UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GLEN FOLSOM, Plaintiff - Appellant,

v. MARK KNUTSON; TRACY MCCOLLUM; JANET DOWLING; DAN DAVIS; CHANDA GRICE; FELICIA HARRIS; MIKE MC DOUGAL; LT. LEE; JIM FARRIS; MR. FRANCIS, Defendants - Appellees. No. 16-6296 (D.C. No. 5:13- CV-00632-D) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ Glen Folsom, a state pris oner proceeding pro se, app eals the district court’s Fed. R. Civ. P. 12(b)(6) dismissal of hi s 42 U.S.C. § 1983 civil rights action against various Oklahoma prison officials. Adop ting a magistrate j udge’s 56-page Report and Recommendation (R&R), the district cour t dismissed Mr. Folsom’s claims based

* After examining the briefs and appellate record, th is 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 on failure to state a claim for relief, qua lified immunity, and Eleventh Amendment sovereign immunity . We affirm. I. Background We briefly summarize the allegations in Mr. Folsom’s am ended complaint, which are thoroughly described in the R&R. His allegations cons ist largely of vague generalities without specific factual support. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that “conc lusory allegations without supporting factual averments are insuffici ent to state a claim”). Mr. Folsom alleged that defendant Da n Davis, a prison o fficial at James Crabtree Correctional Center (JCCC), sexually harassed him for several months by commenting while Mr. Folsom showered. But he described only one instance, alleging non-physical ha rassment while Mr. Folsom showered. See Amended Complaint, ROA Vol I, Doc. 43. Mr. Folsom filed a grie vance about this incident. The JCCC warden, defendant Janet Dowling, told Mr. Folsom that JCCC’s Chief of Security was investigating his grievance. Mr. Folsom admitted that, after he filed this grievance, the harass ment stopped and de fendant Davis no longer worked at JCCC. Mr. Folsom allege d without supporting facts that Warden Dowling knew about the harassment and did nothing stop it. Mr. Folsom was later found guilty of battery and menacing against another inmate, and was placed in segregation. 1 He alleged that defe ndant Felicia Harris, a

1 His complaint alleged defendant Chanda Grice, another JCCC prison official, filed false misconduct charges ag ainst him in retaliation fo r his grievance against Mr.3 JCCC law library employee, did not give hi m the policies or fo rms he needed to appeal the misconduct charges and to file a grievance about his placement in segregation. Mr. Folsom was then transferred to th e Oklahoma State Reformatory (OSR). He alleged that defendant Warden Tracy McCollum allowed OSR staff to harass and retaliate against him by not giving him ac cess to law library ma terials, which caused his grievances to be returned as defici ent by defendant Mark Knutson, the Oklahoma Department of Corrections Director’s Design ee. He also allege d that he suffered a mental breakdown at OSR and that Ward en McCollum permitted staff to deny him medical treatment and also tr ansferred him to an overcrowded prison population with no psychiatric care. Mr. Folsom was next transferred to Le xington Correctional Center (LCC). He alleged, all in conclusory terms, that on July 19, 2013 , defendants Mike McDougal, an LCC unit manager, and Josh Lee, an LCC officer, physi cally and verbally abused him; defendant Jim Farris, the LCC warden, verbally abused him, started to beat him, and had LCC staff beat him; and defendant Francis, the LCC Chief of Security, verbally abused him and failed to intervene when LCC staff beat him. Mr. Folsom’s

Davis. The magistrate judge recommended that Mr. Folsom’s claims against Ms. Grice be dismissed because sh e was not properly served. Mr . Folsom failed to timely object to the recommendation. The district court adopted it and di smissed the claims against Ms. Grice for failure to effect service. Mr. Folsom has waived any challenge to this dismissal because he fa iled to object to the R&R. Casanova v. Ulibarri , 595 F.3d 1120, 1123 (10th Cir. 2010) (holding that we apply a firm waiver rule when a party fails to timely and specifically object to the findings and recommendations of a magistrate judge).4 complaint does not provide any detail a bout this alleged phys ical abuse. Mr. Folsom’s five-page grievance form complaining ab out the events of July 19, attached to his complaint, did not allege any physical abuse by any of the defendants. Mr. Folsom claimed all the defendants violated either his Eighth Amendment right to be free from cruel and unusual punishment or his Fourteenth Amendment rights. He sought no minal, compensatory and punitive damages. II. District Court’s Dismissal “To state a claim under § 1983, a plainti ff must allege the violation of a right secured by the Constitution and laws of th e United States, and must show that the alleged deprivation was committed by a pers on acting under color of state law.” West v. Atkins , 487 U.S. 42, 48 (1988). “To surviv e 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.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the re asonable inference that the defendant is liable for the misconduct alleged.” Id

. Mr. Folsom’s complaint did not state wh ether he was suing the defendants in their official or individual capacities or bot h. Adopting the R&R, the district court ruled the Eleventh Amendment barred any o fficial capacity clai m for money damages against any of the state defendants and that such a claim must be dismissed for lack of subject matter jurisdiction. See Ellis v. Univ. of Kan. Med. Ctr ., 163 F.3d 1186, 1196 (10th Cir. 1998) (“[T]he Eleventh Am endment bars federa l court jurisdiction5 over a state agency for both money damages a nd injunctive relief, or a state official acting in her official capacity in a suit for damages. . . .” ). It also dismissed all individual capacity claims agai nst the defendants for failure to state a claim because Mr. Folsom failed to allege sufficient fa cts to show any alle ged conduct plausibly violated his constitutional rights. Specifically as to each defendant: Mr. Davis: The district court, throug h adoption of the R&R, held that Mr. Folsom’s allegation describi ng only the one incident of non-physical harassment by Mr. Davis, “[a]lthough . . . concerning,” R& R at 15, ROA Vol. II, Doc. 179, did not objectively rise to the leve l of seriousness required unde r well-established precedent to state an Eighth Amendment violati on for cruel and unusual punishment. See Barney v. Pulsipher , 143 F.3d 1299, 1310 n.11 (10th Ci r. 1998) (holding that verbal harassment alone is insufficient to state an Eighth Amendment claim); Northington v. Jackson , 973 F.2d 1518, 1524 (10th Cir. 1992) (recognizing that “verbal threats and harassment” are “excluded from the cr uel and unusual puni shment inquiry”). Warden Dowling: The court concluded that Mr. Folsom failed to adequately allege personal participation by Warden Dowling as to any of his claims. See Dodd v. Richardson , 614 F.3d 1185, 1198 (10th Cir. 2010) (holding that a § 1983 plaintiff must plausibly plead each defendant’s pe rsonal participation in a constitutional violation “by virtue of his own conduct and state of mind” ). Mr. Folsom made only conclusory allegations against Warden Do wling. He failed to present factual allegations indicating Ms. Dowling had knowledge of Mr. Davis’s conduct before Mr. Folsom filed his grievance, any role in alleged retaliator y misconduct charges,6 any involvement in Mr. Fols om’s placement in segrega tion, any retaliatory motive related to Mr. Folsom’s transf er to OSR, or any knowledge of risk that the transfer allegedly posed to Mr. Fols om’s health and safety. Ms. Harris, Warden McCollum, Mr. Knut son: The court ruled Mr. Folsom failed to allege facts s howing that Ms. Harris’s al leged actions of giving him incorrect forms contributed to deficiencies in his gr ievance filings, impeded his ability to exhaust his administ rative remedies, or denied him access to the courts. See Lewis v. Casey , 518 U.S. 343, 351-52 (1996) (holdi ng prisoner must allege facts showing defendant’s actions hindered his ability to pro ceed with an actual nonfrivolous legal claim). Similarly, it rule d that Mr. Folsom’s claims alleging that Warden McCollum, Mr. Knutson, and othe r defendants gave him incorrect legal forms or impeded his access to prison librari es lacked any specifi c factual allegation that any action by any of these defe ndants impeded him from pursuing his administrative remedies or his access to the courts. The court also determined that Mr. Folsom’s conclusory allegation that Warden McCollum denied him medical care was insufficient to show Mr. Folsom had any serious medical need or that Wa rden McCollum knowingly disregarded a substantial risk of harm to Mr. Folsom. See Farmer v. Brennan , 511 U.S. 825, 847 (1994) (holding that a prison offici al may only be lia ble under the Eighth Amendment if he knew of, and disregarded, a substantial risk of a serious risk of harm to the inmate). It further found the remainder of Mr. Folsom’s allegations7 against Warden McCollum we re simply recitations of legal cases without any connecting factual allegations about Warden McCollum. Mr. McDougal, Lt. Lee, Mr. Francis, and Mr. Farris: The court ruled that Mr. Folsom’s conclusory allegati ons that defendants Mr. McDoug al, Lt. Lee, Mr. Francis, and Mr. Farris beat him or failed to interv ene to stop the use of excessive force were insufficient to state a plausible Eighth Am endment claim. Mr. Folsom provided no factual allegations that described the amount of force used, the extent of any physical injury, or any of the relevant circumstances. See Hudson v. McMillian , 503 U.S. 1, 7 (1992) (describing factors considered in evaluating an excessive force claim). III. Appeal We review the district court’s grant of a moti on to dismiss de novo. See Broker’s Choice of America, Inc. v. NBC Universal, Inc. , 861 F.3d 1081, 1102 (10th Cir. 2017). Because Mr. Fols om is a pro se litigant, we construe his pleadings liberally, but we do not se rve as his advocate. Hall , 935 F.2d at 1110. On appeal, Mr. Folsom presents no meritorious argum ents challenging th e district court’s rulings. He repeats the same allegations in his complain t, cites numer ous cases, and summarily asserts that dismissal was improper. We have liberally reviewed all pertin ent materials, incl uding the complaint, briefing on the motions to dism iss, the R&R, the district court’s dismissa l order, and the briefing on appeal. We ag ree with the district court, for substantia lly the same reasons stated in the magist rate judge’s September 4, 201 5 R&R, that Mr. Folsom’s complaint fails to state any plausible constituti onal violation by any of the8 defendants, and that the offi cial capacity claims were pr operly dismissed for lack of subject matter jurisdiction due to Eleventh Amendment immunity. The district court denied Mr. Folsom’s motion to proceed in forma pauperis (IFP) based on its conclusion that an app eal could not be taken in good faith. See Fed. R. App. P. 24(a)(3)(A). Mr. Folsom has renewed his IFP application on appeal, but he has not presented a reasoned, non-fri volous argument. Accordingly, we deny his application to proceed IFP on appeal , find his appeal frivolous, and assess a “strike” for purposes of 28 U. S.C. § 1915(g). Mr. Folsom must pay in full both his district court filing fee and his appellate filing and docketi ng fee to the Clerk of the District Court for the West ern District of Oklahoma. IV. Conclusion We affirm the distri ct court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge