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

                             FOR THE TENTH CIRCUIT                          August 21, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JOSHUA LAMONT SUTTON,

      Plaintiff - Appellant,

v.                                                          No. 18-1174
                                                   (D.C. No. 1:17-CV-02378-LTB)
DR. RICHARD POUNDS; MANUEL                                    (D. Colo.)
ESPINOZA; KAREN PARTEN (OR
PORTER); LARRY MINAZUMI,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
                  _________________________________

      Joshua Sutton appeals the district court’s dismissal of his 42 U.S.C. § 1983

suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      Sutton alleges that, while he was an inmate of the Colorado Department of

Corrections (“CDOC”), he received treatment from defendants at the Colorado


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
Mental Health Institute at Pueblo (“CMHIP”). He contends that defendants

diagnosed him with mental illnesses but did not inform him of these diagnoses.

Sutton claims that he was then sent back to prison, even while other patients were

not. He further avers that he was abused in prison, both by other inmates and prison

staff.

         Sutton filed a complaint in district court, alleging that defendants had violated

his Eighth Amendment rights by subjecting him to cruel and unusual punishment.

After the district court ordered Sutton to file an amended complaint, he added due

process and equal protection claims. The district court dismissed Sutton’s claims as

frivolous under 28 U.S.C. § 1915(e)(2)(B). Sutton now appeals.

                                             II

         We review the dismissal of a suit under § 1915(e)(2)(B) for abuse of

discretion. McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997).

Because Sutton is pro se, we construe his filings liberally but stop short of acting as

his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         Sutton argues that the district court abused its discretion by dismissing the suit

without granting him further leave to amend. He claims that, because he had no

access to the law library at the time, he was unable to submit a proper amended

complaint. But the district court appropriately identified the factual deficiencies in

the original complaint and provided Sutton with an opportunity to correct them. See

Hall, 935 F.2d at 1110 (“[A] pro se plaintiff requires no special legal training to



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recount the facts surrounding his alleged injury, and he must provide such facts if the

court is to determine whether he makes out a claim on which relief can be granted.”).

      We further conclude the district court did not err in dismissing Sutton’s

claims. Because Sutton failed to advance specific allegations that defendants

personally participated in creating his conditions of confinement, the district court

correctly held that his Eighth Amendment claim could not proceed. Henry v. Storey,

658 F.3d 1235, 1241 (10th Cir. 2011). Although Sutton contends that he was placed

in solitary confinement and housed with fellow inmates who assaulted him, he fails

to allege that defendants were involved in any housing decisions. As to his equal

protection claim, Sutton merely alleges that he was released from CMHIP and sent

back to the general prison population while other patients were not. But he has failed

to show that these other patients were similarly situated. See Brown v. Montoya, 662

F.3d 1152, 1172-73 (10th Cir. 2011). Finally, despite having been informed by the

district court’s prior order that a due process claim requires a constitutionally

protected interest in life, liberty, or property, Sutton simply noted that he was housed

in solitary confinement after having threatened to kill himself. Without more, the

district court was correct in holding that Sutton did not plead facts sufficient to state

a conditions of confinement claim under DiMarco v. Wyoming Department of

Corrections, 473 F.3d 1334, 1342 (10th Cir. 2007).




                                            3
                                         III

     For the foregoing reasons, the district court’s order of dismissal is

AFFIRMED. Sutton’s motion to proceed in forma pauperis is GRANTED.


                                          Entered for the Court


                                          Carlos F. Lucero
                                          Circuit Judge




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