                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              FEB 6 2001
                                  TENTH CIRCUIT
                             __________________________                  PATRICK FISHER
                                                                                  Clerk

 MICHAEL SENA,

           Plaintiff-Appellant,

 v.                                                          No. 00-2123
                                                              (D. N.M.)
 WACKENHUT CORPORATION; JOE R.                     (D.Ct. No. CIV-99-1307-JP/DJS)
 WILLIAMS, Warden, Lea County
 Correctional Facility; BRUCE TRAVIS,
 Infirmary Administrator,

           Defendants-Appellees.

 -------------------

 MICHAEL SENA,

           Plaintiff-Appellant,

 v.                                                          No. 00-2226
                                                              (D. N.M.)
 BRUCE TRAVIS, Infirmary Administrator,            (D.Ct. No. CIV-99-1307-JP/DJS)

           Defendant-Appellee.
                         ____________________________

                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.

       *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

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.



      Appellant Michael Sena appeals the district court’s decisions dismissing his

complaint filed pursuant to 42 U.S.C. § 1983. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.



      Mr. Sena is currently incarcerated at a correctional institution in New

Mexico. On November 8, 1999, Mr. Sena filed his § 1983 complaint, alleging

cruel and unusual punishment in violation of the Eighth Amendment by Warden

Joe Williams, Infirmary Administrator Bruce Travis and Wackenhut Corporation

(Wackenhut). In support of his complaint, Mr. Sena essentially raised the

doctrine of respondeat superior, claiming Mr. Williams and Wackenhut, through

their employees, denied him prompt medical attention, beginning in June 1999,

for a dental condition that caused him “unbearable pain.” The district court

dismissed the complaint against Mr. Williams and Wackenhut pursuant to 28

U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6). In so doing, the district court

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refused to apply the doctrine of respondeat superior to Mr. Williams and

Wackenhut, finding Mr. Sena failed to “affirmatively link them to the alleged

violation” or allege their personal involvement in the constitutional deprivation.



      As to Mr. Travis, the district court directed the clerk of court to issue a

summons for Mr. Travis in his individual capacity. Later, when service was not

accomplished, a magistrate judge ordered Mr. Sena to cure the deficiency by

requesting personal service. After Mr. Sena requested personal service, the

district court ordered the United States Marshal to serve Mr. Travis. After the

United States Marshal was unable to execute service because Mr. Travis left the

state without leaving a forwarding address, the district court issued an order to

show cause, pursuant to Fed. R. Civ. P. 4(m), directing Mr. Sena to provide a

current address for Mr. Travis or show cause why the action should not be

dismissed. In his response, Mr. Sena claimed he could not acquire the address of

Mr. Travis because he 1) was incarcerated, 2) “was not familiar with [Mr.] Travis

as a person,” and 3) could not obtain information from the prison because it

possessed no information on Mr. Travis’ location. Finding Mr. Sena did not

establish good cause, the district court dismissed the action against Mr. Travis

without prejudice.




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       On appeal, Mr. Sena claims the district court erred in dismissing his

respondeat superior claim against Mr. Williams and Wackenhut. Specifically, Mr.

Sena claims they are liable for the actions and torts committed by their

employees, including the hiring of medical administrators. Mr. Sena also asserts

the district court erred in placing the burden on him to serve Mr. Travis, thereby

“penalizing” him for the United States Marshal’s failure to execute service by

dismissing the complaint against Mr. Travis. Finally, Mr. Sena makes an

unintelligible argument that, because the district court did not direct the United

States Marshal to serve the complaint until 150 days after its filing, “the Lower

Court erred in dismissing complaint based [on] a federal tolling statute of

limitations after statute was tolled.” 1



       We review de novo dismissal for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6). See Perkins v. Kansas Dep’t of

Corrections, 165 F.3d 803, 806 (10th Cir. 1999). Dismissal of Mr. Sena’s pro se

complaint for failure to state a claim is proper only if it is obvious he cannot

prevail on the facts alleged and it would be futile to give him an opportunity to



       1
        Mr. Sena filed two appeals – one concerning the dismissal of the warden and
Wackenhut and the other regarding the dismissal of Mr. Travis. We have consolidated
Mr. Sena’s two appeals and address them together.


                                           -4-
amend. Id. In determining if dismissal is proper, we liberally construe Mr.

Sena’s pro se complaint; accept its allegations as true; and construe those

allegations, and any reasonable inference drawn therefrom, in the light most

favorable to Mr. Sena. Id. We review the district court’s dismissal of Mr. Sena’s

complaint against Mr. Travis for failure to effect service for abuse of discretion.

See Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995).



      We begin with the district court’s dismissal of Mr. Williams and

Wackenhut. We have held supervisors are not liable under § 1983 for the acts of

their subordinates, absent personal participation by those supervisors in the

alleged constitutional deprivation. See Mitchell v. Maynard, 80 F.3d 1433, 1441

(10th Cir. 1996). Given Mr. Sena makes only conclusory allegations Mr.

Williams and Wackenhut are responsible for his injury based in part on their

hiring of Mr. Travis, Mr. Sena has not shown the requisite proof of their

participation in the alleged deprivation. Thus, as the district court determined, it

would be futile to give Mr. Sena an opportunity to amend. Accordingly, we agree

with the district court’s dismissal of the complaint against Mr. Williams and

Wackenhut for the same reasons.



      With respect to the district court’s dismissal of Mr. Travis, the inquiry a


                                         -5-
district court must make before dismissing a claim pursuant to Fed. R. Civ. P.

4(m) is to determine whether the plaintiff showed good cause for his failure to

timely effect service, and if not, whether a permissive extension is warranted. See

Espinoza, 52 F.3d at 841. After conducting this inquiry, the district court may, in

its discretion, dismiss the case without prejudice or extend the time of service.

Id. Under the circumstances presented in this case, we hold the district court did

not abuse its discretion in determining Mr. Sena failed to show cause for not

effecting service on Mr. Travis. Mr. Sena’s contentions that he is currently

incarcerated, never personally knew Mr. Travis, and cannot get information from

prison officials because they do not know Mr. Travis’ whereabouts, are

insufficient to establish good cause.



       Finally, Mr. Sena’s argument regarding the tolling of the statute of

limitations lacks merit. The fact the district court did not direct the United States

Marshal to serve the summons until 150 days after Mr. Sena filed the complaint

did not toll any statute of limitations. 2


       2
           In this case, the injury Mr. Sena sustained began in June 1999 and continued
until at least November 1999 when he filed his complaint. “Limitation periods in § 1983
suits are to be determined by reference to the appropriate state statute of limitations and
the coordinate tolling rules.” Hardin v. Straub, 490 U.S. 536, 539 (1989) (quotation
marks omitted). In this case, New Mexico’s three-year personal injury statute of
limitations under N.M. Stat. Ann. § 37-1-8 applies. See Industrial Constructors Corp. v.
United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). Thus, even if

                                             -6-
       Thus, for substantially the same reasons articulated by the district court, we

AFFIRM the district court’s dismissal of Mr. Sena’s complaint.



                                          Entered by the Court:

                                          WADE BRORBY
                                          United States Circuit Judge




the 150-day delay in service somehow affected the limitation period, the statute of
limitations had not run, contrary to Mr. Sena’s contentions.


                                            -7-
