                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS                      December 4, 2018
                                  TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court


 HESHIMO YAPHET CARR,

              Plaintiff - Appellant,

 v.                                                       No. 18-1196
                                                 (D.C. No. 1:17-CV-02944-LTB)
 EL PASO COUNTY, COLORADO;                                  (D. Colo.)
 CORRECT CARE SOLUTIONS;
 BAMBI CREEK, HSA CORRECT
 CARE SOLUTIONS,

              Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HOLMES, MATHESON, and EID, Circuit Judges.


      Plaintiff-Appellant Heshimo Yaphet Carr filed an action pursuant to 42

U.S.C. § 1983 alleging that Defendants-Appellees El Paso County, Colorado (“El

Paso County”), Correct Care Solutions, and Ms. Bambi Creek were deliberately



      *
              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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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judgment is not binding precedent, except under the doctrines of law of the case,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.
indifferent to his broken foot while he was detained at El Paso County’s jail. The

district court dismissed the case as legally frivolous pursuant to 28 U.S.C.

§ 1915A(b). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude

that Mr. Carr has plausibly alleged an Eighth Amendment violation against Ms.

Creek, but has failed to plausibly allege the requisite personal involvement to

support his Eighth Amendment claims against either El Paso County or Correct

Care Solutions. We thus affirm in part, reverse in part, and remand the case

for further proceedings.

                                         I

      Mr. Carr was a pretrial detainee in El Paso County’s jail. 1 El Paso County

had contracted with Correct Care Solutions to supply the jail with medical

providers; Ms. Creek was one of them. Though Mr. Carr had a broken foot and

had been ordered by “UC Health Doctors” 2 to “remain in [a medical] boot and [to]

place no weight on” the foot, “[o]n or about March 24 – April 30 2017,” Ms.

Creek “order[ed] that [Mr. Carr] lose access to” the medical boot, as well as his

wheelchair and crutches. R. at 122; see also id. at 130. This order was “against

express[] UC Health [Doctors’] written orders.” Id. at 130. The “decision to

remove all supports forced [Mr. Carr] to hobble on [his] broke[n] foot,” resulting

      1
             These allegations come from Mr. Carr’s second amended complaint,
the operative one here. R. at 119–32 (Prisoner Compl., filed Mar. 26, 2018).
      2
           The second amended complaint does not further specify the identity
of “UC Health Doctors.”

                                         2
in “new breaks in bones of [the] broke[n] foot,” “lasting damage,” “intensified

pain, [and] trouble healing proper[ly].” Id. at 122. A follow-up x-ray

demonstrated the fresh breaks.

      Mr. Carr alleges that Ms. Creek, in ordering the complete removal of his

foot supports, “acted knowingly, oppressively and abusively, showing deliberate

indifference.” Id. at 130. He likewise alleges that “Correct Care Solutions and

. . . [Ms.] Creek showed complete indifference and lack of concern for the care or

healing of [his] damaged foot,” and that “[t]his is a clear case of negligent

medical attention and treatment.” Id. at 122. Moreover, Mr. Carr alleges that he

is suing Correct Care Solutions “for their part in enabling [Ms.] Creek the

authority she had to violate [him] and injure [him],” and El Paso County “for

hiring Correct Care Solutions to do medical care on [him] and not giving [him]

access to any other provider.” Id. at 125.

      Mr. Carr filed a § 1983 complaint in state court. El Paso County removed

the case to federal court. A federal magistrate judge sua sponte reviewed the

complaint pursuant to § 1915A, which compels the district court to review “a

complaint in a civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

The magistrate judge twice ordered Mr. Carr to file an amended complaint with

additional factual detail. After Mr. Carr filed his second amended complaint, the

district judge dismissed the case as legally frivolous pursuant to § 1915A(b),

                                          3
stating that Mr. Carr had not alleged “a cognizable medical treatment claim under

the Eighth Amendment” since he “fail[ed] to allege specific facts that demonstrate

any Defendant personally participated in the alleged deliberate indifference to his

serious medical need.” R. at 135–36 (Dist. Ct. Order, dated Apr. 6, 2018).

                                           II

      “[A] complaint, containing as it does both factual allegations and legal

conclusions, is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). “This court reviews frivolousness

dismissals for an abuse of discretion.” Conkle v. Potter, 352 F.3d 1333, 1335 n.4

(10th Cir. 2003). However, when, as here, the district court’s decision turns on “a

legal issue,” “we must review” that decision de novo. Id.; see Young v. Davis,

554 F.3d 1254, 1256 (10th Cir. 2009) (reviewing de novo a dismissal pursuant to

§ 1915A(b) that was based on the legal determination that the prisoner’s

complaint did not state a claim upon which relief could be granted). This is

because “a district court always abuses its discretion when it errs on a legal

question, and we decide the presence or absence of legal error de novo.” El

Encanto, Inc. v. Hatch Chile Co., Inc., 825 F.3d 1161, 1162 (10th Cir. 2016);

accord Dronsejko v. Thornton, 632 F.3d 658, 671 (10th Cir. 2011).

      Thus, we ask whether Mr. Carr’s second amended complaint contains

sufficient facts to “state a claim to relief that is plausible on its face,” taking all

well-pleaded facts, but not conclusory allegations, as true and construing them in

                                            4
the light most favorable to him. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

      Finally, “we must construe a pro se appellant’s complaint liberally,” and

“[d]ismissal of a pro se complaint for failure to state a claim is proper only where

it is obvious that the plaintiff cannot prevail on the facts he has alleged and it

would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d

1214, 1217–18 (10th Cir. 2007) (quoting first Gaines v. Stenseng, 292 F.3d 1222,

1224 (10th Cir. 2002), and then Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir.

2001)). However, though we liberally construe Mr. Carr’s pro se complaint, we

do not act as his advocate. See, e.g., Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005).

                                          III

      Reviewing Mr. Carr’s second amended complaint, we conclude that he has

plausibly alleged an Eighth Amendment violation against Ms. Creek, but has

failed to state such a claim against either El Paso County or Correct Care

Solutions because he improperly (albeit tacitly) seeks to hold them liable for the

actions of their employees under a respondeat superior theory.

                                           A

                                           5
      “[T]he treatment a prisoner receives in prison and the conditions under

which he is confined are subject to scrutiny under the Eighth Amendment.”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v. McKinney, 509

U.S. 25, 31 (1993)). “The Fourteenth Amendment’s Due Process Clause entitles

pretrial detainees to the same standard of medical care owed to convicted inmates

under the Eighth Amendment.” Rife v. Okla. Dep’t of Pub. Safety, 854 F.3d 637,

647 (10th Cir. 2017). “The Supreme Court has established a two-pronged test for

deliberate indifference claims.” Id. Under that test, “a prison official violates the

Eighth Amendment [1] only if the deprivation to which the prisoner has been

subjected is ‘objectively sufficiently serious’ and [2] only if the prison official

has a ‘sufficiently culpable state of mind.’” Grissom v. Roberts, 902 F.3d 1162,

1174 (10th Cir. 2018) (quoting Farmer, 511 U.S. at 834).

      With respect to the first prong, “[a] medical need is sufficiently serious if it

is one that has been diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would easily recognize the necessity for a

doctor’s attention.” Requena v. Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018)

(quoting Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)). Correct Care

Solutions and Ms. Creek assume for purposes of this appeal that Mr. Carr’s

condition constituted “a serious medical need.” Correct Care Solutions & Ms.

Creek Resp. Br. at 12.

      With respect to the second, subjective prong, the prison official must act

                                          6
with “‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at

834 (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1991)). To satisfy this

standard, the prison official must know of and disregard “an excessive risk to

inmate health or safety.” Requena, 893 F.3d at 1215 (quoting Mata, 427 F.3d at

751). That is, “the official must [have been] both . . . aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he

must [have] also draw[n] the inference.” Id. (alterations in original) (quoting

Mata, 427 F.3d at 751).

      “But a misdiagnosis, even if rising to the level of medical malpractice, is

simply insufficient under our case law to satisfy the subjective component of a

deliberate indifference claim.” Self v. Crum, 439 F.3d 1227, 1234 (10th Cir.

2006); see Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999)

(“A negligent failure to provide adequate medical care, even one constituting

medical malpractice, does not give rise to a constitutional violation.”).

“Moreover, a prisoner who merely disagrees with a diagnosis or a prescribed

course of treatment does not state a constitutional violation.” Perkins, 165 F.3d

at 811; accord Requena, 893 F.3d at 1216.

      Finally, neither governmental entities nor private companies that

governmental entities hire to perform services in their stead—such as medical

providers—may be held liable under § 1983 for the “unconstitutional conduct of

their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676

                                          7
(citing Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 691 (1978),

for the proposition that there is “no vicarious liability for a municipal ‘person’

under 42 U.S.C. § 1983”); see Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216

(10th Cir. 2003) (explaining that Monell’s application extends to “private entities

acting under color of state law”); see also Schneider v. City of Grand Junction

Police Dep’t, 717 F.3d 760, 769–70 (10th Cir. 2013) (discussing principles of

municipal liability). Rather, they “will only be held liable for [their] own

acts—acts [they] ‘ha[ve] officially sanctioned or ordered.’” Brammer-Hoelter v.

Twin Peaks Charter Acad., 602 F.3d 1175, 1188 (10th Cir. 2010) (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)).

                                          B

      As noted, Ms. Creek assumes for purposes of this appeal that Mr. Carr’s

condition constituted “a serious medical need,” Correct Care Solutions & Ms.

Creek Resp. Br. at 12, and so, with respect to her, we are only concerned with the

subjective prong of the deliberate-indifference standard. Mr. Carr alleges that he

arrived at the prison with a broken foot and in possession of a medical boot, a

wheelchair, and crutches. He further alleges that Ms. Creek ordered these

supports taken from him, thus forcing him to hobble around on his broken foot.

He also alleges that the decision to remove the boot, wheelchair, and crutches was

“against expressed U.C. Health [Doctors’] written orders.” R. at 130.

      These allegations “allow[] the court to draw the reasonable inference” that

                                          8
Ms. Creek had actual knowledge of Mr. Carr’s serious medical need. Iqbal, 556

U.S. at 678. In particular, Mr. Carr’s possession of a medical boot and

wheelchair were facts that would have been obvious to Ms. Creek, and “facts

from which the inference could be drawn that a substantial risk of serious harm

exist[ed]”—specifically, that removal of these supports would further injure Mr.

Carr’s foot. Requena, 893 F.3d at 1215 (quoting Mata, 427 F.3d at 751). It

would have been patent to “even a lay person” that making someone walk around

on a broken foot would expose them to further harm, id. (quoting Mata, 427 F.3d

at 751), and yet Ms. Creek nevertheless allegedly ordered these supports removed.

In our view, based on these facts, Mr. Carr has plausibly alleged that Ms. Creek

subjectively disregarded a substantial risk of serious harm to him. This case is

thus fundamentally different from cases Ms. Creek cites where “there is no

evidence to show that anyone would have known that” the detainee was at risk of

harm. See, e.g., Martinez v. Beggs, 563 F.3d 1082, 1090 (10th Cir. 2009).

Therefore, we conclude that Mr. Carr has plausibly alleged an Eighth Amendment

claim against Ms. Creek.

      Ms. Creek raises two principal arguments to the contrary. She first argues

that Mr. Carr’s “allegation [that] Ms. Creek’s alleged conduct amounted to

medical negligence is not actionable.” Correct Care Solutions & Ms. Creek Resp.

Br. at 9. While not specifically cited by Ms. Creek, she almost certainly is

referencing the second amended complaint’s allegation that this was “a clear case

                                         9
of negligent medical attention and treatment.” R. at 122.

      Ms. Creek is correct that “deliberate indifference describes a state of mind

more blameworthy than negligence.” Farmer, 511 U.S. at 835. However, in

using the term “negligent,” Mr. Carr very likely was simply attempting—albeit

inartfully and conclusorily—to affix a legal label or characterization to Ms.

Creek’s conduct. If we were inclined to focus on such characterizations, we

certainly would recognize that Mr. Carr also attached virtually obverse legal

labels when specifically describing Ms. Creek’s conduct, stating that her actions

were “intentional” and that she “showed complete indifference.” R. at 122.

These labels are facially consistent with the requisite culpable state of mind for

his Eighth Amendment claim.

      But conclusory labels are not our focus. See, e.g., Twombly, 550 U.S. at

555 (noting that “a plaintiff’s [pleading] obligation . . . requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action

will not do”); accord Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.

2012). This is especially true when plaintiffs are proceeding pro se. “[I]f the

court can reasonably read the [pro se] pleadings to state a valid claim on which

the plaintiff could prevail, it should do so despite the [pro se] plaintiff’s . . .

confusion of various legal theories . . . .” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). Notably here, notwithstanding Mr. Carr’s “confusion of various

legal theories,” id., his factual allegations indicate that Ms. Creek possessed the

                                           10
requisite culpable state of mind—more than mere negligence. His imprecise and

conclusory legal characterization of her conduct as “negligent” should not then,

standing alone, preclude his Eighth Amendment claim against her.

      Ms. Creek also argues that “the only legitimate inference that can be drawn

is that Ms. Creek had a difference in opinion concerning whether the crutches,

wheelchair, and medical boot were needed at the time she purportedly took them

from [Mr.] Carr.” Correct Care Solutions & Ms. Creek Resp. Br. at 13. While

our cases recognize the general principle that differences in medical opinions

concerning treatment are not actionable under the Eighth Amendment, those cases

typically involve prison personnel applying medical judgment in choosing

between different courses of treatment. See Self, 439 F.3d at 1234 (affirming

summary judgment in prison official’s favor when official provided medication

that alleviated some symptoms, but failed to diagnose others); Perkins, 165 F.3d

at 811 (affirming dismissal when patient was being treated with two drugs but

wanted to additionally receive a third); see also Boyett v. Cty. of Washington, 282

F. App’x 667, 676 (10th Cir. 2008) (unpublished) (affirming grant of summary

judgment when prison staff “exercise[d] [their] considered medical judgment” to

clean prisoner’s wound and provide medication instead of providing sutures

(quoting Self, 439 F.3d at 1232)).

      Here, on the other hand, Mr. Carr was completely denied all supports for

his clearly broken foot—which Ms. Creek assumes for purposes of appeal was a

                                         11
serious medical need—and there is no suggestion in the second amended

complaint that Ms. Creek provided any alternative treatment to Mr. Carr for his

foot. In our view, this is a distinction with a difference and undercuts Ms.

Creek’s argument. See Self, 439 F.3d at 1232 (“A claim is therefore actionable

only in cases where the need for additional treatment . . . is obvious. And

obviousness . . . requires direct or circumstantial evidence that can arise in

several different contexts[, including where] . . . a medical professional fails to

treat a medical condition so obvious that even a layman would recognize the

condition . . . .” (citation omitted)); Hunt v. Uphoff, 199 F.3d 1220, 1223–24

(10th Cir. 1999) (rejecting the contention that the prisoner’s allegations described

“a mere disagreement as to his medical treatment,” and holding that the Court

could not “conclude that [the prisoner] failed to allege sufficient facts to state an

Eighth Amendment claim,” where (inter alia) the prisoner alleged that “he was

denied insulin by a doctor even though it had been earlier prescribed for him by

another prison doctor,” and the denial was not reversed until over a year later,

after the prisoner had suffered a heart attack); see also Mata, 427 F.3d at 758

(“Ms. Weldon did not simply misdiagnose Ms. Mata; rather, she completely

refused to assess or diagnose Ms. Mata’s medical condition at all . . . .”); cf. Toler

v. Troutt, 631 F. App’x 545, 548 (10th Cir. 2015) (unpublished) (reversing denial

of a summary judgment motion filed by prison officials and explaining in the

process that an unpublished Tenth Circuit case was “distinguishable . . . because

                                          12
it involved a complete denial of medication, as opposed to the substitution of

alternative medicines as in this case”).

      We do not discount the possibility that on a more complete record—say, at

the summary-judgment stage—Ms. Creek may be able to demonstrate an exercise

of medical judgment that would insulate her from a claim of deliberate

indifference. That question, however, is not before us. Rather, at this juncture,

we must focus solely on the averments of Mr. Carr’s second amended complaint,

and we conclude that those averments properly plead an Eighth Amendment claim

against Ms. Creek.

      To be sure, we recognize that the district court’s order found that “Mr. Carr

fails to allege specific facts that demonstrate any Defendant personally

participated in the alleged deliberate indifference to his serious medical need.” R.

at 136. However, the court did not specifically address—as we do here—Mr.

Carr’s allegations about Ms. Creek’s involvement in ordering the supports

removed. Relatedly, the court purported to resolve Mr. Carr’s claim against Ms.

Creek on the basis that “‘[t]he established principles of municipal liability have

been found to apply to § 1983 claims brought against private corporations’

providing medical care to inmates like Correct Care Solutions and Bambi Creek.”

Id. (alteration in original) (quoting Rhodes v. Physician Health Partners, No. 09-

cv-00482-REB-KLM, 2010 WL 728213, at *5 (D. Colo. Feb. 24, 2010)

(unpublished)). But the district court never explained how municipal liability


                                           13
principles could possibly apply to bar Mr. Carr’s Eighth Amendment claim

against Ms. Creek in her individual capacity. And Ms. Creek does not make any

arguments on appeal in support of this specific aspect of the district court’s

approach. In the foregoing respects, therefore, we are not persuaded by the

district court’s reasoning.

      Based on the averments of the second amended complaint, we conclude Mr.

Carr has plausibly alleged that Ms. Creek acted towards him with deliberate

indifference and violated his Eighth Amendment rights. The district court erred

in finding to the contrary.

                                       C

      In contrast, the district court correctly determined that Mr. Carr’s claims

against Correct Care Solutions and El Paso County are frivolous. Mr. Carr

alleges that Correct Care Solutions and El Paso County were liable for Ms.

Creek’s actions because “El Paso County hired Correct Care Solutions and Bambi

Creek, [and] Correct Care hired Bambi Creek.” R. at 122. Elsewhere he alleges

that Correct Care Solutions “enabl[ed] Bambi Creek the authority she had to

violate [him] and injure [him],” and that El Paso County “hir[ed] Correct Care

Solutions to do medical care” without providing him other medical-provider

options. Id. at 125. These allegations fail to establish Correct Care Solutions’s

or El Paso County’s personal involvement in an Eighth Amendment violation;

instead, they are tacitly based solely on a respondeat superior theory. But El


                                           14
Paso County, as a governmental entity, “cannot be held liable [under § 1983] for

the acts of its employees on a theory of respondeat superior,” Brammer-Hoelter,

602 F.3d at 1188, and neither can Correct Care Solutions, a private company

acting under color of state law, see Dubbs, 336 F.3d at 1216. Instead, El Paso

County and Correct Care Solutions “will only be held liable for [their] own

acts—acts [they] ‘ha[ve] officially sanctioned or ordered.’” Brammer-Hoelter,

602 F.3d at 1188 (quoting Pembaur, 475 U.S. at 480). Because Mr. Carr made no

allegations suggesting that El Paso County or Correct Care Solutions did any such

“sanction[ing] or order[ing],” id., the claims against these defendants must be

dismissed.

                                          IV

      Finally, Mr. Carr moved to proceed in forma pauperis (“IFP”). “He is

unable to pay the filing fee, and this appeal is not frivolous. Accordingly, we

grant Mr. [Carr’s] request.” Rachel v. Troutt, 820 F.3d 390, 399 (10th Cir. 2016).

We remind Mr. Carr that this IFP status eliminates only the need for prepayment

of the filing fee and he “remains obligated to pay the filing fee in monthly

installments.” Id.; see 28 U.S.C. § 1915(b). 3

      3
             In the last line of its brief, El Paso County passingly asks for
attorney’s fees. El Paso County Resp. Br. at 13. This request is not properly
before the Court, and so we decline to address it. See F ED . R. A PP . P. 38 (“If a
court of appeals determines that an appeal is frivolous, it may, after a separately
filed motion or notice from the court and reasonable opportunity to respond,
award just damages and single or double costs to the appellee.” (emphasis
                                                                         (continued...)

                                          15
                                        V

      For the foregoing reasons, we AFFIRM the district court’s judgment as to

the dismissal of claims against El Paso County and Correct Care Solutions,

REVERSE the district court’s judgment as to the dismissal of the claim against

Ms. Creek, and REMAND for further proceedings consistent with this order and

judgment. We additionally GRANT Mr. Carr’s motion to proceed IFP.



                                     ENTERED FOR THE COURT



                                     Jerome A. Holmes
                                     Circuit Judge




      3
       (...continued)
added)); F ED . R. A PP . P. 38, advisory committee’s note to 1994 Amendment
(providing that “a statement inserted in a party’s brief that the party moves for
sanctions is not sufficient notice”); accord Abeyta v. City of Albuquerque, 664
F.3d 792, 797 (10th Cir. 2011) (denying request for sanctions under Fed. R. App.
P. 38 because party “failed to file a separate motion or notice requesting
sanctions”).

                                       16
