FILED
United States Court of Appeals
Tenth Circuit
November 2, 2010
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ARTHUR PRICE,
Plaintiff-Appellant, No. 10-1336
v. (D. of Colo.)
EXECUTIVE DIRECTOR OF THE (D.C. No. 10-cv-715-ZLW)
COLORADO DEPARTMENT OF
CORRECTIONS, and WARDEN OF
THE BUENA VISTA
CORRECTIONAL COMPLEX,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Arthur Price, a Colorado state prisoner proceeding pro se, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint. Having
jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s decision.
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
In his complaint, Price asserted he was denied due process and equal
protection at both a prison disciplinary hearing and an administrative segregation
hearing. He also contended the conditions of confinement in administrative
segregation subjected him to cruel and unusual punishment in violation of the
Eighth Amendment. Price named the executive director of the Colorado
Department of Corrections and the prison warden of the Buena Vista Correctional
Complex as defendants.
The magistrate judge instructed Price to file an amended complaint
clarifying the nature of his claims and alleging specific facts demonstrating that
each defendant personally participated in the deprivation of a federal right. The
magistrate judge explained that supervisory officials are not liable under § 1983
solely because their employees inflict injury on a plaintiff, see Duffield v.
Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008), and that to state a claim Price
must show an “affirmative link [] between the constitutional deprivation and
either the supervisor’s personal participation, his exercise of control or direction,
or his failure to supervise,” Butler v. Norman, 992 F.2d 1053, 1055 (10th Cir.
1993).
In response, Price filed an amended complaint alleging the warden “was
aware of plaintiff being set up by staff [] and condoned it.” R. at 14.
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Finding the claims legally frivolous, the district court dismissed the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(I). The court noted Price made
no allegations connecting the executive director to his due process, equal
protection, or Eighth Amendment claims. The court also held that Price’s “vague
and conclusory allegation that individuals not named as Defendants acted with the
support of the warden of the Buena Vista facility are not sufficient to demonstrate
that the warden personally participated in the asserted constitutional violations.”
R. at 23–24. In a subsequent order, the district court denied Price’s motion to
appeal in forma pauperis.
Price appeals the district court’s dismissal of his complaint and renews his
motion to continue in forma pauperis.
II. Discussion
Price proceeded in forma pauperis below, and is thus subject to the
strictures of § 1915. Under § 1915(e)(2)(B)(I), the district court must dismiss an
in forma pauperis complaint if it is “frivolous or malicious.” A complaint is
frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Dismissal is only appropriate where a claim
is “based on an indisputably meritless legal theory” Fogle v. Pierson, 435 F.3d
1252, 1259 (10th Cir. 2006) (quotations omitted).
We review a district court's dismissal for frivolousness for abuse of
discretion. Id. Because Price is a pro se litigant, we construe his pleadings and
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other papers generously. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th
Cir. 2007).
After careful review of the record, we conclude the district court did not
abuse its discretion in dismissing Price’s complaint as frivolous. As the district
court noted, Price failed to explain how the named defendants were personally
involved in the violation of his constitutional rights, despite having been advised
that he would need to do so. His single attempt to link the warden to his claims
of due process and equal protection violations in his prison hearings is a
conclusory statement (that the warden condoned the mistreatment) unsupported by
underlying facts, and is therefore insufficient. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (“[T]he court need accept as true only the plaintiff’s well-
pleaded factual contentions, not his conclusory allegations.”); see also Abbott v.
McCotter, 13 F.3d 1439, 1441 (10th Cir. 1994) (upholding dismissal of
conclusory equal protection claim for frivolousness).
III. Conclusion
For the foregoing reasons we AFFIRM the dismissal of Price’s § 1983
claims. We also DENY Price’s motion to proceed in forma pauperis on appeal
and order him to pay the full amount of the filing fee. We remind him of his
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obligation to pay the filing fee even on an appeal that has been dismissed. See
Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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