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

                             FOR THE TENTH CIRCUIT                         August 29, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
GREGORY C. KRUG,

      Plaintiff - Appellant,
                                                             No. 16-6052
v.                                                   (D.C. No. 5:15-CV-00476-HE)
                                                             (W.D. Okla.)
WARDEN KASTNER,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

       Gregory Krug appeals the dismissal without prejudice of his pro se complaint

against the warden of the Federal Bureau of Prisons Transfer Center (FTC) in Oklahoma

City, Oklahoma. His complaint alleged that the warden violated the Eighth

Amendment’s prohibition on cruel and unusual punishment by maintaining an

excessively cold environment at the facility. See Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing cause of action for

constitutional violations by federal employees). In particular, Mr. Krug asserted that

*
 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 This order and judgment is not binding precedent, except under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.
during his 26-day incarceration at FTC in August and September of 2014, the

temperature in his cell was about 50 degrees Fahrenheit, yet he was provided only a t-

shirt and a very thin blanket, “prevent[ing] him from sleeping more than one hour or so

every night.” Complaint at 2, R. at 5. The magistrate judge recommended dismissal.

The district court agreed and dismissed the case under 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim. We affirm.

       “We review de novo the district court's decision to dismiss an [in forma pauperis]

complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis,

500 F.3d 1214, 1217 (10th Cir. 2007). In doing so, “[w]e apply the same standard of

review . . . that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to

dismiss for failure to state a claim.” Id. That is, we “accept as true the well pleaded

factual allegations and then determine if the plaintiff has provided enough facts to state a

claim to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096, 1104 (10th

Cir. 2014) (internal quotation marks omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. (internal quotation marks

omitted). Because Mr. Krug is proceeding pro se, we construe his complaint liberally.

See Kay, 500 F.3d at 1218.

       “The Constitution does not mandate comfortable prisons, but neither does it permit

inhumane ones, and it is now settled that the treatment a prisoner receives in prison and

the conditions under which he is confined are subject to scrutiny under the Eighth

Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and internal


                                             2
quotation marks omitted). To establish a claim under the Eighth Amendment for

unconstitutional conditions of confinement, a prisoner has to make two showings. First,

he has to show that the deprivation is “sufficiently serious”—that is, “a prison official's

act or omission must result in the denial of the minimal civilized measure of life's

necessities.” Id. at 834 (internal quotation marks omitted). Second, he must prove that

the defendant prison official had “a sufficiently culpable state of mind,” which in a case

like this requires “deliberate indifference to inmate health or safety.” Id. (internal

quotation marks omitted). Deliberate indifference is a subjective test. See id. at 837. “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.

       We need not address the first requirement because we agree with the district court

that Mr. Krug failed to plead sufficient facts to show that the warden was deliberately

indifferent to his conditions of confinement. No allegations in his pleadings would

support that the warden knew that the prison’s temperature would impact Mr. Krug’s

ability to sleep at night. Mr. Krug did allege that he complained to the warden. But his

letter to the warden, which he submitted as an attachment to his complaint, said only: “I

hereby request that you promptly inform me as to why your staff will not issue either

sweaters or jackets to those inmates who request either of those items, notwithstanding

the fact that you constantly maintain this facilities’ temperature below 60 degrees F.” R.

at 40. There is no reference to sleeping conditions; and the reference to sweaters and




                                              3
jackets suggests that he is complaining about conditions during the day. Yet it was Mr.

Krug’s discomfort at night that allegedly jeopardized his health.

       Nor does the other evidence relied on by Mr. Krug indicate that the warden knew

about unsafe temperatures. First, he seems to imply that it would have been self-evident

to the warden from observing the inmates. But Mr. Krug made no allegation that any

other inmate had complained of the temperature. This might be because, as Mr. Krug

admitted in his objections to the magistrate judge’s report, he was particularly susceptible

to cold because of a spleen condition. See R. at 29 n*. Again, however, Mr. Krug never

alleged that the warden had reason to know about his susceptibility to the cold. Second,

he contends that the warden must have known how cold the prison was kept because he

likely participated in decisions involving large expenditures, like those for heating and

cooling. We disagree. This contention is too speculative to support Mr. Krug’s claim.

Finally, several portions of the complaint discuss the actions of prison officials other than

the warden. But “Government officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal,

556 U.S. 662, 676 (2009). In sum, the complaint fails to allege that the warden was

deliberately indifferent to the conditions of Mr. Krug’s confinement.

       We AFFIRM the district court. We remind Mr. Krug that he must continue

making partial payments until payment of all assessed costs and fees is complete, in




                                              4
accordance with the district court’s order of March 22, 2016.

                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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