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

                               TENTH CIRCUIT                    December 19, 2014
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
 LYNN EUGENE SCOTT,

             Plaintiff – Appellant,
                                                       No. 14-1166
 v.                                       (D.C. No. 1:13-CV-00069-WJM-KMT)
                                                      (D. Colorado)
 MARY CARLSON,

             Defendant – Appellee.


                          ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      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.

      Plaintiff and Appellant, Lynn Eugene Scott, proceeding pro se, appeals the

dismissal of his 42 U.S.C. § 1983 case, and the denial of his motion to amend his


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
complaint. For the following reasons, we affirm the dismissal and the denial of

the motion to amend.

      Mr. Scott is a former inmate of the Colorado Department of Corrections

(“CDOC”). He claims that he should have been released from the CDOC on May

3, 2013, although he was not in fact released until June 13, 2013. 1 Mr. Scott also

claims he was incarcerated some three and one-half years longer than the time to

which he was sentenced. Mr. Scott’s § 1983 claim asserts that the Defendant,

Mary Carlson, was the head of time computation at the CDOC. He alleges that he

was detained for an excessive period of time because Ms. Carlson was “grossly

negligent, and or had reckless disregard, or was . . . deliberately indifferent to the

constitutional rights of [Mr. Scott].” Prisoner Compl. at 4; R. Vol. 1 at 16. He

asserts that she thereby violated his Fifth, Eighth and Fourteenth Amendment

rights. He also asserted an otherwise undeveloped “state law claim.” Id. at 18.

He sought various damages.




      1
        We note that different pleadings provide us with different exact dates for
Mr. Scott’s scheduled release and his actual release date. For example, Mr.
Scott’s original Complaint, filed on January 11, 2013, listed those release dates as
May 3 and June 13, 2012. His amended Complaint, filed on February 1, 2013,
listed them as the same. The magistrate judge’s Recommendation lists those
dates as May 3 and June 13, 2012. The Order of the district court overruling Mr.
Scott’s objections, adopting the Recommendation, granting the motion to dismiss
and denying Mr. Scott’s motion to amend his complaint lists the dates as in 2013.
Nothing of moment flows from the precise dates being in a particular year. Thus,
the confusion is immaterial to our decision.

                                          -2-
      The Defendant Ms. Carlson filed a motion to dismiss, arguing that Mr.

Scott failed to allege any facts showing that Ms. Carlson personally participated

in any of the alleged constitutional violations set forth in the Complaint. The

district court referred the motion to dismiss to a magistrate judge for a report and

recommendation. Mr. Scott then filed a motion to amend, which the court also

referred to the magistrate judge.

      The magistrate judge issued a Report and Recommendation on October 9,

2013, recommending that Ms. Carlson’s motion to dismiss be granted, and Mr.

Scott’s motion to amend be denied. Mr. Scott filed objections to the Report and

Recommendation. The district court accordingly reviewed the Report and

Recommendation de novo and ultimately adopted it, overruled the objections,

granted the motion to dismiss, denied the motion to amend, and dismissed the

case. This appeal followed.

      “It is axiomatic that, to prevail on a damages claim for a constitutional

violation pursuant to § 1983, the plaintiff must show that the defendant, acting

under color of state law, ‘personally participated in the alleged violation.’”

Robertson v. Las Animas County Sheriff’s Dept., 500 F.3d 1185, 1193 (10th Cir.

2007) (quoting Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996)). “The

plaintiff must show the defendant personally participated in the alleged violation,

and conclusory allegations are not sufficient to state a constitutional violation.”

Jenkins, 81 F.3d at 994; see also Porro v. Barnes, 624 F.3d 1322, 1327-28 (10th

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Cir. 2010) (“To establish a violation of § 1983 . . . the plaintiff must establish a

deliberate, intentional act on the part of the defendant to violate the plaintiff’s

legal rights.”) (further quotations omitted); Dodds v. Richardson, 614 F.3d 1185,

1195 (10th Cir. 2010).

      The district court found that Mr. Scott’s conclusory and vague statements

failed to allege any facts showing that Ms. Carlson personally participated in any

of the claimed constitutional violations. As the Report and Recommendation

(adopted by the district court) stated, the “Complaint is devoid of any facts

showing that Defendant participated in the computation of Plaintiff’s sentence,

the determination of his release date, or any event resulting in his alleged over-

detention.” Report & Recommendation at 5; R. Vol. 1 at 65. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also

Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012); Bixler v.

Foster, 596 F.3d 751, 756 (10th Cir. 2010). We agree that Mr. Scott’s Complaint

fails to allege facts showing Ms. Carlson’s personal participation. We therefore

also agree with the district court that the Complaint must be dismissed.

      The district court then addressed Mr. Scott’s motion to amend his

Complaint. Pursuant to Fed. R. Civ. P. 15(a)(2), the court has discretion to grant

a party leave to amend his pleadings. “In the absence of any apparent or declared

reason . . . the leave sought should, as the rules require, be ‘freely given.’”

                                          -4-
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Cohen v. Longshore, 621

F.3d 1311, 1313 (10th Cir. 2010). We review that decision to deny leave to

amend for abuse of discretion. U.S. ex. rel. Ritchie v. Lockheed Martin Corp.,

558 F.3d 1161, 1166 (10th Cir. 2009).

      We have stated that “[a]lthough Fed. R. Civ. P. 15(a) provides that leave to

amend shall be given freely, the district court may deny leave to amend where

amendment would be futile. A proposed amendment is futile if the complaint, as

amended, would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892,

901 (10th Cir. 2004) (further quotation omitted); see also Full Life Hospice, LLC

v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013). Mr. Scott’s motion to amend

included claims that the “custom, policy established by [Ms. Carlson]” as “Head

of Time Computations of the [CDOC]” or “the exercise of control or direction by

virtue of the office of the Head of Time Computations [and/or] her lack of

supervision [and/or] failure to train” caused Mr. Scott to serve more time than he

was sentenced to serve. Mot. to Amend at 2-3; R. Vol. 1 at 56-57. The district

court considered these claims, as well as an affidavit referenced in his motion to

amend, and concluded that Mr. Scott’s “proposed amendments do not cure the

deficiencies in the Complaint.” Order at 6-7; R. Vol. 1 at 87-88.

      As the court further stated, “[i]t is not enough for Plaintiff to allege that

Defendant was ‘Head of Time Computations of CDOC.’ Plaintiff must establish

‘a deliberate, intentional act by [Defendant] to violate constitutional rights.’” Id.

                                          -5-
at 7; R. Vol. 1 at 88 (quoting Jenkins, 81 F.3d at 995) (further quotations

omitted). The district court concluded that Mr. Scott has failed to do so in this

case, either in his Complaint as written or in his proposed amendment. We thus

agree that the proposed amendment would have been futile.

      In short, we agree with the district court’s dismissal of this § 1983 action

and its denial of Mr. Scott’s motion to amend. For the foregoing reasons, the

order in this case is AFFIRMED. Appellant<s motion for leave to proceed in

forma pauperis is DENIED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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