                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 2, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                              FOR THE TENTH CIRCUIT


    JOHN PAUL THOMAS,

                Plaintiff-Appellant,

    v.                                             Nos. 09-2133 & 09-2183
                                             (D.C. No. 2:08-CV-00427-MV-LAM)
    CHARLES GUFFEY;                                       (D. N.M. )

                Defendant-Appellee,

    CHRIS BARELA; KEVIN
    ANDERSON,

                Defendants.


                              ORDER AND JUDGMENT *


Before HARTZ, McKAY, and ANDERSON, Circuit Judges.



         John Paul Thomas appeals the district court’s denial of preliminary

injunctive relief (appeal No. 09-2133) and dismissal of his 42 U.S.C. § 1983

complaint challenging his conditions of confinement at the Doña Ana County


*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Detention Center (the “Detention Center”) (appeal No. 09-2183). We have

jurisdiction under 28 U.S.C. § 1291.

                               Appeal No. 09-2183

      The district court dismissed the complaint under 28 U.S.C. §§ 1915A(a)

and 1915(e)(2). Our review is de novo. See McBride v. Deer, 240 F.3d 1287,

1289 (10th Cir. 2001). 1

      Mr. Thomas’ amended complaint alleged that he received substandard

psychiatric care and he was denied access to the courts while he was a pretrial

detainee at the Detention Center. He named three defendants for the medical-care

claims: Chris Barela, the administrative director of the Detention Center; Charles

Guffey, an employee of an independent company that contracts to provide health

care at the Detention Center who was identified as the Regional Medical Director

for the Detention Center’s region; and Kevin Anderson, also an employee of the

contracting company who was identified as the Detention Center Medical Mental

Health Department Director. Mr. Thomas named only Mr. Barela as a defendant

with regard to his access-to-the-courts claim. During the litigation, the parties

stipulated to the dismissal of all claims against Mr. Barela. See Fed. R. Civ. P.

41(a)(1)(A)(ii). Ultimately, the district court dismissed the complaint, holding


1
      Mr. Thomas argues that the district court waited too long to dismiss the
complaint under §§ 1915A and 1915(e)(2). But even if the court had dismissed
the complaint under Fed. R. Civ. P. 12(b)(6), our standard of review would be the
same. See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999).

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that each of the claims failed to state a claim under § 1983 and failed to show the

defendants’ personal participation. Mr. Thomas appeals.

      In light of the stipulated dismissal of all claims against Mr. Barela, we need

not discuss the medical-care allegations against him or the access-to-the-courts

claim. That leaves the medical-care claims against Mr. Guffey and Mr. Anderson.

The district court correctly held that allegations of medical malpractice and

negligence do not state a claim under § 1983. See Estelle v. Gamble, 429 U.S. 97,

105-06 (1976). As for the Eighth Amendment claims, 2 the district court correctly

held that Mr. Thomas had the burden of pleading that the defendants had an

affirmative link to the events about which he complains. See Gallagher v.

Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (“Supervisory status alone does not

create § 1983 liability. Rather, 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.” (citation, alterations,

and quotation omitted)). The complaint does not provide such an affirmative

link; instead, with regard to each claim, Mr. Thomas stated that defendants were


2
       Mr. Thomas cited the Eighth Amendment, but as a pretrial detainee in state
custody, his protection from unconstitutional conditions of confinement came
from the Fourteenth Amendment. The distinction effectively is immaterial,
though, because “[u]nder the Fourteenth Amendment due process clause, pretrial
detainees are entitled to the degree of protection against denial of medical
attention which applies to convicted inmates under the Eighth Amendment.”
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.), cert. denied, 130 S. Ct. 259
(2009) (alteration and quotation omitted).

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liable simply because their positions made them responsible for ensuring adequate

care to detainees. Such allegations fail to state a § 1983 claim.

      Mr. Thomas asserted in another district-court filing, and reasserts in his

appellate briefs, that he intended to sue Mr. Guffey and Mr. Anderson for creating

and implementing an unconstitutional policy with regard to prescribing

medications. 3 But even assuming that the district court could have and should

have considered this argument in making its dismissal decision, the policy, as it is

described in the amended complaint, does not amount to a constitutional

violation. Accordingly, we cannot conclude that the district court erred in

dismissing the complaint.

                                Appeal No. 09-2133

      Mr. Thomas twice sought injunctive relief with regard to his

access-to-the-courts claim. He first requested that the district court order the

Detention Center to provide him with access to a law library and copying

machine. That motion was denied as moot because he had been transferred away

from the Detention Center. He then requested that the court order the New

Mexico Corrections Department (“NMCD”) to provide him with access to free


3
      In his appellate reply brief, Mr. Thomas also asserted that he intended to
sue these defendants for creating and implementing an unconstitutional policy
regarding crushing medications. We do not consider this assertion because his
opening brief did not allege the existence of a policy (as distinguished from
challenging a practice), and arguments not raised in the opening brief are waived,
see Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007).

                                         -4-
photocopying, and later he sought to amend that motion to request that the court

order NMCD to provide him with legal materials. Noting that NMCD was not

named as a party to the action and that none of the defendants could speak for it,

the district court denied his motions. Mr. Thomas appealed.

      We cannot consider whether the district court abused its discretion in

denying the requests for injunctive relief. The requests concerned a claim that

was asserted only against Mr. Barela, and as discussed above, the parties

stipulated to the dismissal of all claims against Mr. Barela. The dismissal of the

underlying claim rendered moot the requests for injunctive relief regarding that

claim, leaving us with no jurisdiction to consider the issue. See Disability Law

Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005) (“The

controversy must exist during all stages of the appellate review. Once such

controversy ceases to exist, the action is moot and this court lacks jurisdiction to

adjudicate the matter.” (quotation omitted)). This appeal must be dismissed.

                                     Conclusion

      Mr. Thomas’ motion to proceed in forma pauperis is GRANTED, and he is

reminded of his obligation to continue making partial payments until the entire

balance of his appellate filing fees are paid. The judgment of the district court in




                                          -5-
appeal No. 09-2183 is AFFIRMED. Appeal No. 09-2133 is DISMISSED AS

MOOT.


                                            Entered for the Court



                                            Stephen H. Anderson
                                            Circuit Judge




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