UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GREGORY C. KRUG, Plaintiff - Appellant,

v. WARDEN KASTNER, Defendant - Appellee. No. 16-6052 (D.C. No. 5:15-CV-00476-HE) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MURPHY , and PHILLIPS , Circuit Judges.

________________ _________________ Gregory Krug appeals the dismissal without prejudice of his pro se complaint against the warden of the Fede ral Bureau of Prisons Transf er Center (FTC) in Oklahoma City, Oklahoma. His complaint alleged that the warden vi olated the Eighth Amendment’s prohibition on cruel and unusual punishment by maintaining an excessively cold envir onment at the facility. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971) (recogn izing cause of action for constitutional violations by federal employees). In particular, Mr. Krug asserted that

* After examining the briefs and appellate reco rd, this panel has determined unanimously that oral argument would not ma terially 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 This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 29, 2016
Elisabeth A. Shumaker Clerk of Court2 during his 26-day incarceration at FTC in August and September of 2014, the temperature in his cell was about 50 degrees Fahrenheit, yet he was provided only a tshirt and a very thin blanket, “prevent[ing] him from sleeping more than one hour or so every night.” Complaint at 2, R. at 5. The magistrate judge recommended dismissal. The district court agreed and dismissed the case under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. We affirm. “We review de novo the district court's decision to dismiss an [in forma pauperis] complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failu re to state a claim.” Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007). In doing so, “[w]e a pply the same standard of review . . . that we employ for Federal Ru le of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Id. That is, we “accept as true the well pleaded factual allegations and then determine if the plaintiff has provided enough facts to state a claim to relief that is plausible on its face.” Hogan v. Winder , 762 F.3d 1096, 1104 (10th Cir. 2014) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows th e court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (internal quotation marks omitted). Because Mr. Krug is proceeding pro se, we construe his complaint liberally. See Kay , 500 F.3d at 1218. “The Constitution does not mandate comfor table prisons, but neither does it permit inhumane ones, and it is now settled that th e treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan , 511 U.S. 825, 832 (1994) (citations and internal3 quotation marks omitted). To establis h a claim under the Eighth Amendment for unconstitutional conditions of confinement, a pr isoner has to make two showings. First, he has to show that the deprivation is “suffi ciently serious”—that is, “a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities.” Id. at 834 (internal quotation marks omit ted). Second, he must prove that the defendant prison official had “a sufficien tly culpable state of mind,” which in a case like this requires “deliberate indifferenc e to inmate health or safety.” Id. (internal quotation marks omitted). Deliberate indifference is a subjective test. See id. at 837. “A prison official cannot be fou nd liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless th e official knows of and disregards an excessive risk to inmate health or safety.” Id. We need not address the first requirement because we agree with the district court that Mr. Krug failed to plead sufficient facts to show that the warden was deliberately indifferent to his conditions of confinemen t. No allegations in his pleadings would support that the warden knew that the prison’s temperature would impact Mr. Krug’s ability to sleep at night. Mr. Krug did allege that he complained to the warden. But his letter to the warden, which he submitted as an a ttachment to his compla int, said only: “I hereby request that you promp tly inform me as to why your staff will not issue either sweaters or jackets to those inmates who requ est either of those items, notwithstanding the fact that you constantly ma intain this facilities’ temperat ure below 60 degrees F.” R. at 40. There is no reference to sleeping co nditions; and the reference to sweaters and4 jackets suggests that he is complaining about conditions during the day. Yet it was Mr. Krug’s discomfort at night that a llegedly jeopardized his health. Nor does the other evidence relied on by M r. Krug indicate that the warden knew about unsafe temperatures. First, he seems to imply that it would have been self-evident to the warden from observing the inmates. But Mr. Krug made no allegation that any other inmate had complained of the temperatur e. This might be because, as Mr. Krug admitted in his objections to the magistrate ju dge’s report, he was particularly susceptible to cold because of a spleen condition. See R. at 29 n*. Again, however, Mr. Krug never alleged that the warden had reason to know about his susceptibility to the cold. Second, he contends that the warden must have know n how cold the prison was kept because he likely participated in decisions involving la rge expenditures, like those for heating and cooling. We disagree. This contention is too speculative to sup port Mr. Krug’s claim. Finally, several portions of the complaint discu ss the actions of prison officials other than the warden. But “Governmen t officials may not be held liable for the unconstitutional conduct of their subordin ates under a theory of respondeat superior .” Ashcroft v. Iqbal , 556 U.S. 662, 676 (2009). In sum, the comp laint fails to allege that the warden was deliberately indifferent to the condi tions of Mr. Krug’s confinement. We AFFIRM the district court. We remind Mr. Krug that he must continue making partial payments until pa yment of all assessed costs and fees is complete, in5 accordance with the di strict court’s order of March 22, 2016. Entered for the Court

Harris L Hartz Circuit Judge