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

                                TENTH CIRCUIT                 August 12, 2014

                                                            Elisabeth A. Shumaker
                                                                Clerk of Court

JAMES E.M. PEEL, SR.,

      Plaintiff - Appellant,

v.                                                   No. 13-5151
                                         (D.C. No. 4:13-CV-00092-JHP-PJC)
JOINT COMMISSION, STATE                              (N.D. Okla.)
SURVEY OKLAHOMA DEPARTMENT
OF HEALTH; WANDA GREEN; ANN
MARIE; MARY HINTZ; MIKE COOK;
AMBER HARPER; MELISSA
CUNNINGHAM; FRESENIUS
MEDICAL CENTER; TULSA POLICE
DEPARTMENT; JANE DOE, Tulsa
Police Officer; TOMMY DOE, Tulsa
Police Officer; ESRD NETWORK 13,
previously named as Network 13;
NEPHROLOGY SPECIALISTS OF
TULSA, INC.; APLANA PASHRICA,
previously named as Dr. Pasricha,

      Defendants - Appellees,

and

SANDRA WOODRUFF,

      Defendant.
                              ORDER AND JUDGMENT*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


       James E.M. Peel appeals the district court’s dismissal of his pro se civil rights

complaint and its denial of his motion to amend the complaint. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                              I

       In February 2013, Peel filed a complaint against a Tulsa dialysis clinic called

Fresenius Medical Center (“FMC”), the Oklahoma State Department of Health

(“OSDH”), Nephrology Specialists of Tulsa (“NST”), and the End Stage Renal Disease

Network 13 (“ESRD”), a federal contractor that assists dialysis facilities in Oklahoma,

Arkansas, and Louisiana. The complaint also names as defendants at least one employee

of each of those entities.

       Peel brings his suit under 42 U.S.C. § 1983, alleging violations of his First, Eighth,

and Fourteenth Amendment rights. The crux of Peel’s complaint is that the defendants

intentionally abandoned their duties and conspired to murder him. He claims to have

*
 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.




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received substandard treatment at FMC starting in December 2011. Peel alleges that after

he filed a grievance with ESRD against FMC nurse Wanda Green, she and others

retaliated against him by mishandling his medical records and harassing him with phone

calls. In a letter dated July 31, 2012, Defendant Alpana Pasricha, a doctor working at

NST, terminated Peel as her patient effective August 31, 2012, citing “the deterioration of

our patient physician relationship.” On August 1, 2012, FMC sent Peel a letter, signed by

Dr. Pasricha as its Medical Director, stating that his treatment at the facility would be

terminated in one month because it was unable to provide dialysis services without

physician orders. Peel’s complaint describes this discontinuation of treatment as cruel

and unusual and alleges a conflict of interest on the part of Dr. Pasricha. He claims that

all defendants ultimately conspired to kill him through the denial of dialysis treatment.

       After filing the complaint, Peel sought leave to amend it to add as defendants the

Tulsa Police Department and unnamed Tulsa police officers who had allegedly served as

security guards at the clinic during several of Peel’s visits. He also sought to amend the

complaint to “further state and re-allege sufficient facts to state and prove a [c]ause of

action against defendants.”

       All defendants moved to dismiss Peel’s complaint. The case was assigned to a

magistrate judge, who recommended granting all motions to dismiss and denying Peel’s

motion to amend. The district court affirmed and adopted the magistrate judge’s

recommendations. This appeal followed.

                                              II



                                             -3-
       Peel challenges both the dismissal of his complaint and the district court’s refusal

to grant leave to amend. We review the dismissal de novo, Khalik v. United Air Lines,

671 F.3d 1188, 1190 (10th Cir. 2012), applying the plausibility standard articulated by

the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “The

question is whether, if the allegations [in the complaint] are true, it is plausible and not

merely possible that the plaintiff is entitled to relief under the relevant law.” Christy

Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir. 2009). Because

Peel proceeds pro se, we construe his complaint liberally, but we do not craft arguments

on his behalf. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Whitney v. New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

       We hold that Peel’s conspiracy allegations do not satisfy the plausibility standard.

“[W]hen a plaintiff attempts to assert the state action required for a § 1983 claim against

private actors based on a conspiracy with government actors, mere conclusory allegations

with no supporting factual averments are insufficient. Rather, the plaintiff must

specifically plead facts tending to show agreement and concerted action.” Beedle v.

Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (quotations omitted). Peel’s complaint

does not contain sufficient factual allegations to plausibly suggest any conspiracy. We

therefore affirm the district court’s dismissal of all non-state actors: FMC, NST, and

their employees. See id. (private actors can be sued under § 1983 only if complaint

adequately alleges conspiracy with state actors).

       We also hold that Peel’s Eighth Amendment claims were properly dismissed

because he was not incarcerated at any time during the events giving rise to his

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complaint. The Eighth Amendment’s prohibition against cruel and unusual punishment

applies to conditions of incarceration. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).

Peel confirmed that he was not imprisoned during the relevant period, and he thus lacked

a basis for filing Eighth Amendment claims.

       Peel’s remaining allegations—First and Fourteenth Amendment claims against

OSDH and its employee Mike Cook, and ESRD and its employees—fail because they do

not meet the Twombly plausibility standard. Peel claims that OSDH was aware of the

termination letters and that it was responsible for protecting his rights. These allegations

are insufficient to support Peel’s desired conclusion: that OSDH violated his federal

constitutional or statutory rights or was part of a conspiracy to murder him. We agree

with the district court’s dismissal of all claims against OSDH and its employee.

       Similarly, Peel appears to argue that ESRD was indifferent to the grievances he

filed against Green. We agree with the district court that Peel asserts no facts that would

constitute a violation of his federal statutory or constitutional rights other than his

allegations of conspiracy, which we have explained fail to state a plausible claim. Peel’s

brief on appeal does not make any arguments on these points or dispute the findings of

the magistrate judge. Peel’s allegations, as a whole, fall well short of the specificity and

plausibility required to survive a motion to dismiss.

       Peel also asks us to reverse the district court’s refusal to permit him an amendment

to his complaint. We generally review such a ruling for abuse of discretion, but because

the district court’s denial of Peel’s motion to amend was based on a legal conclusion that

amendment would be futile, we review that determination de novo. Peterson v. Grisham,

                                              -5-
594 F.3d 723, 731 (10th Cir. 2010). Peel sought to add the Tulsa Police Department and

several officers thereof as defendants, suggesting that the presence of police at the

dialysis clinic is proof of their participation in the alleged conspiracy. We reiterate the

requirement that Peel “specifically plead facts tending to show agreement and concerted

action,” Beedle, 422 F.3d at 1073, and conclude that the amended complaint fails to do

so. In the amended complaint, Peel again makes conclusory allegations insufficient to

survive the Twombly standard. We therefore agree with the magistrate judge and the

district court that an amendment to the complaint would be futile. See Perkins v. Kan.

Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). Because amendment would neither

cure the fatal flaws in Peel’s original complaint nor add facts sufficient to state any claim

for relief, we affirm the district court’s refusal to grant amendment.

                                             III

       AFFIRMED.



                                                   Entered for the Court



                                                   Carlos F. Lucero
                                                   Circuit Judge




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