                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JUN 21 2000
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    ERYCK C. ASTON,

                 Plaintiff-Appellant,

    v.                                                 No. 99-4156
                                                   (D.C. No. 96-CV-44)
    PAUL CUNNINGHAM, Captain,                            (D. Utah)
    Salt Lake Metro Jail Commander;
    SALT LAKE CITY; SALT LAKE
    COUNTY SHERIFF’S OFFICE;
    SALT LAKE COUNTY JAIL;
    SERGEANT HARWOOD; DUANE
    JENSON; B. DALTON; STEVEN
    WILLDEN; WILLIAM R. ADAMS,
    M.D., Salt Lake County Jail Officer;
    K. BERRETT, Officer; K. YOUNG,
    Officer; SERGEANT DIUL;
    SERGEANT COOK; BARSO,
    Officer; VICKKI POFF, Sergeant;
    L. HUNTER, Officer; S. JENSON,
    Officer; R. JORGENSON, Officer;
    LEMON, Officer; B. PATRICK,
    Officer; CAPTAIN GLAD, all sued in
    their individual and official capacities,

                 Defendants-Appellees.


                              ORDER AND JUDGMENT        *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before TACHA , EBEL , and BRISCOE , Circuit Judges.



       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.

       Plaintiff-appellant Eryck C. Aston, a         pro se litigant, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint seeking monetary damages

for alleged violations of his civil rights during his incarceration in the Salt Lake

County Jail in 1995. The district court dismissed his complaint, prior to service

of process, on the ground that Mr. Aston had failed to state a claim for relief.

See R. Doc. 35. We affirm.


                                       BACKGROUND

       Mr. Aston filed his initial complaint on January 19, 1996, prior to

enactment of the Prison Litigation Reform Act (PLRA).              See R. Doc. 3.

Mr. Aston’s complaint alleged that, while incarcerated at the Salt Lake County

jail in 1995, he was subjected to numerous conditions of confinement in violation

of his constitutional rights. He named as a defendant only Paul Cunningham,

the commanding officer of that jail.     See id . Mr. Aston’s complaint merely listed


                                               -2-
a series of allegations, without any supporting facts, information or detail. His

list included “[n]o OUTSIDE exercise or recreational time for [nine] months;”

overcrowding; inadequate food and clothing; “VERMIN infested living quarters;”

assaults by prison guards and fellow inmates; and denial of medical treatment.         Id.

The complaint stated defendant Cunningham was aware Aston had filed

grievances, but ignored the situation.    See id . at 9.

       The district court granted Mr. Aston’s request to proceed       in forma

pauperis . Prior to service of process, however, the district court entered an order

directing Mr. Aston to file an amended complaint because his initial complaint

consisted only of vague and conclusory allegations and failed to provide

sufficient factual information.    See id. Doc. 10. The district court directed that

any amended complaint conform to detailed directions, which the court attached

as an appendix to the order. The appendix directed Mr. Aston to provide such

information as the date and place of each alleged event; the alleged misconduct

of each defendant and how each defendant personally participated in the alleged

events; and the actual injury suffered by Mr. Aston.       See id ., App. at 1-2.

The district court warned Mr. Aston that failure to provide complete information

as set forth in the appendix could result in dismissal of his complaint with

prejudice. See id. at 2.




                                            -3-
       Mr. Aston did not immediately file an amended complaint, but instead filed

a notice of appeal to the Tenth Circuit, which was denied for lack of a final

appealable order on January 6, 1997.      See id . Doc. 23. On July 30, 1997, the

district court again entered an order directing Mr. Aston to file a more detailed

amended complaint in accordance with the directions in the attached appendix,

setting forth the relevant facts, dates, and personal participation of each

defendant, or risk dismissal of his complaint.    See id . at Doc. 24.

       Mr. Aston then filed an amended complaint and two pleadings captioned

as a brief and a memorandum in support of his complaint on August 28, 1997.

See id. , Docs. 26, 27 and 28. He added as defendants Salt Lake City, Utah; the

Salt Lake County Sheriff’s Department; the Salt Lake County Jail; and numerous

officers and employees of the jail and the Sheriff’s Department. In his amended

complaint, Mr. Aston alleged a guard broke his thumb during booking while he

was handcuffed; he never saw the sun for a nine-month period in 1995; he was

forced to sleep on the floor without a mattress or blanket and roaches crawled

over him while he slept; he was forced to wear the same clothes and underwear

for three to six weeks at a time; he was not given hygiene items and was unable to

shave or shower; he was assaulted by prison guards, requiring stitches; guards

handcuffed him and beat him and would have other inmates fight him; he was

continually denied medical help, he was denied his outgoing and incoming mail,


                                            -4-
reading materials and access to a law library; and jail staff refused to let him see

his attorney. See id . Doc. 26 at 4-6. His complaint also alleged that jail officials

raided his cell and seized his papers and would beat or punish him for possession

of his notes. See id. at 5. He alleged generally that all of the jail captains and the

Salt Lake County Sheriff’s Department were aware that prison officers beat

inmates. See id . His complaint alleged he was beaten by a Mexican inmate on

orders of a guard, requiring forty stitches, performed without anesthesia while he

was strapped to a table; the jail building in which he lived was condemned,

human feces leaked from the ceiling, the sewer system overflowed into the

shower and he had no fresh air or “outside relief” during his entire incarceration.

Id. at 6. He alleged he pled guilty in order to escape these alleged conditions and

that he suffered drastic weight loss, chronic back pain, insomnia, depression,

headaches, skin sores, skin cancer, permanent scars, nightmares, vision problems

and hair loss as a result of these alleged violations.   See id . at 6-7.

       On November 9, 1998, the district court dismissed Mr. Aston’s complaint

prior to service of process. The order stated that Mr. Aston had been “given

specific and detailed instructions how to remedy the shortcomings of his vague

and factually insufficient complaint,” but that he had ignored the court’s

instructions.   Id. Doc. 35, at 1. Citing 28 U.S.C. § 1915, the district court noted

that it was “empowered to summarily dismiss proceedings in forma pauperis


                                              -5-
at any time if the court determines that the action is frivolous, malicious or fails

to state a claim upon which relief can be granted.” R. Doc. 35 at 2. It then

dismissed the amended complaint on the ground that plaintiff failed to state

a claim. 1


                                       ANALYSIS

       We review the sufficiency of a complaint     de novo , upholding a dismissal

for failure to state a claim only when the plaintiff failed to plead facts which, if

proved, would entitle him to relief.   See Perkins v. Kansas Department of


1
        Prior to the passage of the PLRA, 28 U.S.C. § 1915(d) (West 1992)
permitted a court to dismiss an in forma pauperis complaint if the action was
“frivolous or malicious.” The Supreme Court held, however, that § 1915(d) did
not authorize district courts to    sua sponte dismiss a complaint for failure to state
a claim. See Neitzke v. Williams , 490 U.S. 319, 330 (1989). We have held,
however, that a district court may, in certain circumstances,        sua sponte dismiss
a claim for failure to state a claim under Fed. R. Civ. P. 12(b)(6).        See McKinney
v. Oklahoma Dep’t of Human Servs. , 925 F.2d 363, 365 (10th Cir. 1991).
The Prison Litigation Reform Act amended § 1915 to permit, indeed to require,
a district court to dismiss an in forma pauperis complaint if it fails to state
a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) (West 2000).

        Because the district court cited § 1915, it appears to have based its
dismissal of Mr. Aston’s complaint on § 1915(e)(2)(B)(ii), as amended by PLRA.
This circuit has not had an opportunity to address whether § 1915(e)(2)(B)(ii)
applies where, as here, the complaint was filed prior to enactment of PLRA.
Nevertheless, we need not resolve this issue here, because we conclude the
district court properly dismissed the complaint    sua sponte regardless of whether
the proper basis for the dismissal was Rule 12(b)(6) or § 1915(e)(2)(B)(ii).
See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (holding that
appellate court is free to affirm a district court decision on any grounds supported
by the record).

                                           -6-
Corrections , 165 F.3d 803, 806 (10th Cir. 1999). A district court may          sua sponte

dismiss a pro se complaint for failure to state a claim only where it is “patently

obvious” that the plaintiff cannot prevail on the facts alleged, and allowing the

plaintiff an opportunity to amend the complaint would be futile.           See Hall v.

Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). When the plaintiff is proceeding

pro se , we construe his pleadings liberally.         See Haines v. Kerner , 404 U.S. 519,

520 (1972). However, this court will not supply additional factual allegations to

round out a plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.

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

        Mr. Aston filed a notice of appeal and two opening briefs. His opening

briefs cursorily refer to his allegations that he was beaten, starved and tortured

while incarcerated at the Salt Lake County Jail. He argues that his complaint

should not have been dismissed prior to service of process, and that he should

have been given an opportunity to oppose the order of dismissal, and amend the

complaint to cure any deficiencies. Mr. Aston attached a notice of lis pendens he

filed in another federal action and a February 1997 Utah state court complaint

seeking the return of property allegedly taken during a May 1992 search of his

home.




                                                -7-
       Mr. Aston was a pretrial detainee at least some portion of time he was

incarcerated in the Salt Lake County Jail.     2
                                                    While the conditions under which

a prisoner is held are subject to scrutiny under the Eighth Amendment, the

conditions under which a pretrial detainee is confined are scrutinized under the

Due Process Clauses of the Fifth and Fourteenth Amendments.             See Bell v.

Wolfish , 441 U.S. 520, 535 & n.16 (1979). “Although the Due Process clause

governs a pretrial detainee’s claim of unconstitutional conditions of confinement,

the Eighth Amendment standard provides the benchmark for such claims.”

Craig v. Eberly , 164 F.3d 490, 495 (10th Cir. 1998) (citation omitted).

       “The Eighth Amendment requires jail officials to provide humane

conditions of confinement by ensuring inmates receive the basic necessities of

adequate food, clothing, shelter, and medical care and by taking reasonable

measures to guarantee the inmates’ safety.”          Id . (quotation omitted). An inmate

claiming that officials failed to prevent harm first “must show that he is

incarcerated under conditions posing a substantial risk of serious harm.”         Farmer


2
       It appears from the record that Mr. Aston was incarcerated in the Salt Lake
County Jail from December 1994 to approximately September 1995. He pled
guilty in May 1995, and was sentenced in July 1995, to possession of an
unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d).     See United
States v. Aston , 103 F.3d 145 (10th Cir. 1996) (unpublished). Mr. Aston was
eventually transferred to federal prison,   see Aston v. Bureau of Alcohol, Tobacco
and Firearms , No. 99-4036, 1999 WL 1244468, at *1 (10th Cir. Dec. 17, 1999)
(unpublished), and is now on probation following incarceration,     see United States
v. Aston , No. 97-4171, 2000 WL 282308 (10th Cir. Mar. 16, 2000) (unpublished).

                                              -8-
v. Brennan , 511 U.S. 825, 834 (1994). He must also demonstrate that the officials

had a “sufficiently culpable state of mind,” that is, their acts or omission arose

from “deliberate indifference to inmate health or safety.”        Id. “[A] prison official

cannot be found liable under the Eighth Amendment for denying an inmate

humane conditions of confinement unless the official knows of and disregards

an excessive risk to inmate health or safety.”      Id. at 837.

                                     Official Capacity

       Mr. Aston brought his claim against Salt Lake City, the Salt Lake County

Sheriff’s Department and the employees of the Sheriff’s Department and the

Salt Lake County jail in their official capacities. A suit against government

officers in their official capacities is actually a suit against the government entity

that employs the officers.    See Kentucky v. Graham , 473 U.S. 159, 165 (1985).

A municipality or county can be held accountable to a pretrial detainee for a due

process violation resulting from an employee’s acts only if the harmful acts

resulted from a policy or custom adopted or maintained with objective deliberate

indifference to the detainee’s constitutional rights.      See Monell v. Department of

Social Servs. , 436 U.S. 658, 690-91, 694 (1978).

       The plaintiff must . . . demonstrate that, through its deliberate
       conduct, the municipality was the “moving force” behind the injury
       alleged. That is, a plaintiff must show that the municipal action was
       taken with the requisite degree of culpability and must demonstrate
       a direct causal link between the municipal action and the deprivation
       of federal rights.

                                              -9-
Board of County Comm’rs v. Brown          , 520 U.S. 397, 404 (1997).

       Here, Mr. Aston fails to allege that a policy, custom, or practice of

Salt Lake City, the Sheriff’s Department or any of the named officials caused any

of the alleged conditions at the Salt Lake County Jail or played any part in any of

the alleged violations. Indeed, his complaint does not link any of the alleged

violations to any policy, custom, or practice of any government entity or named

official.   3
                Accordingly, Mr. Aston failed to sufficiently allege a § 1983 cause of

action against the defendants in their official capacities.

                                     Individual Capacity

       Mr. Aston’s amended complaint also named the Salt Lake County Jail

Commander and jail employees, as well as the employees of the Salt Lake County

Sheriff’s Department, in their individual capacities. “Individual liability under

§ 1983 must be based on personal involvement in the alleged constitutional

violation.”      Foote v. Spiegel , 118 F.3d 1416, 1423 (10th Cir. 1997);   see also

Bennett v. Passic , 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating that personal

participation is an essential allegation in a § 1983 action). Mr. Aston’s amended

complaint merely identifies the defendants in the caption and fails to allege any

facts tending to establish a connection or a link between the alleged misconduct


3
       Mr. Aston named the Salt Lake County jail as a defendant. Dismissal
against this entity was also required because a detention facility is not a person or
legally created entity capable of being sued.

                                              -10-
and constitutional violations and any of the defendants. Moreover, Mr. Aston

failed to allege or to present facts tending to show that any of these defendants

knew of and disregarded an excessive risk of harm to him.     See Farmer , 511 U.S.

at 837.

         Mr. Aston’s amended complaint appears to charge defendant Paul

Cunningham as a supervisor of the jail. However, supervisor status alone is

insufficient to support liability. “Liability of a supervisor under § 1983 must be

predicated on the supervisor’s deliberate indifference” and a plaintiff “must show

that an affirmative link exists between the [constitutional] deprivation and either

the supervisor’s personal participation, his exercise of control or direction, or his

failure to supervise.”   Green v. Branson , 108 F.3d 1296, 1302 (10th Cir. 1997)

(quotations omitted). “It is not enough to establish that the official should have

known of the risk of harm.”     Barney v. Pulsipher , 143 F.3d 1299, 1310 (10th Cir.

1998).

         The district court already allowed Mr. Aston an opportunity to file one

amended complaint.       See McKinney , 925 F.2d at 365 (noting the preferred

practice of giving plaintiff notice and opportunity to amend his complaint before

it is dismissed). Mr. Aston was expressly directed to provide the information

necessary to state a claim, including the alleged misconduct of each defendant and

how each defendant personally participated in the alleged events. In his opening


                                           -11-
briefs before this court, Mr. Aston does not suggest any additional information or

evidence he could have supplied in order to cure the deficiencies. Even       pro se

litigants must have some minimal level of factual support for their claims.       See

Frazier v. Dubois , 922 F.2d 560, 562 n.1 (10th Cir. 1990).

       Thus, even assuming that Mr. Aston’s rights were violated, he has alleged

no facts tending to show deliberate indifference or personal participation on

the part of any of the defendants. Thus, we affirm the district court’s dismissal

of Mr. Aston’s prison condition claims for failure to state a cause of action.

See, e.g., Housley v. Dodson , 41 F.3d 597, 599-600 (10th Cir. 1994) (dismissal

correct where § 1983 complaint failed to allege personal participation by

defendants).

                        Allegations Relating to Events in 1992

       Mr. Aston’s amended complaint also asserted that during the execution of

a search warrant in May 1992, officers of the Salt Lake County Sheriff’s

Department confiscated some of his property and did not list this property on the

search warrant. He alleged this property included gold coins; diamond earrings

and rings; over $13,000 in cash; and guns.      See R. Doc. 26. at 7-8. He also

alleged the Salt Lake County Sheriff’s Department manufactured criminal charges

against him in April 1992.    See id . at 8. On appeal, Mr. Aston repeats his claim

that Salt Lake County sheriffs seized his personal property in 1992 without


                                             -12-
a warrant, but appears to abandon his claim that sheriffs manufactured criminal

charges against him.

         State law determines the appropriate statute of limitations and

accompanying tolling provisions for § 1983 actions.     See Fratus v. Deland ,

49 F.3d 673, 675 (10th Cir. 1995). Here, the four-year statute of limitations

provided by Utah Code Ann. § 78-12-25(3) would apply to Mr. Aston’s seizure

of property claims. “Claims arising out of police actions toward a criminal

suspect, such as arrest, interrogation, or search and seizure, are presumed to have

accrued when the actions actually occur.”      Johnson v. Johnson County Comm’n

Bd. , 925 F.2d 1299, 1301 (10th Cir. 1991). Mr. Aston’s amended complaint

containing the allegation that sheriffs illegally seized his property in May 1992

was not filed until August 28, 1997, more than five years after the alleged event.

Therefore, this claim is time-barred and was properly dismissed by the district

court.

         The judgment of the United States District Court for the District of Utah is

AFFIRMED. The mandate shall issue forthwith.



                                                      Entered for the Court



                                                      David M. Ebel
                                                      Circuit Judge

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