                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          March 16, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court


    ROMEL ABU-FAKHER,

              Plaintiff-Appellant,

     v.                                                   No. 05-3132
                                                   (D.C. No. 04-CV-3168-JAR)
    CHARLES BODE, CSI Master                                (D. Kan.)
    Sergeant; L. E. BRUCE, Warden,
    Hutchinson Correctional Facility;
    WILLIAM L. CUMMINGS, Secretary
    of Corrections Designee,

              Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and McCONNELL, Circuit Judges.


          After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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. 36.3.
      Mr. Abu-Fakher filed a 42 U.S.C. § 1983 complaint alleging that he broke

his finger when Master Sergeant Charles Bode, a guard at Hutchinson

Correctional Facility (HCF) in Kansas, knocked him to the ground while running

to respond to a fight between two other inmates, and that he was not given

adequate medical treatment for his injury. In addition to suing Master Sergeant

Bode, Mr. Abu-Fakher also sued L.E. Bruce, HCF’s warden; and William L.

Cummings, who responded to Mr. Abu-Fakher’s final administrative appeal as the

designee of the Kansas Secretary of Corrections. Mr. Abu-Fakher alleged that

Master Sergeant Bode used excessive force in knocking him down and that

Warden Bruce and Mr. Cummings were deliberately indifferent to his serious

medical needs by denying his grievances, all in violation of the Eighth

Amendment. Mr. Abu-Fakher asked the court to order that his finger be treated

by a private specialist, that he be awarded $100,000 in damages, and that Master

Sergeant Bode be ordered to have no further contact with him.

      The district court granted the defendants’ motions to dismiss and dismissed

the complaint on three grounds: (1) that Mr. Abu-Fakher’s monetary damages

claims against the defendants in their official capacities were barred by the

Eleventh Amendment, (2) that, to the extent that Mr. Abu-Fakher was seeking

prospective injunctive relief, his factual allegations were insufficient to state an

Eighth Amendment claim upon which relief could be granted, and (3) that the


                                          -2-
defendants were entitled to qualified immunity. Mr. Abu-Fakher appeals from

this decision. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                 Standard of Review

      We review de novo the district court’s dismissal for lack of subject matter

jurisdiction pursuant to the Eleventh Amendment. Joseph A. ex rel. Wolfe v.

Ingram, 275 F.3d 1253, 1259 (10th Cir. 2002). “[I]n deciding a motion to dismiss

pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any

documents attached as exhibits to the complaint.” Oxendine v. Kaplan, 241 F.3d

1272, 1275 (10th Cir. 2001). In reviewing the grant of a motion to dismiss for

failure to state a claim upon which relief can be granted, we, like the district

court, accept all well-pleaded allegations, taken in the light most favorable to

Mr. Abu-Fakher, as true. E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d

1297, 1305 (10th Cir. 2001). We then decide whether such allegations establish

that defendants violated the Eighth Amendment’s prohibition against cruel and

unusual punishment. Id. We need not, however, accept as true conclusory

allegations unsupported by factual allegations. Id. at 1306.

                                       Analysis

      Mr. Abu-Fakher sued all three defendants in their official capacities and

Warden Bruce and Mr. Cummings in their individual capacities as well. Mr.

Abu-Fakher’s request for money damages against the defendants in their official


                                          -3-
capacities is barred by the Eleventh Amendment to the Constitution. White v.

Colorado, 82 F.3d 364, 366 (10th Cir. 1996). His request for prospective

injunctive relief against the defendants in their official capacities, however, is not

barred by the Eleventh Amendment, id.; nor, of course, is his request for money

damages against the defendants in their individual capacities. But in order to

establish his entitlement to these forms of relief, Mr. Abu-Fakher’s complaint

must include sufficient factual allegations to state a claim for an Eighth

Amendment Violation. 1 Mr. Abu-Fakher’s complaint fails to meet this standard.

               Claim Regarding Collision with Master Sergeant Bode

      Mr. Abu-Fakher alleged that Master Sergeant Bode collided with him from

behind while responding to a fight, pushing him to the ground and breaking his

finger. Although Mr. Abu-Fakher makes the conclusory assertion that “[Bode]

willfully and maliciously knocked [him] Down,” R., Doc. 1 at 3, his factual

allegations do not support this assertion.

      Ordinarily, an excessive force claim involves two prongs: (1) an
      objective prong that asks if the alleged wrongdoing was objectively
      harmful enough to establish a constitutional violation, and (2) a
      subjective prong under which the plaintiff must show that the
      officials act[ed] with a sufficiently culpable state of mind.


1
      Although the district court purported to apply the doctrine of qualified
immunity in regards to both Mr. Abu-Fakher’s official capacity claims seeking
prospective injunctive relief and his individual capacity claims, it based its
holdings in both instances on Mr. Abu-Fakher’s failure to demonstrate that
defendants’ actions violated a constitutional or statutory right.

                                          -4-
Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003) (internal quotation marks

omitted). In Smith, this court further held that

      [t]he subjective element of an excessive force claim turns on whether
      force was applied in a good faith effort to maintain or restore
      discipline or maliciously and sadistically for the very purpose of
      causing harm.

Id. (internal quotation marks omitted). While Mr. Abu-Fakher’s allegation of a

broken finger is sufficient to meet the test’s objective prong, his allegations

regarding the collision are insufficient to meet the test’s subjective prong.

      In his complaint, Mr. Abu-Fakher alleged that:

      [o]n the evening of 1-13-04, [he] was returning from the meal-line
      when all of a sudden [he] was shoved forcefully to the ground by []
      [Bode]; [Bode] came up from behind and knocked [him] down.

R., Doc. 1 at 2. In an administrative appeal he alleged that Master Sergeant Bode

“pushed [him] down with his hands as [Bode] was responding to an emergency (A

two inmates’ fight emergency.)” Id., Attach. 4 at 2. He claimed that “[a] couple

of inmates and an officer assisted me up, however, [Bode] never even said

‘excuse me,’ id., Attach. 2 at 1, and that “[Bode] continues to remain

disrespectful and unrepentant.” Id. at 5. Mr. Abu-Fakher also stated that he had

no radio, had no idea that guards were responding to a fight, and that Master

Sergeant Bode “ha[d] no absolute right of way without an expressed verbal order

giving way to his intent to pass.” Id., Attach. 2 at 2. Warden Bruce, in his

response to Mr. Abu-Fakher’s grievance, stated that his review had shown there

                                          -5-
was indeed a collision between Master Sergeant Bode and Mr. Abu-Fakher, but

that “the simple facts are that there is nothing to indicate that the collision was

anything other than an unfortunate, unintentional incident occurring when the

officer inadvertently ran into you as he responded to an emergency.” Id., Attach.

3. The only factual allegations relied on by Mr. Abu-Fakher to support a claim

that Master Sergeant Bode acted “maliciously and sadistically for the very

purpose of causing harm,” Smith, 339 F.3d at 1212, were that Master Sergeant

Bode used his hands to push him to the ground and that the Master Sergeant

“knew who [he] was from a previous encounter in BL on 1-12-04.” R., Doc. 1,

Attach. 2 at 2. These sparse allegations conflict with Mr. Abu-Fakher’s apparent

acknowledgment of the unintentional nature of the collision found in his assertion

that Master Sergeant Bode “ha[d] no absolute right of way without an expressed

verbal order giving way to his intent to pass,” and his request that Master

Sergeant Bode “be directed on how to appropriately [respond] to an emergency in

a crowded area.” Id. Consequently, Mr. Abu-Fakher failed to state an Eighth

Amendment claim for which relief could be granted concerning the collision.

      Eighth Amendment Claim Regarding Medical Treatment Of The Injury

      Mr. Abu-Fakher’s factual allegations likewise failed to state an Eighth

Amendment claim regarding his medical treatment. Mr. Abu-Fakher claimed that

immediately after the incident he was given painkillers and a bag of ice for his


                                          -6-
finger and told to visit the facility doctor the next day. He claimed that, despite

the fact that his finger was x-rayed and he was told that it was not broken, his

hand remained swollen over the next few days, continued to cause him pain, and

became discolored. He alleged that it took ten days for his x-ray to be

re-examined and a fracture discovered, but that the clinic only bandaged his hand

and sent him back to his cell. He complained that “[t]he facility clinic didn’t

properly treated [sic] me nor did sent [sic] me to outside clinic to be treated[.]

The Warden Mr. L.E. Bruce, as well as The Secretary of Corrections designee,

Mr. William M. Cumming[s] ignored my rights to proper treatment.” R., Doc. 1

at 3. He claimed that his finger was “still untreated,[ ]or damaged.” Id. at 5.

      “A prison official’s deliberate indifference to an inmate’s serious medical

needs is a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). We have

said that “[o]ur cases recognize two types of conduct constituting deliberate

indifference” to a serious medical need. Sealock v. Colorado, 218 F.3d 1205,

1211 (10th Cir. 2000). “First, a medical professional may fail to treat a serious

medical condition properly.” Id. Second, a prison official may “prevent an

inmate from receiving treatment or deny him access to medical personnel capable

of evaluating the need for treatment.” Id. Here the second type of claim applies

as neither Warden Bruce nor Mr. Cummings are medical professionals.


                                          -7-
      The concept of “[d]eliberate indifference involves both an objective and a

subjective component.” Id. at 1209 (internal quotation marks omitted). The

objective component is met if the medical need is “one that has been diagnosed by

a physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Id. (internal

quotation marks omitted). “The subjective component is satisfied if the official

knows of and disregards an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and [he] must also draw the inference.”

Mata, 427 F.3d at 751 (internal quotation marks omitted).

      Here, Mr. Abu-Fakher’s factual allegations do not meet the test’s subjective

component. The complaint and the grievances show that the fracture was

eventually treated, and that Mr. Abu-Fakher filed his grievance the next day

asking to see an outside specialist. In his grievance he stated that the x-rays

showed that “[his] finger was broken and dislocated, then, instead of setting the

bones and placing my finger in a splint, I was wrapped in an ace bandage and told

to return in two weeks. I was given nothing for pain.” R., Doc. 1, Attach. 2 at

1-2. Warden Bruce’s response to the grievance was: “I understand that you have

had continual medical care regarding the injury and that this care is currently

ongoing. If you are not pleased with the course of treatment, you should make


                                         -8-
your concerns known to medical staff at your next scheduled appointment.” Id.,

Attach. 3 at 1. Similarly, Mr. Cummings’ response was:

       We have asked the Kansas Department of Corrections, Health Care
       Contact Consultant to review the care and treatment that [the inmate
       is] receiving. We have been advised that this review is now
       complete. The information that we have been provided indicates that
       the care and treatment that is currently being made available to the
       inmate is consistent with prevailing community standards. Mr.
       Abu-Fakher’s x-ray suggests that he has a healed fracture, as read by
       the health care practitioner at HCF.

Id., Attach. 5 at 1.

       Thus, it is clear from the grievances attached to the complaint that Warden

Bruce and Mr. Cummings investigated Mr. Abu-Fakher’s complaints and were

assured that he was receiving medical treatment. The fact that Mr. Abu-Fakher

alleges that he notified Warden Bruce and Mr. Cummings that he did not agree

with the treatment he was receiving and wanted to see a private specialist is not

sufficient to show that they were (1) “aware of facts from which the inference

could be drawn that a substantial risk of serious harm” to Mr. Abu-Fakher

existed, (2) had drawn that inference, and (3) had been deliberately indifferent to

it. Mata, 427 F.3d at 751. “[A] prisoner who merely disagrees with a diagnosis

or a prescribed course of treatment does not state a constitutional violation.”

Perkins v. Kansas Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999).

                 Mr. Abu-Fakher’s Remaining Allegation On Appeal



                                         -9-
      Mr. Abu-Fakher also raises other points of error on appeal. He appears to

allege that the district court erred in converting the defendants’ motion for

dismissal to a motion for summary judgment without giving him proper notice. In

this case, however, the district court granted the motion to dismiss without

considering materials outside the complaint, specifically noting this fact in a

footnote. See R., Doc. 33 at 12 n.34. To the extent Mr. Abu-Fakher is arguing

that he should have been allowed to amend his complaint prior to dismissal, we

note that: (1) he failed to respond to Master Sergeant Bode’s motion to dismiss,

(2) his response to Warden Bruce and Mr. Cummings’ motion to dismiss added no

additional factual allegations regarding his claims, (3) he never requested leave to

amend his complaint, and (4) he has not stated on appeal what additional factual

allegations he would have made if he had been asked to amend his complaint. In

addition, we note that Mr. Abu-Fakher has filed a motion with this court seeking

to amend his complaint. The proposed amended complaint included with the

motion seeks to add new claims and defendants to his action but does not include

any additional factual allegations regarding his present claims. Here, both

motions to dismiss filed by the defendants alleged that Mr. Abu-Fakher had failed

to make factual allegations sufficient to state an Eighth Amendment claim,

putting Mr. Abu-Fakher on notice of the potential deficiencies. The district court

did not err by not sua sponte ordering Mr. Abu-Fakher to amend his complaint.


                                         -10-
      Finally, Mr. Abu-Fakher alleges that the district court erred in denying

certain motions as moot following its order dismissing his complaint. In a

footnote, the district court held that it was denying five of Mr. Abu-Fakher’s

motions as moot in light of its dismissal of the complaint. 2 We find no error in

the district court’s denial of these motions. The denial of Mr. Abu-Fakher’s

Motion to Appoint Counsel, however, deserves further comment.

      We review the denial of Mr. Abu-Fakher’s motion to appoint counsel for

abuse of discretion. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

Under 28 U.S.C. § 1915(e)(1), a district court may appoint counsel to an indigent

prisoner bringing a civil rights claim in appropriate circumstances. Other than

stating that Mr. Abu-Fakher’s motion was moot, the district court provided no

reasoning for its denial. A district court’s failure to provide reasoning for its

denial does not automatically equate to an abuse of discretion and we may

independently examine the motion’s merits. See Rucks, 57 F.3d at 979. In doing

so we consider “the merits of the litigant’s claims, the nature of the factual issues

raised in the claims, the litigant’s ability to present his claims, and the complexity



2
 The five motions were: (1) Motion to Reinstate Plaintiff’s Law Library Law
Books and Legal Service Access, (2) Motion for Reconsideration of Order
Granting in forma pauperis, Denying Motion to Transfer to Federal Custody and
Denying Motion for Protective Order, (3) Motion for Jury Trial, (4) Motion for
Ruling (seeking an update or an examination of his case), and (5) Motion to
Appoint Counsel. R., Doc. 33 at 2 n.5.

                                         -11-
of the legal issues raised by the claims.” Id. (internal quotation marks omitted).

Here, it is clear that Mr. Abu-Fakher understood the basics of his Eighth

Amendment claims and was granted the liberal treatment accorded pro se

litigants. The issues involved were not particularly complex and, while he argues

that he is untrained in the law, the same may be said for any pro se claimant. See

id. In short, Mr. Abu-Fakher’s claims failed because of the inadequacy of his

factual allegations and not because of his lack of legal training.

                                      Conclusion

      Because Mr. Abu-Fakher’s damage claims against the parties in their

official capacity are barred by the Eleventh Amendment and because his factual

allegations failed to state a claim for which relief could be granted as to his

remaining claims, the district court’s judgment is AFFIRMED.

      Mr. Abu-Fakher’s Motion for Leave to Proceed on Appeal Without

Prepayment of Costs or Fees is GRANTED, and he is reminded that he is

obligated to continue making partial payments toward the balance of his assessed

fees and costs until they are paid in full.

      Mr. Abu-Fakher’s motion seeking to file an amended complaint adding new

parties and claims is DENIED. Appellate courts are not trial courts and claims

must be brought in the first instance in the district court. See Fed. R. Civ. P. 3.

This denial is without prejudice to any proper future district court filings.


                                          -12-
       Entered for the Court



       Michael W. McConnell
       Circuit Judge




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