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

                             FOR THE TENTH CIRCUIT                          January 5, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
HAZHAR A. SAYED,

      Plaintiff - Appellant,

v.                                                          No. 15-1157
                                               (D.C. No. 1:13-CV-02961-CMA-MJW)
ROBERTA BROMAN; YVETTE                                       (D. Colo.)
BROWN, F.C.F., Law Library, C/O,
Individual Capacity; SGT PATRICK, Mail
Room C/O F.C.F., individual capacity;
SGT TAFOYA, Mail Room C/O F.C.F.,
individual capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
                 _________________________________

      Hazhar A. Sayed, a Colorado prisoner proceeding pro se, appeals from the

district court’s Fed. R. Civ. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 suit.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      Sayed’s original complaint had three claims, but he was only permitted to

proceed with an Eighth Amendment claim against defendant Roberta Broman. Sayed

filed an amended complaint alleging Broman had denied a May 2012 request to be

“seen for on going dental issues and to have my teeth cleaned again,” and he “still

suffer[ed] from tooth problems which have caused me to suffer a great deal.” R. at

112. Broman moved to dismiss under Rule 12(b)(6). In response, Sayed submitted

an affidavit adding a few more details.

      The magistrate judge considered the amended complaint to be deficient

because its “vague generalities” did not adequately allege the objective component of

an Eighth Amendment claim for denial of medical care. R. at 190. He further

considered the affidavit, but determined it did not “provide enough facts to nudge

[Sayed’s] claim across the line from conceivable to plausible.” Id. at 191. Thus, he

recommended dismissal of the complaint. Because he thought Sayed might be able

to muster sufficient facts to support a plausible claim, however, he also

recommended Sayed be given the opportunity to file a second amended complaint.

Sayed filed timely objections. The district judge conducted a de novo review and

adopted the recommendation, dismissing the complaint but allowing Sayed to file a

second amended complaint.

      Sayed’s second amended complaint consisted of a heading and four sentences

substantially duplicating the affidavit he had previously filed. Broman again moved

to dismiss under Rule 12(b)(6). Upon review the magistrate concluded Sayed had

                                           2
failed to supply sufficient additional facts to support a plausible Eighth Amendment

claim and recommended dismissal of the complaint. This time, he recommended

dismissal with prejudice because Sayed’s past attempts to amend had proven futile.

Sayed filed timely objections. The district judge conducted a de novo review and

adopted the recommendation, dismissing Sayed’s claims with prejudice.

       Sayed timely filed a motion to alter or amend the judgment claiming to have

sufficiently stated a claim, and in the alternative, briefly requesting leave to file a

third amended complaint. The district judge denied the motion.

                                       Discussion

       Sayed argues his complaint was sufficient, but if it was not, he should have

been allowed another opportunity to amend before dismissing the action with

prejudice. We review only the order dismissing the second amended complaint.1

       We review a Rule 12(b)(6) dismissal de novo. Gee v. Pacheco, 627 F.3d 1178,

1183 (10th Cir. 2010). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a

short and plain statement of the claim showing that the pleader is entitled to relief.’”

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). And a pro se litigant is

entitled to a liberal construction of his pleadings. See id. at 94. Nevertheless, under

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.

662 (2009), federal pleading “‘demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.’” Gee, 627 F.3d at 1184 (quoting Iqbal, 556 U.S.

       1
        Sayed’s opening brief focuses on the merits of the dismissal with prejudice
and does not adequately raise any issues arising from the denial of the post-judgment
motion.
                                             3
at 678). A complaint is insufficient “if it tenders naked assertions devoid of further

factual enhancement.” Iqbal, 556 U.S. at 678 (brackets and internal quotation marks

omitted).

      To survive a motion to dismiss, a complaint must contain sufficient factual
      matter, accepted as true, to state a claim to relief that is plausible on its
      face. 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. (citation and internal quotation marks omitted).

      “Iqbal establishes the importance of context to a plausibility determination.”

Gee, 627 F.3d at 1185. An Eighth Amendment medical-care claim has an objective

prong—the deprivation was sufficiently serious—and a subjective prong—the

official was deliberately indifferent. See Estelle v. Gamble, 429 U.S. 97, 106 (1976)

(“In order to state a cognizable claim, a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.”).

      The district judge quite properly concluded the second amended complaint to

have failed to include sufficient facts to establish a plausible Eighth Amendment

claim. The allegations are conclusory, naked statements of the type held insufficient

in Iqbal, 556 U.S. at 678. The allegations regarding the need for, and the denial of,

treatment do not provide sufficient information to permit one to conclude the

deprivation may have been sufficiently serious, and the allegations regarding

Broman’s knowledge are clearly insufficient information to meet the deliberately

indifferent requirement for Eighth Amendment claims.



                                            4
      We see no error in dismissing the action with prejudice without allowing

Sayed another try at adequate pleading. Of course, an action ought not be dismissed

with prejudice unless “it is obvious that the plaintiff cannot prevail on the facts he

has alleged and it would be futile to give him an opportunity to amend.” Gee,

627 F.3d at 1195 (internal quotation marks omitted). But Sayed was afforded an

opportunity to amend, which proved futile because he did not add any new facts.

Moreover, the magistrate explained how the affidavit was insufficient, see id. at 1186

(“[A] careful judge will explain the pleading’s deficiencies so that a prisoner with a

meritorious claim can then submit an adequate complaint.”), but Sayed simply

re-submitted substantially the same allegations. In addition, the post-judgment

request to amend was cursory, failing to give the district judge reason enough to

justify another opportunity to amend. We also note Sayed’s failure to submit a

formal motion to amend or a proposed third amended complaint, which would have

aided the district court greatly in determining whether he could state a plausible

claim. See D.C.COLO.LCivR 15.1(b) (requiring a party who files an opposed motion

for leave to amend a pleading to attach a copy of the proposed amended pleading).




                                            5
                                      Conclusion

      Sayed’s motion to proceed without prepayment of costs and fees is granted.

But only prepayment of fees is excused, not the fees themselves. Sayed remains

liable for the full amount of all appellate filing and docketing fees ($550) and he

must continue making payments to the clerk of the district court until all fees have

been paid in full. The judgment of the district court is affirmed.


                                            Entered for the Court


                                            Terrence L. O’Brien
                                            Circuit Judge




                                           6
