                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                July 18, 2011

                                    TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


 EDWARD ALLEN,

          Plaintiff - Appellant,
                                                        No. 11-1020
 v.                                          (D.C. No. 08-CV-02506-ZLW-BNB)
                                                          (D. Colo.)
 ARISTEDES ZAVARAS; J.
 HASSENFRITZ; MS. GRAHAM;
 COLORADO DEPARTMENT OF
 CORRECTIONS; CORRECTIONS
 CORPORATION OF AMERICA,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges. **



      Plaintiff-Appellant Edward Allen, a state prisoner appearing pro se, appeals

from the district court’s grant of summary judgment in part and dismissal in part

of his 42 U.S.C. § 1983 civil rights complaint against various correctional

      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
facilities and their officials. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.



                                    Background

      Mr. Allen, a convicted sex offender, has been incarcerated since May 14,

2004. R. 8. On April 29, 2008 Mr. Allen was transferred to the Kit Carson

Correctional Center (“KCCC”), as ordered by Defendant Aristedes Zavaras, the

Executive Director of the Colorado Department of Corrections (“DOC”). Id. at 9.

KCCC is a private facility operated by Corrections Corporation of America

(“CCA”). On May 6, 2008, Mr. Allen was moved to the “Echo B Unit” of KCCC

with another inmate, also a sex offender. Id. Some time after he was moved to

the “Echo B Unit,” two gang member inmates approached Mr. Allen and his

cellmate, demanding that they pay rent because they were sex offenders. Id. Mr.

Allen and his cellmate refused to pay, and the gang members assaulted them. Id.

Mr. Allen did not suffer any injury, but his cellmate suffered sore ribs. Id. Mr.

Allen informed Defendant James Hassenfritz, the Unit Manager, and Mr.

Hassenfritz showed Mr. Allen pictures of inmates to help Mr. Allen identify the

assailants. Id. Mr. Allen and his cellmate were moved to “Echo A Unit” on May

13, 2008. Id.

      On September 10, 2008, Mr. Allen was approached by another gang

member in the kitchen bakery area where they both worked. Id. The gang

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member told Mr. Allen to quit his job because he did not want to work with a sex

offender, and then physically assaulted Mr. Allen. Id. Mr. Allen suffered a cut

on his hand. Id. Defendant Graham, the kitchen supervisor, moved the gang

member to another department in the kitchen. Id. 10.

      On October 29, 2008, another gang member—acting on orders from another

inmate—attacked Mr. Allen, causing a cut above Mr. Allen’s right eye, a black

eye, a cut inside his mouth, and a swollen temple, cheek, and lip. Id. One or two

days after the assault, the inmate who ordered the assault was moved out of Mr.

Allen’s unit, but the assailant remained in the same unit. Id.

      Mr. Allen filed his civil rights complaint on November 10, 2008, asserting

two claims for relief pursuant to 42 U.S.C. § 1983, each alleging Eighth

Amendment violations. Id. at 11-14. In claim one, Mr. Allen alleged that Mr.

Hassenfritz, Ms. Graham, and the CCA violated his Eighth Amendment rights

because they were deliberately indifferent to his safety. Id. at 11-12. In claim

two, he alleged that Mr. Zavaras and the DOC (“DOC Defendants”) violated his

Eighth Amendment rights by instituting a policy of placing sex offenders with

gang members. Id. at 13-14. He sued the individual defendants in their

individual capacities for nominal, emotional, and punitive damages and sought

injunctive relief against the DOC. Id. at 8. He initially sought injunctive relief

against CCA, but later disclaimed any intent to seek such relief. Id. at 76.

      Defendants Hassenfritz and the CCA jointly filed a motion to dismiss

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pursuant to Fed. R. Civ. P. 12(b)(6). Id. at 41. Defendants Zavaras and the DOC

filed a separate motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and

12(b)(6). Id. at 17.

      On November 12, 2009, the magistrate judge recommended granting the

CCA’s and Mr. Hassenfritz’s motion to dismiss under Rule 12(b)(6) and

dismissing the claim against Ms. Graham, who is not employed by the CCA and

was apparently never served with a complaint, as legally frivolous pursuant to 28

U.S.C. § 1915A. Allen v. Zavaras, No. 08-cv-02506-ZLW-BNB, 2009 WL

6633305, at *6-*7 (D. Colo. Nov. 12, 2009). The magistrate also recommended

granting the DOC Defendants’ motion to dismiss with respect to the DOC because

of Eleventh Amendment immunity, but denying it with respect to Mr. Zavaras.

Id. at *3-*6. The district court adopted these recommendations in full on June 28,

2010. Allen v. Zavaras, No. 08-cv-02506-ZLW-BNB, 2010 WL 2640198 (D.

Colo. June 28, 2010).

      Mr. Allen and Mr. Zavaras then filed cross motions for summary judgment.

R. 79, 85. On November 2, 2010, the magistrate recommended that Mr. Zavaras’s

motion be granted and Mr. Allen’s motion be denied, and the district court

adopted these recommendations on December 1, 2010. Allen v. Zavaras, No. 08-

cv-02506-ZLW-BNB, 2010 WL 4977834 (D. Colo. Nov. 2, 2010); R. 152. Final

judgment in favor of all Defendants was entered on December 3, 2010. R. 154.

Mr. Allen timely appealed, alleging the same arguments.

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                                     Discussion

      The Eighth Amendment’s prohibition against cruel and unusual punishment

imposes a duty on prison officials to protect inmates from violence at the hands of

other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To establish an

Eighth Amendment violation based on an official’s failure to protect, the inmate

must show that (1) the alleged deprivation is objectively, “sufficiently serious,”

meaning the inmate “is incarcerated under conditions posing a substantial risk of

serious harm” and (2) the prison official acted with “deliberate indifference,”

meaning the official knew of and disregarded an excessive risk to the inmate’s

safety. Id. at 834, 837; Howard v. Waide, 534 F.3d 1227, 1236 (10th Cir. 2008).

Prison officials cannot be held liable, however, where they know of a risk to

inmate safety and respond reasonably to it. Farmer, 511 U.S. at 844.

      In addition, to establish liability of a prison official under § 1983, the

inmate must prove “an affirmative causal connection between the actions taken by

a particular person ‘under color of state law’ and the constitutional deprivation.”

Tafoya v. Salazar, 516 F.3d 912, 922 (10th Cir. 2008) (quotation marks and

citations omitted). “The relevant inquiry is whether an official’s acts or

omissions were the cause—not merely a contributing factor—of the

constitutionally infirm condition.” Id. (quotation marks and citation omitted).

With these principles in mind, we turn to Mr. Allen’s claims against each

Defendant.

                                         -5-
A.    Defendants CCA and Mr. Hassenfritz

      We review a dismissal pursuant to Rule 12(b)(6) de novo. Gallagher v.

Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). To survive a motion to dismiss,

the complaint must allege facts that state a claim for relief that is plausible on its

face; conclusory allegations alone are not sufficient. Ashcroft v. Iqbal, 129 S.Ct.

1937, 1949 (2009).

      The only factual allegation Mr. Allen has made regarding Mr. Hassenfritz’s

knowledge of the assaults is that after the attack in the Echo B Unit, he told Mr.

Hassenfritz, the unit manager, about the attack, and Mr. Hassenfritz helped Mr.

Allen identify the assailants. R. 11. Mr. Allen was subsequently moved to a

different unit, without any other attacks in Mr. Hassenfritz’s unit. Id. Thus, even

assuming Mr. Allen was exposed to a sufficiently serious risk of harm, Mr.

Hassenfritz cannot be held liable on these factual allegations because he

responded reasonably to that risk by moving Mr. Allen to a different location.

See Farmer, 511 U.S. at 844.

      With regard to the CCA, Mr. Allen makes the conclusory allegation that the

action or inaction of the CCA staff violated his Eighth Amendment rights. R. 12.

A private defendant such as the CCA, can be liable under § 1983, see Dubbs v.

Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003), 1 but dismissal is

      1
        See also Smedley v. Correction Corp. of Am., 175 F. App’x 943, 946
(10th Cir. 2005) (unpublished) (CCA can be liable pursuant to § 1983 under
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)).

                                          -6-
appropriate where, as here, the plaintiff has failed to adequately allege an

underlying constitutional violation by one of its employees. See Graves v.

Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006).

B.    Defendant Graham

      The district court adopted the magistrate’s recommendation to dismiss the

claim against Ms. Graham as frivolous under 28 U.S.C. § 1915A. R. 153. “[T]his

court has not yet determined whether a dismissal pursuant to § 1915A on the

ground that the complaint is legally frivolous is reviewed de novo or for abuse of

discretion,” Plunk v. Graves, 234 F.3d 1128, 1130 (10th Cir. 2000) (citation

omitted), but we need not resolve that question because we find no reversible

error under either standard.

      A complaint is frivolous if “it lacks an arguable basis either in law or fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). The only factual allegation Mr.

Allen has made regarding Ms. Graham’s knowledge of the assaults is that after he

was assaulted in the kitchen, Ms. Graham, the kitchen supervisor, moved the

assailant to another department in the kitchen. R. 9-10. Mr. Allen was not

assaulted again in the kitchen. Assuming Mr. Allen was exposed to a sufficiently

serious risk of harm, Ms. Graham cannot be held liable because she responded

reasonably to that risk by moving the assailant to a different location. See

Farmer, 511 U.S. at 844.




                                         -7-
C.    Defendant DOC

      We review de novo the decision to dismiss a claim based on Eleventh

Amendment immunity. Robinson v. Kansas, 295 F.3d 1183, 1188 (10th Cir.

2002). Eleventh Amendment immunity extends to states and state agencies

deemed “arms of the state” that have not waived their immunity, regardless of the

relief sought. Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252-53

(10th Cir. 2007). The district court was correct in dismissing the claim against

the DOC for injunctive relief because, as we have previously held, the DOC is an

agency of Colorado that is entitled to Eleventh Amendment immunity. See Griess

v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988).

D.    Defendant Zavaras

      We review the district court’s grant of summary judgment de novo, but

because the district court granted summary judgment in favor of Mr. Zavaras

based on qualified immunity, our summary judgment standards are subject to a

somewhat different analysis from other summary judgment rulings. Toevs v. Reid

--- F.3d ----, 2011 WL 2437782, at *3 (10th Cir. June 20, 2011). “[T]o avoid

judgment for the defendant based on qualified immunity, the plaintiff must show

that the defendant’s actions violated a specific statutory or constitutional right,

and that the constitutional or statutory rights the defendant allegedly violated

were clearly established at the time of the conduct at issue.” Id. (quotation marks

and citations omitted). “We may address these questions in whatever order is

                                         -8-
appropriate under the circumstances.” Id. (citation omitted).

      Mr. Allen argues that Mr. Zavaras has a policy of exposing sex offenders to

violence by placing them with gang members who target sex offenders. We

recently held that a plaintiff may succeed in a § 1983 suit against a defendant

supervisor by showing “(1) the defendant promulgated, created, implemented or

possessed responsibility for the continued operation of a policy that (2) caused the

complained of constitutional harm, and (3) acted with the state of mind required

to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614

F.3d 1185, 1199 (10th Cir. 2010) (quotation marks, citation, and footnote

omitted), cert. denied 131 S. Ct. 2150 (2011). We conclude that Mr. Allen has

failed to show that Mr. Zavaras acted with deliberate indifference, the state of

mind required to establish an Eighth Amendment violation.

      Mr. Allen argues that Mr. Zavaras knows that Mr. Allen has been targeted

by gang members, yet he has failed to present evidence that Mr. Zavaras had

actual knowledge of the alleged risk to his safety, as required for a showing of

deliberate indifference. See Tafoya, 516 F.3d at 916 (“An official’s failure to

alleviate a significant risk of which he was unaware, no matter how obvious the

risk or how gross his negligence in failing to perceive it, is not an infliction of

punishment and therefore not a constitutional violation.”). In addition, he claims

that he was told that if he became “sex offender compliant,” then he would be

moved to a sex offender pod. R. 118-19. While troubling, he admitted that the

                                          -9-
statement was not made by Mr. Zavaras, and he has not shown that Mr. Zavaras

had actual knowledge of this statement. Id.

      We recognize that

      if an Eighth Amendment plaintiff presents evidence showing that a
      substantial risk of inmate attacks was longstanding, pervasive,
      well-documented, or expressly noted by prison officials in the past, and
      the circumstances suggest that the defendant-official being sued had
      been exposed to information concerning the risk and thus must have
      known about it, then such evidence could be sufficient to permit a trier
      of fact to find that the defendant-official had actual knowledge of the
      risk.

Howard, 534 F.3d at 1236 (quoting Farmer, 511 U.S. at 842-43). But Mr. Allen

has not shown that Mr. Zavaras has been exposed to any information regarding

his condition; therefore Mr. Zavaras is entitled to qualified immunity.

      Mr. Allen claims that Mr. Zavaras cannot be entitled to qualified immunity

because he is being sued in his official capacity for injunctive relief. See Beedle

v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005) (“A qualified immunity defense

is only available to parties sued in their individual capacity.” (citation omitted)).

In his complaint, however, Mr. Allen stated that he was suing Mr. Zavaras in his

individual capacity for nominal, punitive, and emotional damages. See R. 8. In

any event, summary judgment in favor of Mr. Zavaras was proper because Mr.

Allen has failed to show that Mr. Zavaras acted with deliberate indifference. See

Callahan v. Poppell, 471 F.3d 1155, 1159-60 (10th Cir. 2006) (affirming grant of

summary judgment in favor of defendants, including prison officials in their


                                         - 10 -
official capacities, where plaintiff failed to show deliberate indifference).

      Accordingly, we affirm the district court’s dismissal of Mr. Allen’s claims

against Defendants Hassenfritz, Graham, the CCA, and the DOC and its grant of

summary judgment in favor of Defendant Zavaras. All other requests for relief

are denied. We grant IFP status and remind Mr. Allen of his obligation to make

partial payments until the filing fee is paid.


                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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