                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 23, 2009
                                                                Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT
                                                                    Clerk of Court


    KENNETH M. SUTTON,

               Plaintiff-Appellant,

    v.                                                 No. 08-1279
                                           (D.C. No. 1:06-CV-1606-DME-KLM)
    CORRECTIONS CORPORATION OF                          (D. Colo.)
    AMERICA; WASHINGTON STATE
    DEPT. OF CORRECTIONS;
    WARDEN CROUSE; ASST.
    WARDEN ROGERS - S.O.R.T. Team
    Leader; HAROLD CLARK, Secretary
    Washington Dept. of Corrections;
    JAMES THATCHER, Superintendent
    Out of State (OSS) Prison Facilities
    (WDOC),

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and ANDERSON, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Kenneth M. Sutton brought this civil rights action under 42 U.S.C. § 1983

to vindicate alleged constitutional violations stemming from a prison riot. He

claimed that members of his prison’s Special Operations Response Team (SORT)

subjected him to cruel and unusual punishment and acted with deliberate

indifference during the riot, and that he was denied due process when he was

subsequently placed in administrative segregation without proper notice.

Defendants moved for summary judgment, and the magistrate judge recommended

that the motion be granted. Over Mr. Sutton’s objections, the district court

agreed. Mr. Sutton appealed, and we now affirm.

      Our jurisdiction arises under 28 U.S.C. § 1291. We review a grant of

summary judgment de novo, “applying the same standard as the district court.”

Butler v. Compton, 482 F.3d 1277, 1278 (10th Cir. 2007). Summary judgment is

proper “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In

reviewing a grant of summary judgment, we view the facts and the reasonable

inferences therefrom in the light most favorable to the non-moving party. Sigmon

v. CommunityCare HMO, Inc., 234 F.3d 1121, 1124-25 (10th Cir. 2000). We are

also mindful that Mr. Sutton’s pro se status entitles him to a liberal reading of his

pleadings; we will not, however, serve as his advocate. See Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991).

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      Mr. Sutton is a Washington State inmate. At the time of the riot, he was

incarcerated in Colorado at the Crowley County Correctional Facility (CCCF), a

privately-run prison operated by Corrections Corporation of America (CCA).

Mr. Sutton pursued a theory of liability against the individual defendants under

the doctrine of respondeat superior, alleging that Defendants Crouse and Rogers,

respectively CCCF’s warden and assistant warden, were liable as the SORT

supervisors. He alleged that Defendant Clark was liable as the Secretary of the

Washington State Department of Corrections (WDOC), because he contracted

with CCA to transfer Washington inmates to out-of-state facilities. Mr. Sutton

also alleged that Defendant Thatcher was culpable by virtue of his role as

Superintendent of WDOC’s out-of-state facilities. In addition to these individual

defendants, Mr. Sutton also named WDOC and CCA.

      In adopting the magistrate judge’s report and recommendation, the district

court first recognized that sovereign immunity barred all claims against WDOC,

as well as Defendants Clark and Thatcher in their official capacities. The court

next determined that summary judgment was proper for Defendants Crouse,

Rogers, Clark, and Thatcher in their supervisory capacities, because liability by

respondeat superior is not within the purview of § 1983, and Mr. Sutton failed to

establish that they either personally participated in the alleged violations or were

aware of circumstances that would trigger those violations. Finally, the court

found that summary judgment for CCA was appropriate because Mr. Sutton failed

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to identify any official custom, policy, or practice related to the riot or his

administrative segregation.

      We have reviewed the parties’ briefs, the record on appeal, and the relevant

legal authority, and we agree with the magistrate judge’s detailed and

well-reasoned report and recommendation. The magistrate judge thoroughly and

accurately analyzed each of Mr. Sutton’s claims, and we see no reason to repeat

that analysis here. Therefore, we AFFIRM the district court for substantially the

same reasons as set forth by the magistrate judge in her report and

recommendation dated May 28, 2008, which the district court adopted in its order

dated July 17, 2008. Mr. Sutton’s motion to proceed in forma pauperis is

GRANTED, and he is reminded of his continuing obligation to make partial

payments towards his filing fee. 1



                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge

1
       During the pendency of this appeal, Mr. Sutton submitted to the court six
prisoner affidavits, including his own, attesting to his condition during and after
the riot. Mr. Sutton’s affidavit was not before the district court and thus will not
be considered on appeal. See Boone v. Carlsbad Bancorporation, Inc., 972 F.2d
1545, 1549 n.1 (10th Cir. 1992) (refusing to consider evidence not before the
district court). The remaining affidavits are already included in the record, see
Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 907 (10th Cir. 2009) (explaining that
“[t]he record on appeal comprises all of the original papers and exhibits filed in
the district court”) (quotation omitted) and do not impact our disposition.

                                           -4-
