                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   November 2, 2010
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                         Clerk of Court
                                 TENTH CIRCUIT



 ARTHUR PRICE,

               Plaintiff-Appellant,                      No. 10-1336
          v.                                             (D. of Colo.)
 EXECUTIVE DIRECTOR OF THE                       (D.C. No. 10-cv-715-ZLW)
 COLORADO DEPARTMENT OF
 CORRECTIONS, and WARDEN OF
 THE BUENA VISTA
 CORRECTIONAL COMPLEX,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Arthur Price, a Colorado state prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint. Having

jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s decision.



      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                   I. Background

         In his complaint, Price asserted he was denied due process and equal

protection at both a prison disciplinary hearing and an administrative segregation

hearing. He also contended the conditions of confinement in administrative

segregation subjected him to cruel and unusual punishment in violation of the

Eighth Amendment. Price named the executive director of the Colorado

Department of Corrections and the prison warden of the Buena Vista Correctional

Complex as defendants.

         The magistrate judge instructed Price to file an amended complaint

clarifying the nature of his claims and alleging specific facts demonstrating that

each defendant personally participated in the deprivation of a federal right. The

magistrate judge explained that supervisory officials are not liable under § 1983

solely because their employees inflict injury on a plaintiff, see Duffield v.

Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008), and that to state a claim Price

must show an “affirmative link [] between the constitutional deprivation and

either the supervisor’s personal participation, his exercise of control or direction,

or his failure to supervise,” Butler v. Norman, 992 F.2d 1053, 1055 (10th Cir.

1993).

         In response, Price filed an amended complaint alleging the warden “was

aware of plaintiff being set up by staff [] and condoned it.” R. at 14.




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      Finding the claims legally frivolous, the district court dismissed the

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(I). The court noted Price made

no allegations connecting the executive director to his due process, equal

protection, or Eighth Amendment claims. The court also held that Price’s “vague

and conclusory allegation that individuals not named as Defendants acted with the

support of the warden of the Buena Vista facility are not sufficient to demonstrate

that the warden personally participated in the asserted constitutional violations.”

R. at 23–24. In a subsequent order, the district court denied Price’s motion to

appeal in forma pauperis.

      Price appeals the district court’s dismissal of his complaint and renews his

motion to continue in forma pauperis.

                                   II. Discussion

      Price proceeded in forma pauperis below, and is thus subject to the

strictures of § 1915. Under § 1915(e)(2)(B)(I), the district court must dismiss an

in forma pauperis complaint if it is “frivolous or malicious.” A complaint is

frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). Dismissal is only appropriate where a claim

is “based on an indisputably meritless legal theory” Fogle v. Pierson, 435 F.3d

1252, 1259 (10th Cir. 2006) (quotations omitted).

      We review a district court's dismissal for frivolousness for abuse of

discretion. Id. Because Price is a pro se litigant, we construe his pleadings and

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other papers generously. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th

Cir. 2007).

      After careful review of the record, we conclude the district court did not

abuse its discretion in dismissing Price’s complaint as frivolous. As the district

court noted, Price failed to explain how the named defendants were personally

involved in the violation of his constitutional rights, despite having been advised

that he would need to do so. His single attempt to link the warden to his claims

of due process and equal protection violations in his prison hearings is a

conclusory statement (that the warden condoned the mistreatment) unsupported by

underlying facts, and is therefore insufficient. Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991) (“[T]he court need accept as true only the plaintiff’s well-

pleaded factual contentions, not his conclusory allegations.”); see also Abbott v.

McCotter, 13 F.3d 1439, 1441 (10th Cir. 1994) (upholding dismissal of

conclusory equal protection claim for frivolousness).

                                 III. Conclusion

      For the foregoing reasons we AFFIRM the dismissal of Price’s § 1983

claims. We also DENY Price’s motion to proceed in forma pauperis on appeal

and order him to pay the full amount of the filing fee. We remind him of his




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obligation to pay the filing fee even on an appeal that has been dismissed. See

Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).

                                                   Entered for the Court

                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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