                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  December 4, 2014
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                    TENTH CIRCUIT                    Clerk of Court



 MARVIN K. SHUE,

          Plaintiff - Appellant,


 v.
                                                         No. 13-8064
                                               (D.C. No. 2:11-CV-00307-SWS)
 LARAMIE COUNTY DETENTION
                                                          (D. Wyo.)
 CENTER; SERGEANT PORTER,
 Laramie County Detention Center
 Deputy Sheriff, in his official
 capacity,

          Defendants - Appellees.




                              ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.




      *
             Having examined the briefs and appellate record, this panel has
decided 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      This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      Marvin Shue, proceeding pro se, 1 appeals from the district court’s dismissal

of his 42 U.S.C. § 1983 action for failure to state a claim, pursuant to Federal

Rule of Civil Procedure 12(b)(6). Mr. Shue additionally seeks leave to proceed in

forma pauperis (“IFP”) in this appeal. For the reasons that follow, we affirm the

district court’s order dismissing Mr. Shue’s action and deny him IFP status.

                                          I

      At all material times, Mr. Shue was incarcerated in pretrial detention at the

Laramie County Detention Center (“LCDC”) in Wyoming. Prior to his

incarceration at the LCDC, Mr. Shue had suffered a leg injury and undergone

surgery. Following his incarceration, he was given a post-surgery evaluation by

medical professionals, who determined that Mr. Shue should be restricted from all

physical activity and housed on a low-level floor and in a low-level bunk.

      Mr. Shue suffered three injuries to his leg during his pretrial detention.

First, on the day of a scheduled court appearance, LCDC personnel left a pair of

leg restraints on the floor of a hallway, while instructing prisoners to line up

against a wall. Mr. Shue tripped over the restraints while obeying the order to

line up, causing injuries to his neck, back, and previously-injured left leg.

      Second, following this hallway fall, the LCDC officers delayed getting Mr.


      1
             Though he was represented for much of the district court proceedings
by appointed counsel, Mr. Shue is litigating this appeal pro se. We liberally
construe his pro se filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).

                                          2
Shue medical treatment until after his court appearance, though he was obviously

limping. And, third, LCDC officers moved Mr. Shue to an upper-level floor a

few weeks after his injury and stated that they did not care about his medical

restriction to a low-level bunk and a low-level floor. While complying with the

move, Mr. Shue fell and further injured his left leg. Mr. Shue was ordered back

to a low-level cell the next morning. That evening, Sergeant Porter 2 apologized

to Mr. Shue, admitted that there was no reason for the cell move, and explained

that the move was a mistake by LCDC personnel.

      Mr. Shue filed a § 1983 prisoner civil-rights complaint naming the LCDC

and Sergeant Porter—in his official capacity—as defendants. The district court

subsequently entered an order granting Mr. Shue’s motion for appointment of

counsel. Through counsel, Mr. Shue sought, and was granted leave, to file an

amended complaint. The amended complaint is the operative complaint for

purposes of this appeal.

      Mr. Shue’s amended complaint named the LCDC and Sergeant Porter—in

his official capacity—as defendants, and contained a single claim alleging

deliberate indifference to Mr. Shue’s serious medical needs in violation of the


      2
             The district court and Mr. Shue refer to Mr. Porter as “Sergeant.” On
the other hand, in their answer brief, Appellees indicate that Mr. Porter actually is
a corporal. Consistent with our standard of review, discussed in Part II.A.1,
infra, we accept Mr. Shue’s version of the facts, and thus refer to Mr. Porter as
“Sergeant.” However, Mr. Porter’s precise rank is actually wholly immaterial to
our resolution of this appeal.

                                         3
Eighth Amendment. The defendants filed a motion to dismiss Mr. Shue’s

amended complaint for failure to state a claim upon which relief could be granted.

The district court granted this motion and dismissed Mr. Shue’s claims with

prejudice. Mr. Shue now appeals.

                                        II

                                         A

                                         1

      Mr. Shue urges us to overturn the district court’s dismissal of his action

under Federal Rule of Civil Procedure 12(b)(6). “We review de novo the grant of

a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Gee v. Pacheco,

627 F.3d 1178, 1183 (10th Cir. 2010); accord ClearOne Commc’ns, Inc. v. Biamp

Sys., 653 F.3d 1163, 1171 (10th Cir. 2011). In doing so, we “accept as true all

well-pleaded facts, as distinguished from conclusory allegations, and view those

facts in the light most favorable to the nonmoving party.” Moya v.

Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006) (internal quotation marks

omitted).

                                         2

      Proceeding under 42 U.S.C. § 1983, Mr. Shue claims deprivation of his

constitutional right under the Eighth Amendment to be free from deliberate

indifference to his serious medical needs while incarcerated. Mr. Shue’s suit

against the LCDC—a local governmental entity—is analyzed under the rubric of

                                         4
municipal liability. And, we have recognized that “[s]uing individual defendants

in their official capacities . . . is essentially another way of pleading an action

against the county or municipality they represent.” Porro v. Barnes, 624 F.3d

1322, 1328 (10th Cir. 2010).

      As relevant here, a necessary condition for holding a municipality liable

under § 1983 is the establishment of a constitutional violation by its officers or

agents. See, e.g., Trigalet v. City of Tulsa, 239 F.3d 1150, 1155–56 (10th Cir.

2001) (“[E]ven if it could be said that Tulsa’s policies, training, and supervision

were unconstitutional, the City cannot be held liable where, as here, the officers

did not commit a constitutional violation.”); accord Becker v. Bateman, 709 F.3d

1019, 1025 (10th Cir. 2013); see also Martinez v. Beggs, 563 F.3d 1082, 1091

(10th Cir. 2009) (“A county . . . cannot be held ‘liable for constitutional

violations when there was no underlying constitutional violation by any of its

officers.’” (quoting Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317–18 (10th

Cir. 2002))).

      But the commission of a constitutional violation by an officer or agent is

not sufficient. In suits against municipal entities, “[s]ection 1983 . . . rejects the

tort principle of respondeat superior and does not subject [such entities] to

vicarious liability for the acts of their employees.” Milligan-Hitt v. Bd. of Trs. of

Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219, 1223 (10th Cir. 2008); see City of

Canton v. Harris, 489 U.S. 378, 385 (1989) (“[A] municipality can be found

                                            5
liable under § 1983 only where the municipality itself causes the constitutional

violation at issue. Respondeat superior or vicarious liability will not attach under

§ 1983.”). In order for a municipality to be held liable under § 1983 for a

constitutional violation, the plaintiff must be able to establish “official policy as

the moving force of the constitutional violation.” Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694 (1978); accord Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 405 (1997); City of Canton, 489 U.S. at 389. Accordingly, when

the defendant in a § 1983 action is a municipal entity such as a city or county,

“[i]t is only when the execution of the government’s policy or custom . . . inflicts

the injury that the municipality may be held liable.” City of Canton, 489 U.S. at

385 (omission in original) (quoting Springfield v. Kibbe, 480 U.S. 257, 267

(1987) (O’Connor, J., dissenting)) (internal quotation marks omitted).

      “[W]here the policy relied upon is not itself unconstitutional, considerably

more proof than the single incident will be necessary in every case to establish

both the requisite fault on the part of the municipality, and the causal connection

between the ‘policy’ and the constitutional deprivation.” City of Okla. City v.

Tuttle, 471 U.S. 808, 824 (1985) (footnote omitted); see Butler v. City of Norman,

992 F.2d 1053, 1055 (10th Cir. 1993) (“Proof of a single incident of

unconstitutional activity is not sufficient to impose liability under [Monell],

unless proof of the incident includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be attributed to a municipal

                                           6
policymaker.” (citation omitted)); cf. Olsen, 312 F.3d at 1318 (“Although a single

incident generally will not give rise to liability, deliberate indifference may be

found absent a pattern of unconstitutional behavior if a violation of federal rights

is a highly predictable or plainly obvious consequence of a municipality’s

action.” (citation omitted) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307

(10th Cir. 1999)) (internal quotation marks omitted)).

                                          B

      “A prison official’s deliberate indifference to an inmate’s serious medical

needs is a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing

Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Although the Eighth Amendment’s

protections do not directly apply to pretrial detainees, see Bell v. Wolfish, 441

U.S. 520, 535 n.16 (1979), under the Fourteenth Amendment, pretrial

detainees—like Mr. Shue—are likewise “‘entitled to the degree of protection

against denial of medical attention which applies to convicted inmates’ under the

Eighth Amendment,” Martinez, 563 F.3d at 1088 (quoting Garcia v. Salt Lake

Cnty., 768 F.2d 303, 307 (10th Cir. 1985)); see Blackmon v. Sutton, 734 F.3d

1237, 1244 (10th Cir. 2013) (“[D]etention center officials surely owe pretrial

detainees like Mr. Blackmon at least the same standard of care prison officials

owe convicted inmates.”); Barrie v. Grand Cnty., 119 F.3d 862, 868 (10th Cir.

1997) (“The duty to provide access to medical care extends to pretrial detainees

                                          7
as well.” (internal quotation marks omitted)).

      The Estelle deliberate-indifference standard “contains both an objective and

a subjective component.” Blackmon, 734 F.3d at 1244.

             Objectively, the patient’s medical needs must be “so obvious that
             even a lay person would easily recognize the necessity for a
             doctor’s attention.” Ramos v. Lamm, 639 F.2d 559, 575 (10th
             Cir. 1980). Subjectively, the defendant-official must “know[ ] of
             and disregard[ ] an excessive risk to inmate health or safety.”
             Farmer [v. Brennan, 511 U.S. 825, 837 (1994)]. This subjective
             standard lies “somewhere between the poles of negligence at the
             one end and purpose . . . at the other.” Id. at 836. The Supreme
             Court has analogized it to criminal recklessness, to the conscious
             disregard of a “substantial risk of serious harm.” Id. at 836–38.

Blackmon, 734 F.3d at 1244–45 (first and second alterations in original)

(omission in original); see Mata, 427 F.3d at 751 (discussing objective and

subjective components of deliberate indifference to medical needs under Estelle);

Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (same). Where the

plaintiff’s deliberate-indifference claim is premised on a delay in medical care,

such delay “only constitutes an Eighth Amendment violation where the plaintiff

can show the delay resulted in substantial harm.” Mata, 427 F.3d at 751 (quoting

Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)) (internal quotation

marks omitted). This “substantial harm requirement ‘may be satisfied by lifelong

handicap, permanent loss, or considerable pain.’” Id. (quoting Garrett v.

Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).

                                         III


                                          8
                                          A

      The district court found that Mr. Shue failed to state a claim on which relief

could be granted for each of the three incidents alleged in the amended complaint

as constituting deliberate indifference. Having reviewed Mr. Shue’s amended

complaint de novo, we affirm the district court’s dismissal order. In particular, as

to the first two incidents, it is patent that Mr. Shue failed to plead cognizable

claims of deliberate indifference. And, absent the establishment of a

constitutional violation by LCDC officers, there can be no basis for municipal

liability. As to the third, relating to Mr. Shue’s movement to an upper-level floor,

even assuming arguendo that he has adequately alleged that certain LCDC

officials acted with constitutionally prohibited deliberate indifference—effecting

an Eighth Amendment violation—he has utterly failed to plead that the LCDC’s

policies were the moving force of that violation.

      First, regarding the leg restraints left on the floor, Mr. Shue essentially

alleges negligence on the part of LCDC employees, although the Supreme Court

and this court have made it very clear that mere negligence is insufficient to

establish deliberate indifference rising to the level of a cognizable Eighth

Amendment violation. See, e.g., Daniels v. Williams, 474 U.S. 327, 333 (1986)

(rejecting the notion that due-process “protections are triggered by lack of due

care by prison officials”); Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1286 (10th

Cir. 1999) (“[D]eliberate indifference is a stringent standard of fault. A showing

                                          9
of simple or even heightened negligence will not suffice.” (alteration in original)

(citation omitted) (quoting Brown, 520 U.S. at 407, 410) (internal quotation marks

omitted)). Mr. Shue alleges that an LCDC officer left a leg restraint in his path

and that an officer ordered Mr. Shue to continue walking forward, without

recognizing the potential for Mr. Shue to slip and fall. Such actions reflect no

more than “ordinary lack of due care for the prisoner’s interests or safety,”

Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986))

(internal quotation marks omitted), and that is not enough.

      Second, Mr. Shue’s averments concerning the LCDC officials’ delay in

getting him medical treatment following his fall on the day of his court

appearance objectively fail to evince deliberate indifference because Mr. Shue has

not alleged any resulting harm, much less “substantial harm.” Sealock, 218 F.3d

at 1210; accord Mata, 427 F.3d at 751; Garrett, 254 F.3d at 950. He has simply

alleged in conclusory fashion that the delay “constitut[ed] deliberate indifference

to [his] serious medical needs.” R., Vol. 1, at 147 (Am. Compl., filed Nov. 14,

2012). That averment is plainly insufficient.

      Lastly, regarding the incident involving his relocation to an upper-level

floor, even if we assume arguendo that Mr. Shue has adequately pleaded

deliberate indifference, his averments would be insufficient to plausibly establish

the liability of LCDC and Sergeant Porter, in his official capacity. In this regard,

we conclude that the district court’s analysis of the legal import of this incident is

                                          10
particularly persuasive and, in all material respects, we adopt it here. In

particular, like the district court, we conclude that Mr. Shue is hard-pressed to

show that the LCDC’s policies were the moving force of any constitutional

violation. Indeed, his express averments belie such a claim.

      Mr. Shue has specifically alleged that Sergeant Porter told him that the

move was a mistake that should not have been allowed under the LCDC’s

policies. See id. at 145 (alleging that Sergeant Porter told Mr. Shue (1) “that he

should never have been moved at all”; (2) that “there was ‘no reason’ for any of

the moves to have occurred”; and (3) “that ‘none of it should have happened’”

and “they ‘really messed up’”). Moreover, the LCDC policies that Mr. Shue

claims were implicated by this incident—which relate to inmates’ adherence to

lawful staff orders and medical restrictions—cannot reasonably be viewed as

anything other than constitutional on their face, and Mr. Shue has not alleged that

those policies have caused repeated unconstitutional infringements.

Consequently, in step with the district court, we conclude that Mr. Shue has failed

to aver sufficient facts regarding this incident to establish “a plausible claim of

relief against the [LCDC] or its officials.” Id. at 191 (Order Granting Mot. to

Dismiss, filed June 28, 2013); see Tuttle, 471 U.S. at 824.

                                          B

                                           1

      Although the amended complaint (filed with the assistance of counsel and

                                          11
thus not entitled to liberal construction) named Sergeant Porter only in his official

capacity, Mr. Shue now appears to argue pro se on appeal that he intended to

name Sergeant Porter in both his individual and official capacities. See Aplt.

Opening Br. at 8 (“Appellees are being sued as an individual, and in their official

capacity . . . .”). Section 1983 suits against government officials in their

individual capacities present a host of issues that are distinct from such actions

against officials solely in their official capacities; for example, qualified

immunity is available as a defense in an individual-capacity action, but is not

available in an official-capacity action—where the suit against the individual is

essentially a suit against the municipality. See, e.g., Brown v. Montoya, 662 F.3d

1152, 1163 & n.8, 1164 (10th Cir. 2011); see also Becker, 709 F.3d at 1022

(“While Officer Bateman is entitled to assert the qualified immunity defense, the

City is not.”). This basic point underscores why it would be entirely

inappropriate for us to even consider permitting Mr. Shue to fundamentally alter

the scope of his action on appeal to include an individual-liability claim against

Sergeant Porter. Mr. Shue cannot predicate a claim for individual liability on the

express terms of his amended complaint, and any late-blooming argument on

appeal advancing such a theory is waived. See, e.g., Tele-Commc’ns, Inc. v.

Comm’r, 12 F.3d 1005, 1007 (10th Cir. 1993) (observing “[t]he general

rule . . . that an appellate court will not consider an issue raised for the first time

on appeal”).

                                           12
                                          2

      Mr. Shue’s opening brief also could arguably be construed as making an

additional contention—viz., that it was error for the district court not to grant Mr.

Shue leave to amend his complaint a second time. See Aplt. Opening Br. at 9 (“I

believe that the court should have given me another chance to amend and remove

the appointed counsel and appoint new counsel who had experience in the civil

procedures.”). Insofar as Mr. Shue makes such an argument, we summarily reject

it because the record reveals that he never asked the district court for leave to

amend. See, e.g., Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180,

1186 (10th Cir. 1999) (“We . . . have held that normally a court need not grant

leave to amend when a party fails to file a formal motion.”); id. at 1186–87

(“Deriving a consistent approach from our case law, we conclude that a request

for leave to amend must give adequate notice to the district court and to the

opposing party of the basis of the proposed amendment before the court is

required to recognize that a motion for leave to amend is before it.”); cf. Albers v.

Bd. of Cnty. Comm’rs of Jefferson Cnty., --- F.3d ----, 2014 WL 6057216, at *6

(10th Cir. 2014) (“[A] bare request to amend in response to a motion to dismiss is

insufficient to place the court and opposing parties on notice of the plaintiff’s

request to amend and the particular grounds upon which such a request would be

based.”).

                                         IV

                                         13
      For the reasons presented above, we AFFIRM the district court’s order

dismissing Mr. Shue’s complaint under Rule 12(b)(6). Because Mr. Shue fails to

offer any “reasoned, nonfrivolous argument on the law and facts in support of the

issues raised on appeal,” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008)

(quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997))

(internal quotation marks omitted), we also DENY Mr. Shue’s pending motion to

proceed IFP on appeal. Mr. Shue is reminded that he remains obligated to pay the

full amount of his appellate filing fee.



                                                Entered for the Court



                                                JEROME A. HOLMES
                                                Circuit Judge




                                           14
