                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 25, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 EMMANUEL SANAAH,

               Plaintiff-Appellant,                      No. 10-1000
          v.                                             (D. of Colo.)
 NURSE DEBB HOWELL; WARDEN                  (D.C. No. 1:08-CV-2117-REB-KLM)
 ARELLANO; MAJOR SCOTT
 GROVER, Life Safety Cordinator [sic]
 and Maintenance Supervisor;
 MAINTENANCE WORKER LT.
 BOSLEY,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


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


      Emmanuel Sanaah is a state prisoner proceeding pro se. He filed a 42

U.S.C. § 1983 claim in district court, asserting that defendants had violated his

Eighth Amendment right to be free of cruel and unusual punishment when a


      *
         This order and judgment is not binding precedent except under the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.
showerhead broke and injured his head, and the medical attention he received

was, in his opinion, inadequate. Noting its lack of subject matter jurisdiction, the

district court dismissed with prejudice the claims for monetary damages against

the defendants in their official capacities. It also dismissed without prejudice the

claims for injunctive relief against defendants in their official capacities, as well

as all claims against them in their individual capacities, for failure to state a claim

upon which relief could be granted.

      Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district

court’s decision.

                                   I. Background

      Sanaah was incarcerated at the Arkansas Valley Correctional Facility

(AVCF) in Crowley, Colorado. According to his Complaint, he was taking a

shower at the prison when the showerhead shot off and struck him in the head,

causing a gash and knocking him unconscious. After reviving him, officers

instructed Sanaah to place a towel on the wound and get dressed so they could

take him to the prison’s medical facilities.

      When Sanaah arrived at the medical department, Nurse Debb Howell

attended to him. She cleansed and bandaged his wound. When he complained of

pain and dizziness, she also gave him a regular strength Tylenol. Some time

later, with his head still bleeding and hurting, he returned to the medical

department, where, he alleges, Howell provided him more Tylenol and instructed

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him to return to his cell and take a nap. The next day, Sanaah tried again to go to

the medical department, but Howell explained that she had already seen him and

that he need not return.

        At that point, Sanaah filed a request to be seen by a doctor. Five days later,

he alleges, he was finally able to see a doctor, but his wound had become

infected. The physician’s assistant prescribed antibiotics for the infection and

medication for his continued dizziness and head pain.

        In October 2008, Sanaah filed an action pursuant to 42 U.S.C. § 1983,

asserting that defendants violated his Eighth Amendment right to be free from

cruel and unusual punishment by providing him inadequate medical care.

Specifically, Sanaah alleged (1) defendant Nurse Debb Howell was deliberately

indifferent to Sanaah’s serious medical needs when she failed to provide common

care for his head injury, resulting in an infection; (2) defendant Warden Michael

Arellano was deliberately indifferent to Sanaah’s serious medical condition, as

well as to the maintenance and installation of the showers; (3) defendant Major

Scott Grover, Maintenance Supervisor at AVCF, was deliberately indifferent to

Sanaah’s serious medical and safety needs and to the poor policies and procedures

that led to Sanaah’s injury; (4) defendant Lt. Bosley, 1 another maintenance

supervisor, was deliberately indifferent when he failed to install and inspect a


        1
            Neither the Complaint nor anything in the record indicates Bosley’s first
name.

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new showerhead properly and failed to help Sanaah get adequate medical care;

and (5) defendant Aristedes Zavaras, Executive Director, was deliberately

indifferent to Sanaah’s serious medical and safety needs because he failed to

manage and supervise his employees and ensure they provided sufficient medical

care and maintenance at AVCF.

      Defendants filed a motion to dismiss, which the district court granted. It

reasoned that it did not have jurisdiction over the defendants when they were sued

in their official capacities for monetary relief. It also reasoned that for claims

against the defendants for injunctive relief or in their individual capacities,

Sanaah had failed to state a claim on which relief could be granted. Sanaah

appeals that decision.

                                   II. Discussion

       We review de novo a district court’s dismissal of a complaint pursuant to

F EDERAL R ULE OF C IVIL P ROCEDURE 12(b)(6). Van Zanen v. Qwest Wireless,

L.L.C., 522 F.3d 1127, 1129 (10th Cir. 2008). Because Sanaah is proceeding pro

se, we must construe his pleadings liberally. Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991).

      First, the district court correctly concluded that it does not have jurisdiction

over Sanaah’s claims for monetary damages against the named defendants in their

official capacities. As we have made clear, “Neither states nor state officers sued

in their official capacity are ‘persons’ subject to suit under section 1983.”

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Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (citing Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 70–71 (1989)). Sanaah therefore may not seek

damages from defendants in their official capacities.

      State officers sued in their individual capacities, however, “are ‘persons’

subject to suit under section 1983.” Duncan, 15 F.3d at 991. Accordingly, we

consider Sanaah’s claims against the defendants in their individual capacities and

for injunctive relief. We emphasize that “[i]ndividual liability under § 1983 must

be based on personal involvement in the alleged constitutional violation.” Foote

v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997). “The Supreme Court has made

it clear that liability under § 1983 must be predicated upon a deliberate

deprivation of constitutional rights by the defendant.” Woodward v. City of

Worland, 977 F.2d 1392, 1399 (10th Cir. 1992) (quotations omitted).

      We first turn to the claims against Arellano, Grover, and Zavaras, who were

acting in a supervisory capacity. “Supervisory status alone does not create § 1983

liability.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citing

Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008)). Instead, there must

be “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.” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997)

(quotation and brackets omitted).




                                          -5-
      After a careful review of the record, we agree with the district court that

Sanaah failed to “allege any plausible individual actions attributable” to Arellano,

Grover, or Zavaras that caused his alleged injuries. R. Vol. 1, Doc. 75 at 7.

There is no allegation any of the three repaired the showerhead or participated in

Sanaah’s medical care. And there are only general and conclusory allegations,

unsupported by facts, that they showed deliberate indifference by failing to

supervise or train their employees. Sanaah has thus failed to allege sufficient

facts to state a claim against Arellano, Grover, or Zavaras.

      Regarding Bosley, we agree with the district court that the claims against

Bosley are conclusory and lack sufficient factual support. We further agree that

even after considering the allegations in the light most favorable to Sanaah, he

has failed to allege anything that would suggest Bosley was deliberately

indifferent to Sanaah’s safety. Accordingly, Sanaah has failed to state a claim

against Bosley.

      Finally, Sanaah claims Howell’s medical care was constitutionally

deficient. The Eighth Amendment “imposes duties on [prison] officials, who

must provide humane conditions of confinement; prison officials must ensure that

inmates receive adequate food, clothing, shelter, and medical care, and must ‘take

reasonable measures to guarantee the safety of the inmates,’” Farmer v. Brennan,

511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27

(1984)). Ordinarily, we must address both whether the medical care was deficient

                                         -6-
enough to qualify as a deprivation of constitutional significance and whether the

defendant intended the deprivation by acting with deliberate indifference. See

Wilson v. Seiter, 501 U.S. 294, 298–99 (1991).

      We need not reach the first question because Sanaah has failed to allege

sufficient factual detail to suggest Howell’s conduct rises to the level of

deliberate indifference. Howell cleansed Sanaah’s wound, bandaged it, twice

provided him pain relievers, and encouraged him to rest. He disagrees that this

amount of treatment was proper, but such a claim is not sufficient to suggest a

constitutional violation, much less deliberate indifference. At best, his

allegations point to negligence, which is insufficient to support an Eighth

Amendment claim.

      Accordingly, the district court was correct to dismiss the claim against

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

                                  III. Conclusion

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

dismiss Sanaah’s complaint for lack of jurisdiction and for failure to state a claim.

Additionally, we GRANT Sanaah’s motion to pay the filing fee in partial

payments and remind Sanaah that he is obligated to continue making partial

payments until he has paid the entire fee.

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Circuit Judge


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