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

                             FOR THE TENTH CIRCUIT                            April 8, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 JEFFREY ALLEN HOLDEN,

       Plaintiff - Appellant,

 v.                                                          No. 18-6156
                                                      (D.C. No. 5:18-CV-00479-F)
 GEO GROUP PRIVATE PRISON                                    (W.D. Okla.)
 CONTRACTORS; HECTOR RIOS,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MORITZ, and EID, Circuit Judges.
                  _________________________________

      Jeffrey Allen Holden, an Oklahoma prisoner proceeding pro se, appeals from

the district court’s dismissal of his claims under 42 U.S.C. § 1983. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of Holden’s claims, but

we remand for the district court to clarify in its judgment that its dismissal of any

state-law claims Holden intended to assert was without prejudice.




      *
        After examining the briefs and 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). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                   BACKGROUND

      Holden has been incarcerated in the Oklahoma prison system for

approximately thirteen years, most recently at Lawton Correctional Facility (LCF).

LCF is operated by an entity called GEO Group under a contract with the state of

Oklahoma. Hector Rios is LCF’s Warden.

      Holden is a drug addict. In May 2018, he sued GEO Group and Rios under

§ 1983, alleging that LCF refused to provide him drug treatment in violation of his

rights under the Eighth Amendment and the Oklahoma constitution. Holden’s

complaint also asserted that LCF was required, by its contract with the state, to

provide drug treatment and mental health services.

      On initial screening under 28 U.S.C. § 1915A, the magistrate judge identified

several deficiencies in Holden’s complaint and provided him an opportunity to file an

amended complaint. Holden did not do so, instead filing an “Amendment to Claim

and Brief in Support” in which he attempted to clarify his claims. Considering both

the original complaint and the “Amendment to Claim,” the magistrate judge

recommended that the district court dismiss the federal claims for failure to state a

claim upon which relief may be granted and, to the extent Holden had intended to

assert state-law claims, decline to exercise supplemental jurisdiction over them.

Over Holden’s objections, the district court adopted the magistrate judge’s

recommendation, dismissed the federal claims, and declined to exercise supplemental

jurisdiction over any state-law claims that Holden had intended to assert.



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                                    DISCUSSION

      We review de novo a § 1915A dismissal for failure to state a claim. Young v.

Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). Because Holden proceeds pro se, we

construe his filings liberally, but we do not act as his advocate. Requena v. Roberts,

893 F.3d 1195, 1205 (10th Cir. 2018), cert. denied, 139 S. Ct. 800 (2019).

      “[A] complaint must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted). “[T]he pleading standard Rule 8

announces does not require detailed factual allegations, but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. “A pleading that

offers labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do. Nor does a complaint suffice if it tenders naked assertions devoid

of further factual enhancement.” Id. (citation, brackets, and internal quotation marks

omitted). In addition to the text of Holden’s complaint and his “Amendment to

Claim,” we consider his exhibits in determining whether he stated a claim. See

Requena, 893 F.3d at 1205.

      The Eighth Amendment prohibits deliberate indifference to an inmate’s serious

medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference

to serious medical needs may be “manifested . . . by prison guards . . . intentionally

denying or delaying access to medical care or intentionally interfering with . . .

treatment once prescribed.” Id. at 104-05 (footnote omitted). As Holden urges,



                                            3
medical care includes psychological and psychiatric care. Riddle v. Mondragon,

83 F.3d 1197, 1203 (10th Cir. 1996).

       Deliberate indifference has both an objective and a subjective component.

Requena, 893 F.3d at 1215. “First, [the inmate] must produce objective evidence that

the deprivation at issue was in fact sufficiently serious.” Id. (internal quotation

marks omitted). “Second, under the subjective component, [the inmate] must allege

the prison official acted with a sufficiently culpable state of mind, i.e. that the official

knew of and disregarded an excessive risk to inmate health or safety.” Id. (brackets

and internal quotation marks omitted).

       Holden states that LCF does not offer drug treatment. Further, from his

pleadings and their attachments, it appears that no facility in the Oklahoma

Department of Corrections (ODOC) offers drug treatment to any prisoner until they

are within 2,000 days of release. Holden is approximately 5,500 days from release,

so he is not yet eligible for any drug treatment program in ODOC.

       The magistrate judge assumed, without deciding, that the denial of drug

treatment may trigger constitutional protection. But because ODOC’s drug treatment

policy does make treatment available at some point, he recommended that Holden’s

Eighth Amendment claim be considered as challenging a delay in treatment, rather

than an outright denial of treatment. The district court adopted this recommendation,

and we agree. Although Holden emphatically maintains that LCF does not offer drug

treatment, the allegations indicate that Holden is precluded from drug treatment not

simply because he is at LCF, but because he is not currently eligible for drug

                                             4
treatment at any ODOC facility. In light of ODOC’s policy allowing drug treatment

at some point in the future, Holden’s claim is more properly analyzed as a delay of

treatment rather than a denial of treatment.

      “Where a prisoner claims that harm was caused by a delay in medical

treatment, he must show that the delay resulted in substantial harm in order to satisfy

the objective prong of the deliberate indifference test.” Al-Turki v. Robinson,

762 F.3d 1188, 1193 (10th Cir. 2014) (internal quotation marks omitted). “We have

held that the substantial harm requirement may be satisfied by lifelong handicap,

permanent loss, or considerable pain.” Id. (internal quotation marks omitted);

see also Mata v. Saiz, 427 F.3d 745, 755 (10th Cir. 2005) (stating that an inmate

established objective harm by demonstrating unnecessary pain and a worsening in

condition). We have also stated, however, that “not every twinge of pain suffered as

the result of delay in medical care is actionable.” Sealock v. Colorado, 218 F.3d

1205, 1210 (10th Cir. 2000).

      The magistrate judge noted that “[Holden] alleges only that the delay in

substance abuse treatment has resulted in mental anguish, stress, anxiety,

hopelessness, depression, and ‘continual highs and lows of hope for relief to never

come to fruition.’” R. at 45 (quoting id. at 6). Accordingly, he concluded that

Holden “has not alleged facts from which to infer that Defendants’ inaction in

delaying his receipt of substance abuse treatment has resulted in substantial harm.”

Id. The district court adopted this analysis. On appeal, Holden again generally



                                           5
identifies the types of harms the magistrate judge noted.1 We agree with the district

court that these allegations are insufficient to establish the substantial harm

requirement. See Riddle, 83 F.3d at 1203-04 (stating, in holding that plaintiffs who

sought specialized treatment for sex addiction failed to state an Eighth Amendment

claim, that “[v]ague allegations of eroded self-esteem, apathy, fear and feelings of

differentness, keeping a plaintiff in the ‘addictive cycle,’ do not amount to the basis

for a constitutional claim”).

      Contrary to Holden’s allegations on appeal, the district court gave him the

benefit of liberal construction of his pleadings, considering both the allegations of the

“Amendment to Claim” as well as the allegations in the original complaint.

Moreover, regarding Holden’s assertion of failure to address his allegations of breach

of contract, the district court declined to exercise supplemental jurisdiction over

Holden’s state-law claims, leaving him free to pursue a breach of contract claim in

state court if he chooses to do so.2

      We note, however, that the district court did not specify whether its dismissal

was with prejudice or without prejudice. Under Fed. R. Civ. P. 41(b), that means the

dismissal was with prejudice. See Nasious v. Two Unknown B.I.C.E. Agents,


      1
          To the extent Holden’s opening brief may identify any additional harms,
they are asserted only conclusorily, without explanation or elaboration.
       2
         On appeal, Holden suggests that he is a third-party beneficiary who can
pursue a federal claim of breach of contract under 42 U.S.C. § 1981. But Holden did
not mention § 1981 in the district court. And to the extent that Holden alleges that
the district court should have identified a possible § 1981 claim through applying
liberal construction, we disagree. Section 1981 addresses race discrimination, and
Holden has failed to allege any facts regarding race discrimination.
                                            6
492 F.3d 1158, 1162 (10th Cir. 2007) (“Because the district court in this case did not

specify the nature of its dismissal order, we must rely on background principles under

Rule 41(b), and they firmly instruct that ‘[u]nless the court in its order for dismissal

otherwise specifies,’ a district court’s dismissal will be treated as adjudicating the

merits of the action—and thus a dismissal with prejudice.”). Given that the district

court declined to exercise supplemental jurisdiction over any state-law claims,

however, the dismissal of those claims should have been without prejudice. See Ball

v. Renner, 54 F.3d 664, 669 (10th Cir. 1995).

                                    CONCLUSION

      The district court’s judgment is affirmed, but we remand for the district court

to clarify in its judgment that its dismissal of any state-law claims is without

prejudice.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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