                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           July 26, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
MASALA JAMES,

      Plaintiff - Appellant,

v.                                                        No. 18-6025
                                                  (D.C. No. 5:14-CV-00146-HE)
KEITH IVENS; CORRECTIONS                                  (W.D. Okla.)
CORPORATION OF AMERICA,

      Defendants - Appellees,

                         _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Proceeding pro se, 1 Masala James appeals the district court’s order

(1) granting summary judgment to Corrections Corporation of America (CCA) and

Keith Ivens (collectively, the defendants) on James’ Eighth Amendment claim and

(2) dismissing James’ conspiracy claim with prejudice. We affirm the district court’s

order and deny James’ motion to proceed in forma pauperis (IFP) on appeal.


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument wouldn’t 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 isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
       1
         Because James appears pro se, we liberally construe his filings. See
Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). But we won’t act as his
advocate. See id.
                                     Background

      This appeal arises from events that occurred while James was an inmate at the

North Fork Correctional Facility, a private Oklahoma prison owned by CCA. At the

time of the events, Ivens “was the regional medical director for CCA.” R. vol. 2, 253.

According to James—who was then suffering from Coccidioidomycosis 2—Ivens

denied him adequate medical care when he wrongly “denied [James’] request for

Fluconazole.” R. vol. 3, 78.

      As a result, James sued the defendants under 42 U.S.C. § 1983, alleging that

(1) they violated the Eighth Amendment by demonstrating deliberate indifference to

his serious medical needs and (2) they conspired to violate his constitutional rights.

The defendants moved for summary judgment, and the district court referred the

matter to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B).

      The magistrate judge recommended (1) granting the defendants’ motion for

summary judgment on James’ deliberate-indifference claim and (2) dismissing his

conspiracy claim with prejudice. In doing so, the magistrate judge first pointed out

that the record indicated “Ivens’ decision not to prescribe Fluconazole was based on

his professional medical judgement.” R. vol. 3, 80. And although James expressed

“‘disagree[ment]’ with the evidence relating to the basis for [Ivens’] decision,” James

“present[ed] no more than his own speculation and conjecture” to support that

disagreement. Id. Thus, the magistrate judge concluded, James failed to identify a

genuine issue of material fact sufficient to defeat the defendants’ motion for


      2
         Coccidioidomycosis is a “fungal infection” that is “otherwise known as
‘valley fever.’” R. vol. 3, 75 & n.2.
                                          2
summary judgment on his deliberate-indifference claim against Ivens. And because

James failed to establish that Ivens violated his constitutional rights, the magistrate

judge reasoned that James necessarily couldn’t “impose liability against” CCA under

a theory of municipal liability. Id. at 82.

       Finally, the magistrate judge acknowledged that the defendants failed to

discuss James’ conspiracy claim in their motion for summary judgment.

Nevertheless, because the defendants were entitled to summary judgment on James’

underlying deliberate-indifference claim, the magistrate judge sua sponte

recommended dismissing James’ conspiracy claim with prejudice. See 28 U.S.C.

§ 1915(e)(2)(B)(ii) (requiring court to dismiss if it determines IFP action fails to state

claim upon which relief can be granted); Thompson v. City of Lawrence, 58 F.3d

1511, 1517 (10th Cir. 1995) (“We have already determined, however, that [plaintiff]

has failed to establish the existence of any constitutional violations. Since an

essential element of the conspiracy claim is absent, the allegation fails.”).

       The district court then adopted the magistrate judge’s recommendations in full;

granted the defendants’ motion for summary judgment on James’ deliberate-

indifference claim; and dismissed James’ conspiracy claim with prejudice. James

appeals.




                                              3
                                         Analysis

         We review de novo the district court’s order granting summary judgment to

the defendants on James’ deliberate-indifference claim, “drawing all reasonable

inferences and resolving all factual disputes in [James’] favor.” Birch v. Polaris

Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (quoting Yousuf v. Cohlmia, 741

F.3d 31, 37 (10th Cir. 2014)). Likewise, we review de novo the district court’s

decision to dismiss James’ conspiracy claim with prejudice under § 1915(e)(2)(B)(ii).

See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).

         On appeal, James advances two arguments. First, he asserts that the district

court erred in granting the defendants’ motion for summary judgment on his

deliberate-indifference claim because, according to James, no reasonable medical

professional “would ‘discontinue’ [F]luconazole” under the facts present here. Aplt.

Br. 4.

         “To defeat a motion for summary judgment, evidence, including testimony,

must be based on more than mere speculation, conjecture, or surmise.” Bones v.

Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). As the district court

pointed out, James didn’t identify below any evidence in the record that might

support his assertion that no reasonable medical professional “would ‘discontinue’

[F]luconazole” under the facts present here. Aplt. Br. 4. Instead, James “offered

. . . only his ‘own speculation and conjecture.’” R. vol. 3, 102 (quoting id. at 80).

And he likewise fails to direct our attention to any such evidence on appeal.

Accordingly, we conclude that the district court didn’t err in granting the defendants’

motion for summary judgment on James’ deliberate-indifference claim.
                                             4
       Next, James asserts that the district court erred in dismissing his conspiracy

claim with prejudice. In support, he points out that “the magistrate judge raised the

[conspiracy] issue sua sponte.” Aplt. Br. 3. But that fact didn’t deprive the district

court of authority to dismiss James’ conspiracy claim. Indeed, because James

proceeded IFP below, the district court was required to dismiss “at any time if [it]

determine[d] that . . . the action . . . fail[ed] to state a claim on which relief [could] be

granted.” § 1915(e)(2)(B)(ii); see also Curley v. Perry, 246 F.3d 1278, 1283–84 (10th

Cir. 2001) (rejecting argument that “sua sponte dismissal under § 1915(e)(2)(B)(ii)

without notice or opportunity to amend” violates Constitution (footnote omitted)).

Accordingly, we reject this argument.

                                        Conclusion

       For the reasons discussed above, we affirm the district court’s order. As a final

matter, we deny James’ motion to proceed IFP on appeal. See Lister v. Dep’t of

Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“[I]n order to succeed on a motion

to proceed IFP, the movant must show a financial inability to pay the required filing

fees, as well as the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised in the action.”).




                                              Entered for the Court


                                              Nancy L. Moritz
                                              Circuit Judge




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