                                                               FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                                           June 13, 2018
                 UNITED STATES COURT OF APPEALS
                                                       Elisabeth A. Shumaker
                              TENTH CIRCUIT                Clerk of Court



PEDRO J. AMARO,

            Plaintiff - Appellant,

v.                                                  No. 17-2178
                                        (D.C. No. 1:16-CV-00993-KG-JHR)
STATE OF NEW MEXICO; SUSANA                          (D. N.M.)
MARTINEZ; BILL RICHARDSON,
former Governor for the State of New
Mexico; HECTOR H. BALDERAS,
Attorney General for the State of New
Mexico; GARY R. KING, former
Attorney General for New Mexico;
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; NEW MEXICO
DEPARTMENT OF CORRECTIONS;
GREGG MARCANTEL; JOE
WILLIAMS, Secretary of Corrections;
JERRY ROARK, Director of Adult
Prisons; TIM LEMASTER, Deputy
Secretary of Operations; LARRY
PHILLIPS, NMCD
Grievance/Disciplinary Appeals;
JAMES R. BREWSTER, General
Counsel; ANGELA M. MARTINEZ,
Health Services Administrator; Y.
RIVERA, A.C.A.
Monitor/Administrator for New
Mexico; G. CHAVEZ; GEO GROUP,
INC., a corporation registered to do
business in New Mexico; JOE R.
WILLIAMS, employed by GEO
Group; FNU LNU, Wardens; FNU
LNU, Chief of Security; FNU LNU,
Grievance Lieutenants; CORIZON,
LLC, a foreign corporation registered
to do business in New Mexico; LISA
 STABER, M.D.; KATHY ARMIJO,
 employed by Corizons as Health
 Services; FNU LNU, John/Jane Does,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This case is therefore ordered submitted without oral argument.

      Plaintiff Pedro Amaro, a state prisoner proceeding pro se, filed this action

under 42 U.S.C. § 1983 against numerous defendants, including the State of New

Mexico, several state officials, the corporation that runs the private prison in

which he is housed, the company that manages healthcare at this prison, and

various individuals affiliated with the prison. He alleged that conditions in the

prison in which he is housed, as well as other prisons operated by the same

company, violate prisoners’ Eighth Amendment rights because design flaws and


      *
        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.

                                         -2-
structural defects related to the ventilation system, boilers, and flues have caused

several incidents of carbon-monoxide exposure and continue to place prisoners at

risk of further such incidents. He alleged that he experienced “repetitive episodes

of Carbon Monoxide exposure/poisoning,” which occurred on December 28,

2012; January 4, 2013; January 19, 2013; January 21, 2013; and February 6, 2014.

(R. at 24–25.) He further alleged that he “twice utilized the facility’s ‘Grievance’

program under NMCD Policy/Procedure in an attempt to resolve this situation but

all ‘Grievances’ were ‘Denied’ and/or remain unanswered/unresolved.” (R. at

23.) Specifically, as the materials attached to the complaint showed, Plaintiff

filed one grievance following the December 28, 2012 incident, and he pursued

this grievance up until its final denial by the director of prisons on April 8, 2013.

He allegedly filed a second grievance following the February 6, 2014 incident,

but he obtained no relief from this grievance either. He filed this federal

complaint on September 2, 2016, claiming negligence and a violation of his

Eighth Amendment rights based on both the specific past incidents of carbon-

monoxide exposure and the ongoing risk of future exposure. He also raised a due

process claim relating to the way his grievances were handled by the prison

system. In his prayer for relief, he sought declaratory relief, various forms of

injunctive relief, and damages.

      The district court sua sponte dismissed Plaintiff’s complaint on several

grounds. First, the court held that, to the extent Plaintiff sought relief for alleged

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incidents at other prisons and for alleged injuries to other prisoners, his pro se

complaint failed to state a claim on which relief could be granted. Second, the

court held that the allegations of the complaint were insufficient to state a

plausible § 1983 claim against any named individual defendant, since Plaintiff did

not allege individual conduct or tie the acts of any particular individual to an

alleged constitutional violation. Third, the court held that Plaintiff could not

proceed against the State of New Mexico under § 1983 and his claims against the

state officers in their official capacity were likewise barred as claims against the

state. Finally, the court held that the complaint was also subject to dismissal

because all of Plaintiff’s claims were barred by the applicable statute of

limitations. The court noted that the complaint had been filed less than three

years after the February 6, 2014 incident. However, the court held that this

incident still did not fall within the three-year statute of limitations for civil-

rights claims because the court understood the complaint to be alleging not a

separate incident of exposure on that date, but rather a flare-up of symptoms

relating to the prior exposure. The court held the complaint was subject to

immediate dismissal without leave to amend because amendment would be futile.

The court also denied Plaintiff’s motion for summary judgment and request for

the appointment of counsel to represent him in this case.

      We first consider Plaintiff’s argument that the district court erred in

denying his request for the appointment of counsel. We review this decision only

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for an abuse of discretion. See Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir.

2016). “In considering whether the court acted within its discretion, we consider

the merits of the claims, the nature of the claims, [Plaintiff’s] ability to present

the claims, and the complexity of the issues.” Id. The district court considered

these factors and concluded that Plaintiff was capable of representing himself.

After reviewing the record and Plaintiff’s filings in this court, we see no abuse of

discretion in this decision, and we thus affirm the district court’s denial of

Plaintiff’s request for the appointment of counsel.

      We turn then to Plaintiff’s arguments that the district court erred in

dismissing his complaint as time-barred and as failing to state a claim upon which

relief could be granted. We review both of these legal issues de novo. See Indus.

Constructors v. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994).

      We begin by addressing the statute of limitations. Civil-rights claims

arising in New Mexico and brought under § 1983 are governed by a three-year

statute of limitations. Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1212

(10th Cir. 2014). “A § 1983 action accrues when facts that would support a cause

of action are or should be apparent.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th

Cir. 2006) (internal quotation marks omitted). The statute of limitations is

statutorily tolled while a New Mexico prisoner is pursuing mandatory grievance

proceedings, but this tolling lasts only as long as the grievance process

“‘continue[s] in force.’” Roberts v. Barreras, 484 F.3d 1236, 1243 (10th Cir.

                                          -5-
2007) (quoting N.M. Stat. Ann. § 37-1-12). “A complaint may be dismissed sua

sponte under § 1915 based on an affirmative defense—such as statute of

limitations—only when the defense is obvious from the face of the complaint and

no further factual record is required to be developed.” Fogle, 435 F.3d at 1258

(internal quotation marks omitted).

      Based on the complaint and attached documents, it is clear the statute of

limitations for Plaintiff’s claims relating to the December 2012 and January 2013

incidents accrued no later than April 2013, when Plaintiff received the final

denial of his administrative grievance relating to this exposure. At that point, the

“facts that would support a cause of action [we]re or should [have been]

apparent,” id., and the statute of limitations was no longer being tolled by the

grievance proceedings. Because Plaintiff did not file his complaint until

September 2016, his claims relating to these earlier incidents are barred by the

statute of limitations. Moreover, to the extent Plaintiff’s due process claim is

based on the 2013 grievance proceeding, it is clear from the face of the complaint

that this claim likewise accrued in April 2013 and is thus time-barred. We affirm

the dismissal of these claims based on the statute of limitations.

      As for the February 2014 incident, however, we agree with Plaintiff that the

district court failed to liberally construe the allegations in his complaint. See

Hall v. Bellmon, 935 F.2d 1106, 1109–10 (10th Cir. 1991). It is possible to read

the complaint in the way the district court read it, as alleging only a flare-up of

                                          -6-
symptoms in February 2014 based on the December 2012 incident, but the more

liberal—and more natural—reading of the complaint is to allege multiple

individual incidents of carbon-monoxide exposure at the prison, including one

incident in February 2014. Moreover, the allegations of the complaint indicate

that the statute of limitations was tolled as to this claim by Plaintiff’s pursuit of

the mandatory grievance process. Since the complaint was filed in September

2016, well within the three-year statute of limitations for civil-rights claims, the

district court erred in dismissing these claims—and any related due process

claims based on the grievance proceedings—as time-barred. To the extent

Plaintiff raised claims of negligence based on this incident that may have been

governed by a two-year statute of limitations instead, the district court likewise

erred in dismissing these claims as time-barred, since Plaintiff alleged that his

grievance was pending until at least October 2014, and thus it was not “patently

clear” from the face of his complaint that a two-year statute of limitations would

bar these claims either. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995).

      Finally, we note that the district court failed to consider how the statute of

limitations would apply to Plaintiff’s claims for declaratory and injunctive relief,

which are primarily based on Plaintiff’s allegations that he is currently being

subjected to an ongoing violation of his Eighth Amendment right to be free from

unsafe prison conditions and that the Eighth Amendment requires the prison to

protect him against future harm. See Helling v. McKinney, 509 U.S. 25, 33

                                           -7-
(1993) (“That the Eighth Amendment protects against future harm to inmates is

not a novel proposition. . . . It would be odd to deny an injunction to inmates who

plainly proved an unsafe, life-threatening condition in their prison on the ground

that nothing yet had happened to them.”). We decline to decide in the first

instance how the statute of limitations would apply to these claims, and we thus

will not affirm the dismissal of these claims on this basis on appeal.

      We turn then to the question of whether these surviving claims—Plaintiff’s

claims relating to the February 2014 incident and the associated grievance

process, as well as his claims for declaratory and injunctive relief—should be

affirmed on the alternative basis given by the district court, for failure to state a

plausible claim for relief.

      We first hold that the district court did not err in dismissing Plaintiff’s

claims that were based on other prisons and other prisoners. “A litigant may

bring his own claims to federal court without counsel, but not the claims of

others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir.

2000). Plaintiff argues that this principle simply proves that an attorney should

have been appointed to represent him and other potential class members;

however, as previously explained, we see no abuse of discretion in the district

court’s decision not to appoint counsel, and we are not persuaded that Plaintiff’s

desire to pursue a class action either required appointment of an attorney or

permitted him to litigate the claims of others. Plaintiff further argues he should

                                          -8-
be permitted to seek injunctive relief relating to other prisons because there is a

chance that he may be transferred to another prison that has the same unsafe

conditions as his current one. However, the abstract possibility that he may be

transferred to an unsafe prison in the future is insufficient to satisfy Article III’s

standing requirements. See Rector v. City & Cty. of Denver, 348 F.3d 935, 946

(10th Cir. 2003).

      As for Plaintiff’s claims against the individual defendants based on the

alleged carbon-monoxide exposure in February 2014 and associated grievance

proceedings, we agree with the district court that the complaint was not

sufficiently specific as to how each individual defendant violated his

constitutional rights to state a valid claim for relief under § 1983. In § 1983 cases

involving a government agency and several government actors sued in their

individual capacities, “it is particularly important . . . that the complaint make

clear exactly who is alleged to have done what to whom, to provide each

individual with fair notice as to the basis of the claims against him or her, as

distinguished from collective allegations against the state.” Robbins v.

Oklahoma, 519 F.3d 1242, 1249–50 (10th Cir. 2008). Plaintiff’s complaint “fails

to isolate the allegedly unconstitutional acts of each defendant, and thereby does

not provide adequate notice as to the nature of the claims against each.” Id.

However, given that these claims are not facially time-barred and that the

complaint might be amended to include the required specificity, we conclude that

                                           -9-
the district court erred in dismissing these claims without granting Plaintiff leave

to amend. Thus, although the complaint as it currently stands is not sufficient to

state a valid claim for relief under § 1983 against the individual defendants, we

reverse and remand these non-time-barred claims with instructions that Plaintiff

be granted an opportunity to amend his complaint.

      We affirm the district court’s dismissal of Plaintiff’s claims against the

State of New Mexico. “Section 1983 provides a federal forum to remedy many

deprivations of civil liberties, but it does not provide a federal forum for litigants

who seek a remedy against a State for alleged deprivations of civil liberties.”

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989).

      As for Plaintiff’s claims against state officials in their official capacities,

however, the district court erred in holding that all such claims must likewise be

barred based on the Supreme Court’s opinion in Will. In Will, the Court held that

a plaintiff could not obtain damages from a state official sued in his official

capacity because “a suit against a state official in his or her official capacity is

not against the official but rather is a suit against the official’s office,” and, “[a]s

such, it is no different from a suit against the State itself.” Id. at 61, 71.

However, the Court expressly reaffirmed the validity of the Ex parte Young rule,

which allows claims for prospective equitable relief to be brought against state

officials in their official capacities. See id. at 71 n.10; see also Ex parte Young,

209 U.S. 123, 158–59 (1908). Thus, Will bars claims for retroactive relief that

                                           -10-
are brought against state officials in their official capacities, but it does not bar

requests for prospective relief that fall under the Ex parte Young rule. See Comm.

for the First Amendment v. Campbell, 962 F.2d 1517, 1519 n.1 (10th Cir. 1992).

In determining whether Ex parte Young applies to a particular claim, we “need

only conduct a straightforward inquiry into whether the complaint alleges an

ongoing violation of federal law and seeks relief properly characterized as

prospective.” Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645

(2002) (internal quotation marks and brackets omitted). If so, then the claim is

not barred by sovereign immunity or the language of § 1983. See id., see also

Will, 491 U.S. at 71 n.10. Plaintiff’s claims for injunctive and declaratory relief

satisfy these criteria, and thus the court erred in dismissing them based on Will.

We accordingly reverse the dismissal of Plaintiff’s claims for injunctive and

declaratory relief against the state officials in their official capacities.

      Finally, we note that the district court did not address Plaintiff’s claims

against the private companies that manage the prison where he is incarcerated and

the healthcare system of that prison. The only reason the district court gave for

dismissing these claims was the statute of limitations. Thus, there is no

alternative ground for affirming the dismissal of these claims in this appeal. We

accordingly affirm the dismissal of the claims against these defendants that are

based on the time-barred 2012 and 2013 incidents, but we otherwise reverse the

dismissal of the claims against these defendants and remand them for further

                                           -11-
proceedings before the district court.

      Plaintiff also cursorily argues that the district court erred in denying his

motion for summary judgment. We see no error in this decision. The defendants

have not even been served yet, and this motion is clearly premature. Although we

are reversing the dismissal of several of Plaintiff’s claims for relief, we express

no opinion as to the ultimate merit of these claims, nor do we express any opinion

as to the possible existence of other procedural grounds for dismissal.

      We AFFIRM the district court’s denial of Plaintiff’s motions for the

appointment of an attorney and for summary judgment. We AFFIRM the

dismissal of (1) all claims against the State of New Mexico; (2) any claims of

damages suffered by other prisoners; (3) all requests for relief at prisons where

Plaintiff was not and is not incarcerated; (4) all claims premised on the December

2012 or January 2013 incidents or the grievance process associated with those

incidents; and (5) any claims for damages against state officials in their official

capacities. We AFFIRM the district court’s conclusion that Plaintiff’s claims

against the individual state officials and prison employees for the February 2014

incident and related grievance proceeding are not currently alleged with sufficient

individual specificity to state a valid claim for relief under § 1983, but we

REVERSE these claims with instructions for the district court to provide Plaintiff

an opportunity to amend his complaint to remedy this deficiency. All other

claims are REVERSED and REMANDED for further proceedings in accordance

                                         -12-
with this opinion. We GRANT Plaintiff’s motion to proceed in forma pauperis

on appeal but remind him of his obligation to continue making partial payments

until the entire filing fee has been paid in full.

                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




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