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

                           FOR THE TENTH CIRCUIT                         May 20, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MYOUN L. SAWYER,

             Plaintiff - Appellant,

v.                                                        No. 13-3331
                                                 (D.C. No. 5:13-CV-03201-SAC)
SHAWN SULLIVAN; THOMAS                                      (D. Kan.)
KINLEN; RICKY GOULD; LESLEY
ADAMS; VERONIQUE A.; MARK K.,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.


      Myoun L. Sawyer, proceeding pro se, appeals the district court’s dismissal of

his civil rights action brought under 42 U.S.C. § 1983.1 Mr. Sawyer, who also seeks

leave to proceed on appeal without prepayment of his appellate costs and fees (IFP),


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
      We liberally construe Mr. Sawyer’s pro se materials but do not act as his
advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
was civilly committed at Larned State Hospital when he filed this appeal.2 In his

complaint, Mr. Sawyer alleged that another patient at the hospital assaulted him with

a padlock that staff members had inadequately secured. Mr. Sawyer asserted his

Eighth Amendment rights were violated because staff members “were responsible for

unlocking the padlock from off [a] refrigerator door and allowing the other patient

access to the padlock.” Aplt. App., Vol. 1 at 4.

      On its initial screening review, the district court dismissed the case, ruling that

Mr. Sawyer’s allegations failed to state an Eighth Amendment claim. The court

explained that an Eighth Amendment claim must satisfy both objective and

subjective components: the objective element requires a sufficiently serious

deprivation, while the subjective component requires the defendant-official to “be

‘aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists[,] and . . . also draw the inference.’” Id. at 12 (quoting Farmer v.

Brennan, 511 U.S. 825, 837 (1994)). The district court concluded that Mr. Sawyer

failed to satisfy the subjective prong because his allegations suggested, at most, mere

negligence, which “is insufficient to state a claim for relief under § 1983.” Id. at 13

(citing County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“liability for


2
       The district court granted Mr. Sawyer IFP status, and on March 6, 2014, we
entered a preliminary order assessing partial fee payments. At the time he filed this
appeal, however, Mr. Sawyer was not a prisoner, so this appeal is not subject to the
fee payment provisions of 28 U.S.C. § 1915(b) or the three-strikes provision of
§ 1915(g). See Merryfield v. Jordan, 584 F.3d 923, 927 (10th Cir. 2009). We
therefore vacate our March 6, 2014 order assessing partial fee payments.


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negligently inflicted harm is categorically beneath the threshold of constitutional due

process”)).

      We review the district court’s dismissal de novo, McBride v. Deer, 240 F.3d

1287, 1289 (10th Cir. 2001), and agree that Mr. Sawyer failed to satisfy the

subjective component of his deliberate indifference claim, see Blackmon v. Sutton,

734 F.3d 1237, 1244 (10th Cir. 2013) (“the defendant-official must know of and

disregard an excessive risk to inmate health or safety” (internal quotation marks and

brackets omitted)). Mr. Sawyer’s allegations do not indicate that hospital staff knew

of and disregarded any risk of harm; instead, they indicate, at most, that staff

members were negligent in securing the lock. But as the district court recognized,

mere negligence is not enough to establish deliberate indifference. See Farmer,

511 U.S. at 835.

      Accordingly, the district court’s judgment is affirmed. Mr. Sawyer is granted

leave to proceed on appeal IFP, and our order dated March 6, 2014 assessing partial

fee payments is vacated.


                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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