Sutton v. Pounds ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 21, 2018
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Elisabeth A. Shumaker
Clerk of Court
JOSHUA LAMONT SUTTON,
Plaintiff - Appellant,
v. No. 18-1174
(D.C. No. 1:17-CV-02378-LTB)
DR. RICHARD POUNDS; MANUEL (D. Colo.)
ESPINOZA; KAREN PARTEN (OR
PORTER); LARRY MINAZUMI,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Joshua Sutton appeals the district court’s dismissal of his 42 U.S.C. § 1983suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Sutton alleges that, while he was an inmate of the Colorado Department of
Corrections (“CDOC”), he received treatment from defendants at the Colorado
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
Mental Health Institute at Pueblo (“CMHIP”). He contends that defendants
diagnosed him with mental illnesses but did not inform him of these diagnoses.
Sutton claims that he was then sent back to prison, even while other patients were
not. He further avers that he was abused in prison, both by other inmates and prison
staff.
Sutton filed a complaint in district court, alleging that defendants had violated
his Eighth Amendment rights by subjecting him to cruel and unusual punishment.
After the district court ordered Sutton to file an amended complaint, he added due
process and equal protection claims. The district court dismissed Sutton’s claims as
frivolous under 28 U.S.C. § 1915(e)(2)(B). Sutton now appeals.
II
We review the dismissal of a suit under § 1915(e)(2)(B) for abuse of
discretion. McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997).
Because Sutton is pro se, we construe his filings liberally but stop short of acting as
his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Sutton argues that the district court abused its discretion by dismissing the suit
without granting him further leave to amend. He claims that, because he had no
access to the law library at the time, he was unable to submit a proper amended
complaint. But the district court appropriately identified the factual deficiencies in
the original complaint and provided Sutton with an opportunity to correct them. See
Hall, 935 F.2d at 1110 (“[A] pro se plaintiff requires no special legal training to
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recount the facts surrounding his alleged injury, and he must provide such facts if the
court is to determine whether he makes out a claim on which relief can be granted.”).
We further conclude the district court did not err in dismissing Sutton’s
claims. Because Sutton failed to advance specific allegations that defendants
personally participated in creating his conditions of confinement, the district court
correctly held that his Eighth Amendment claim could not proceed. Henry v. Storey,
658 F.3d 1235, 1241 (10th Cir. 2011). Although Sutton contends that he was placed
in solitary confinement and housed with fellow inmates who assaulted him, he fails
to allege that defendants were involved in any housing decisions. As to his equal
protection claim, Sutton merely alleges that he was released from CMHIP and sent
back to the general prison population while other patients were not. But he has failed
to show that these other patients were similarly situated. See Brown v. Montoya, 662
F.3d 1152, 1172-73 (10th Cir. 2011). Finally, despite having been informed by the
district court’s prior order that a due process claim requires a constitutionally
protected interest in life, liberty, or property, Sutton simply noted that he was housed
in solitary confinement after having threatened to kill himself. Without more, the
district court was correct in holding that Sutton did not plead facts sufficient to state
a conditions of confinement claim under DiMarco v. Wyoming Department of
Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007).
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III
For the foregoing reasons, the district court’s order of dismissal is
AFFIRMED. Sutton’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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