                                                                       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        This order and judgment is not binding precedent, except under the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

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             “‘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

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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




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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




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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




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