                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        November 3, 2014

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ARCHIE TENNANT,

              Plaintiff - Appellant,

v.                                                          No. 14-3037
                                               (D.C. No. 2:13-CV-02143-EFM-KMH)
MARK MILLER; JOHN KETRON,                                   (D. Kansas)

              Defendants - Appellees.


                             ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.


       Mr. Archie Tennant was incarcerated in two jails. At both jails, he wanted

medicines prescribed for anxiety and pain relief (Xanax and Oxycodone). Jail

officials allegedly denied the requests, and Mr. Tennant sued the sheriffs at both jails.

Through counsel, Mr. Tennant claimed violation of the Eighth Amendment and

intentional infliction of emotional distress, alleging that the sheriffs bore

*
       After examining the briefs and appellate record, the Court has determined 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       This order and judgment is not binding precedent, except under the doctrines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. But the order and judgment
may be cited for its persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
responsibility for withholding the medications and did so intentionally. The district

court dismissed the claims, holding that the allegations of “responsibility” did not

create a plausible basis for liability.1 We affirm.

I.    Standard of Review

      We review the dismissal de novo. Moya v. Schollenbarger, 465 F.3d 444, 454

(10th Cir. 2006). In conducting de novo review, we consider the standard in district

court. There the court could dismiss the complaint if it failed to state a facially

plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We examine facial

plausibility of the claim by accepting all well-pleaded allegations in the complaint

and viewing them in the light most favorable to Mr. Tennant. Moya, 465 F.3d at 455.

But we do not credit allegations consisting of mere labels or conclusions. Iqbal,

556 U.S. at 678.

II.   The Eighth Amendment

      On the Eighth Amendment claim, Mr. Tennant must show deliberate

indifference to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825,

828 (1994). The claim contains objective and subjective elements. Id. at 834.

Objectively, the deprivation must be sufficiently serious. Id. at 837. Subjectively,

the defendant must have been aware of a substantial risk of serious harm. Id.



1
      The district court thought the complaint included official-capacity claims. We
disagree. The complaint contains no mention of an official-capacity claim, and Mr.
Tennant has never said that he is asserting claims in the sheriffs’ official capacities.


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      Mr. Tennant argues that his need for the medicines was sufficiently serious.

For the sake of argument, we may assume that he is right. But nothing in the

complaint suggests any facts indicating awareness by either sheriff of a substantial

risk of serious harm.

      In the complaint, Mr. Tennant alleges that the sheriffs “were responsible for

[his] prescribed medication being withheld from him and did so intentionally.”

Complaint at 2 ¶ 9. The term “responsible” adds nothing: It simply means that the

sheriffs were “answerable or accountable” for the withholding of the medications.

See Webster’s New Universal Unabridged Dictionary 1641 (1996) (primary

definition of “responsible”); Black’s Law Dictionary 1506 (10th ed. 2014) (similar

definition). Mr. Tennant does not allege that the sheriffs ordered the medicines to be

withheld. Instead, Mr. Tennant alleges (in effect) that they were “answerable or

accountable” for withholding the medicines.

      He adds that the sheriffs “did so intentionally.” Complaint at 2 ¶ 9. But this

phrase does not help: It simply means that the sheriffs were intentionally

“answerable or accountable” for withholding the medications.

      Mr. Tennant complains that he had limited information because discovery had

been stayed. But formal discovery is rarely available before a complaint is filed. See

Fed. R. Civ. P. 27(a); see also Calderon v. U.S. Dist. Ct. for the N.D. Cal., 98 F.3d

1102, 1106 (9th Cir. 1996) (stating that with the exception of Rule 27, “the Federal

Rules of Civil Procedure do not permit pre-complaint discovery”). If Mr. Tennant


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had a good faith basis to believe the sheriffs had directed withholding of the

medicines, he could have alleged their involvement. See Fed. R. Civ. P. 11(b)(3).

But he did not. Thus, we are left to decide the facial plausibility of a complaint

referring only to the sheriffs’ accountability, not their actual involvement, in the

withholding of medications. We cannot overlook the deficiency in the complaint

based on the inability to conduct discovery after the filing of the complaint.

III.   Intentional Infliction of Emotional Distress

       Mr. Tennant also asserts the Kansas tort of intentional infliction of emotional

distress. This tort contains four elements:

       ●     intentional or reckless conduct

       ●     that was extreme and outrageous

       ●     that caused the plaintiff’s mental distress

       ●     that was extreme and severe.

Veladez v. Emmis Commc’ns, 229 P.3d 389, 394 (Kan. 2010).

       The district court properly ruled that the complaint had failed to include any

facts suggesting extreme, outrageous conduct by either sheriff. The complaint did

use the buzz words: “intentional,” “reckless,” and “extreme and outrageous.”

Complaint at 3 ¶¶ 22-23. But the only reference to the sheriffs’ actual conduct is a

single prepositional phrase: “[i]n refusing to provide plaintiff with his requisite

medical care.” Id. at 3 ¶ 22.




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      This phrase does not clarify the meaning because Mr. Tennant never says in

the complaint what the sheriffs did or did not do “[i]n refusing to provide . . . [the]

requisite medical care.” Id.

      Elsewhere, Mr. Tennant states that he “was denied Xanax and Oxycodone.”

Id. at 1 ¶ 6. By framing this allegation in the passive voice, Mr. Tennant does not say

who actually disallowed the medications.

      He does say that the sheriffs “were responsible” (answerable or accountable)

for denial of the medicines. Id. at 2 ¶ 9. But Mr. Tennant does not say what the

sheriffs actually did. Without knowing what they did, the reader cannot infer

extreme, outrageous conduct by the sheriffs. Thus, the district court properly

dismissed the claim of intentional infliction of emotion distress.

IV.   Amendment of the Complaint

      In addition to challenging the dismissal, Mr. Tennant argues that he should

have been allowed to amend the complaint. But Mr. Tennant did not request leave to

amend prior to the dismissal. In the absence of a request to amend, the district court

could dismiss the action (rather than sua sponte grant leave to amend). See Calderon

v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1990) (“[A]

court need not grant leave to amend when a party fails to file a formal motion.”).

V.    Designation of the Dismissal as “Without Prejudice”

      Mr. Tennant also contends that the dismissal should have been “without

prejudice” (rather than “with prejudice”) because the pleading defect was cureable.


                                           -5-
But Mr. Tennant does not say how he could have cured the pleading defect. As a

result, the district court did not abuse its discretion in ordering dismissal with

prejudice. See Grossman v. Novell, 120 F.3d 1112, 1126 (10th Cir. 1997) (reviewing

dismissal with prejudice for abuse of discretion).

VI.   Conclusion

      We conclude that the district court did not err in dismissing the action with

prejudice. Thus, we affirm.


                                         Entered for the Court



                                         Robert E. Bacharach
                                         Circuit Judge




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