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

                             FOR THE TENTH CIRCUIT                         November 21, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CHARLES DALE WILKINS,

      Plaintiff - Appellant,

v.                                                           No. 16-7024
                                                (D.C. No. 6:15-CV-00190-RAW-SPS)
JERRY CHRISMAN; COURTNY REED;                                (E.D. Okla.)
CAROLE M. DENTINA; VIVEK
KHETPAL; BRENDA BIRCHFIELD,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________

      Plaintiff-Appellant Charles Wilkins, a state inmate proceeding pro se, appeals

from the district court’s order dismissing his civil rights action under Fed. R. Civ. P.

12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I.     Background

      Mr. Wilkins is incarcerated at the Mack Alford Correctional Center (“MACC”)

in Oklahoma. In 2014, he was a passenger in a MACC transport van that collided

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
with a truck. He complained of chest, shoulder, and leg pain at the accident scene so

he was taken to a medical center for emergency care. He was then transferred to

another medical center, where he spent four days. Both facilities performed CT

scans. When he was discharged, Wilkins was instructed not to work for at least a

week and to follow a low-salt diet. After his return to MACC, he received treatment

by medical providers outside of and within MACC; nevertheless, he continued to

complain about his chest, shoulder, and abdominal areas and also about the lack of

proper medical treatment from MACC staff. Six months later, a doctor informed

Wilkins he had a broken sternum, severe left shoulder trauma requiring immediate

surgery, several broken ribs, and a chipped bone in his knee.

       Wilkins filed a civil rights complaint under 42 U.S.C. § 1983 against

Jerry Chrisman (the former warden at MACC), Courtny Reed (the Oklahoma

Department of Corrections officer who was driving the transport van during the

accident), Brenda Birchfield (a medical administrator at MACC), Dr. Carole Dentina

(the doctor at the first medical facility), and Dr. Vivek Khetpal (the doctor at the

second medical facility), suing each defendant in his or her individual and official

capacities. He asserted state-law negligence claims and violations of his Eighth and

Fourteenth Amendment rights and sought compensatory and punitive damages for his

injuries.

       Chrisman, Reed, Birchfield, and Khetpal filed a motion to dismiss, which was

granted. The district court held: (1) Wilkins could not bring an official-capacity,

state-law negligence claim against Reed (or any other defendant) because the State of

                                            2
Oklahoma is the only proper defendant under the Oklahoma Governmental Tort

Claims Act (“GTCA”); (2) the GTCA exempts Chrisman, Reed, and Birchfield from

tort liability in their individual capacities; (3) the official-capacity, § 1983 claims

against Birchfield and Chrisman are claims against the State of Oklahoma that are

precluded by the Eleventh Amendment and principles of sovereign immunity;

(4) Wilkins did not show personal participation by Chrisman and Birchfield as

required to support the alleged constitutional violations; and (5) Wilkins did not

show Khetpal was acting under color of state law as required to state a § 1983 claim.

The court declined to exercise jurisdiction over the state-law claims against Khetpal.

       Dentina was not served in accordance with Fed. R. Civ. P. 4(m). The district

court held that Wilkins did not show good cause for the lack of service and in any

event, service would be futile given his failure to demonstrate Dentina was acting

under color of state law. The court dismissed the claims against Dentina under

28 U.S.C. § 1915A(b) for failure to state a claim and imposed a “strike” under

28 U.S.C. § 1915(g).

                                     II.    Analysis

       Wilkins does not contest the district court’s dismissal of his claims against the

prison officials in their official capacities. In addition, he expressly concedes that the

prison officials are immune from tort claims in their individual capacities and that

punitive damages are inappropriate under the GTCA. See Aplt. Opening Br., Att. C.

       Wilkins raises only two issues on appeal. First, he asserts the district court

erred in dismissing his § 1983 claim for failure to demonstrate that Khetpal was

                                             3
acting under color of state law. And second, he asserts the district court erred in

dismissing his claim against Dentina for failure to comply with Rule 4(m).

A.    Claim Against Dr. Khetpal

      We review de novo the district court’s dismissal of Wilkins’ claim against

Khetpal for failure to state a claim, accepting all well-pleaded factual allegations as

true. Howard v. Waide, 534 F.3d 1227, 1242–43 (10th Cir. 2008). Because Wilkins

is proceeding pro se, “we construe his pleadings liberally.” Ledbetter v. City of

Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). But a complaint “that offers labels

and conclusions or a formulaic recitation of the elements of a cause of action” or

“tenders naked assertions devoid of further factual enhancement” will not suffice.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and brackets

omitted). We make some allowances for deficiencies, such as unfamiliarity with

pleading requirements, failure to cite appropriate legal authority, and confusion of

legal theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005). But “the court cannot take on the responsibility of serving as the

litigant’s attorney in constructing arguments and searching the record.” Id. And we

“will not supply additional factual allegations to round out a plaintiff’s complaint or

construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d

1170, 1173-74 (10th Cir. 1997).

      We affirm for substantially the same reasons provided by the district court.

“Section 1983 provides a federal civil remedy for the ‘deprivation of any rights,

privileges, or immunities secured by the Constitution’ by any person acting under

                                            4
color of state law.” McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011)

(quoting 42 U.S.C. § 1983). Khetpal is a physician at a private medical center, and

Wilkins has not pleaded sufficient facts to allow the court to reasonably infer that

Khetpal was acting under color of state law when he treated Wilkins after the

accident. See Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (“In order to hold a

private individual liable under § 1983, it must be shown that the private person was

jointly engaged with state officials in the challenged action, or has obtained

significant aid from state officials, or that the private individual’s conduct is in some

other way chargeable to the State.” (internal quotation marks and brackets omitted)).

His complaint proffers only vague and conclusory allegations to this effect, and his

appellate brief merely assumes this prerequisite to liability.

B.    Claim Against Dr. Dentina

      Wilkins contends the district court erred in dismissing his claim against the

other private doctor, Dentina, for failure to comply with Rule 4(m). This contention

lacks merit. As an initial matter, although the district court found that Wilkins did

not show good cause for his failure to serve Dentina, it actually dismissed the claim

against Dentina for failure to state a claim. See R. at 103 (“Therefore, Dr. Dentina is

dismissed without prejudice from this action, pursuant to 28 U.S.C. § 1915A(b) for

failure to state a claim upon which relief may be granted.”); id. at 104 (same).

      We agree with the district court’s reasoning. Like Khetpal, Dentina is a

physician at a private medical center. Yet here too Wilkins has not demonstrated—

through his complaint or appellate brief—that Dentina was acting under color of state

                                            5
law when she treated him. Again, his vague and conclusory allegations fail to show

this important prerequisite to § 1983 liability is plausible on its face.

       Furthermore, to the extent, if any, the untimely service of process did factor

into the dismissal, we perceive no abuse of discretion based on our careful review of

the record. See Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995) (“We

review the district court’s dismissal for untimely service for an abuse of discretion.”).

“A pro se litigant is still obligated to follow the requirements of Fed. R. Civ. P. 4.”

DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993); see also F.D.I.C. v. Oaklawn

Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (explaining that the burden of

establishing validity of service rests with the plaintiff). Wilkins did not provide the

United States Marshals with a valid address for Dentina, preventing them from

effecting service during the timeframe specified in Rule 4(m).

                                   III.   Conclusion

       The judgment of the district court is affirmed. The district court granted

Wilkins’ motion to proceed on appeal without prepayment of costs or fees. We

remind him of his obligation to continue making partial payments until his filing fee

is paid in full.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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