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

                             FOR THE TENTH CIRCUIT                           May 21, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
BONIFACE W. WABUYABO,

      Plaintiff - Appellant,
                                                           No. 18-3017
v.                                                (D.C. No. 5:17-CV-03173-SAC)
                                                             (D. Kan.)
CORRECT CARE SOLUTIONS,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Boniface Wabuyabo, a Kansas state inmate appearing pro se,1 appeals the district

court’s dismissal of his 42 U.S.C. § 1983 amended complaint concerning his medical

treatment by Correct Care Solutions (“CCS”). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                  I. BACKGROUND

      Mr. Wabuyabo, an inmate at Johnson County Adult Detention Center (“JCADC”),

filed a pro se complaint against CCS, the health care provider at JCADC. In his

      *
         This order is not binding precedent, except under the doctrines of law of the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.
       1
         Because Mr. Wabuyabo proceeds pro se, we construe his filings liberally, see
Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft
arguments or otherwise advocate for him, see Yang v. Archuleta, 525 F.3d 925, 927
n.1 (10th Cir. 2008).
complaint, he described a “different case” against Rose Aliuba and the Kansas

Department of Children and Families (“DCF”). ROA at 8. The district court instructed

Mr. Wabuyabo to file a new complaint because he improperly joined unrelated claims

against different defendants.

       Mr. Wabuyabo filed an amended complaint. He alleged that, after falling from his

top bunk at JCADC, he received an x-ray and a CT scan but no treatment to relieve his

pain. He further alleged CCS concealed his health information and “abused and

neglected [his] rights to seek medical help.” Id. at 19. Mr. Wabuyabo claimed his “life is

still endangered and still under painful conditions.” Id. He also attached a letter

repeating his allegations against Ms. Aliuba and the DCF.

       The district court screened the complaint under 28 U.S.C. § 1915A to determine

whether it was “frivolous, malicious, or fail[ed] to state a claim upon which relief may be

granted.” Id. at 26. It assumed Mr. Wabuyabo was attempting to allege a violation of his

Eighth Amendment right against cruel and unusual punishment, and appeared to assume

that CCS was a contractor acting under color of state law. The court said Mr. Wabuyabo

needed to allege facts to show the “existence of a . . . policy or custom” and “that there is

a direct causal link between the policy or custom and the injury alleged.” Id. at 29

(quoting Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)).

       The district court found Mr. Wabuyabo had failed “to allege facts plausibly

identifying an official custom or policy that violated his constitutional rights against cruel

and unusual punishment,” and directed him to “show cause why his amended complaint



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should not be summarily dismissed as stating no claim for relief against defendant CCS.”

Id. at 30. The court did not consider the attached letter as part of the amended complaint.

       In response, Mr. Wabuyabo said CCS had committed cruel and unusual

punishment “because they identified the problem and vowed not to handle it.” Id. at 37.

He also alleged CCS had “abused [and] neglected” him and “contributed to a worsening

health condition.” Id. at 46. He said he feared retaliation from the CCS staff. Id. at 47.

       The district court said Mr. Wabuyabo still had not alleged a policy or custom or

“describe[d] an intentional or reckless indifference to [Mr. Wabuyabo’s] condition.” Id.

at 53-54. Instead, he described “a disagreement over the course of treatment prescribed

and how such treatment is delivered,” which was “insufficient to state an Eighth

Amendment claim.” Id. at 53. The court concluded the “amended complaint should be

dismissed without prejudice for failure to state a claim.” Id. at 54. It granted leave to

appeal in forma pauperis (“ifp”). Mr. Wabuyabo timely appealed.

                                    II. DISCUSSION

       Under 28 U.S.C. § 1915A, “[t]he court shall review . . . a complaint in a civil

action in which a prisoner seeks redress from a government entity,” and dismiss the

complaint before service on the defendant if it “is frivolous, malicious, or fails to

state a claim upon which relief may be granted.” 28 U.S.C. § 1915A. We review a

dismissal for failure to state a claim de novo. Young v. Davis, 554 F.3d 1254, 1256

(10th Cir. 2009).

       To determine whether a complaint has failed to state a claim, “[w]e review the

complaint for plausibility; that is, to determine whether the complaint includes

                                              3
enough facts to state a claim to relief that is plausible on its face.” Id. (quotations

omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007).

         Under § 1983, the plaintiff must show (1) the deprivation of a federally

protected right by (2) an actor acting under color of state law. Schaffer v. Salt Lake

City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). We will assume that CCS was

acting under color of state law when it provided medical services to Mr. Wabuyabo.

See Craft v. Middleton, 524 F. App’x 395, 397 n.3 (10th Cir. 2013) (unpublished)

(assuming for sake of analysis that defendants were state actors). As the district

court noted, to state a claim against CCS, Mr. Wabuyabo must identify an official

policy or custom that led to the alleged constitutional violation. See Dubbs v. Head

Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (extending the rule in Monell v.

New York City Department of Social Services., 436 U.S. 658 (1978), to private

entities acting under color of state law).

         Mr. Wabuyabo has not alleged facts that suggest CCS has an official policy or

custom that could have caused the alleged constitutional violation. See Dubbs, 336 F.3d

at 1216. We therefore affirm for substantially the same reasons provided by the district

court.

                                    III. CONCLUSION

         We affirm the district court’s dismissal of the action for failure to state a

claim. We also deny as moot Mr. Wabuyabo’s motion of May 7, 2018, requesting

“an injunction or declaratory order for Plaintiff’s treatment.” Doc. 10556917 at 1.

                                              4
The district court’s dismissal under 28 U.S.C. § 1915A(b)(1) constituted a first

“strike” under 28 U.S.C. § 1915(g). Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172,

1175 (10th Cir. 2011). Because this appeal also is frivolous, we impose a second

“strike” under § 1915(g). See Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1249

(10th Cir. 2007).


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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