins failed to allege any
personal participation of Mr. Simonet, Ms. Wyatt, or Mayor Webb.
Because Mr. Jenkins has failed to state a claim on which relief may be
granted, we deny his motion for leave to proceed on appeal without prepayment of
costs or fees. For purposes of counting “prior occasions” under 28 U.S.C. §
1915(g), we remind Mr. Jenkins that a prisoner may not “bring a civil action or
appeal a judgment in a civil action or proceeding under this section [without full
advance payment of the filing fee] if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.” 28
5 U.S.C. § 1915(g); see Jennings v. Natrona Cty. Detention Center , 175 F.3d 775,
778-79 (10th Cir. 1999). This appeal is, therefore, DISMISSED.
Entered for the Court,
Robert H. Henry Circuit Judge