UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JEFFREY ALLEN HOLDEN, Plaintiff - Appellant,

v. GEO GROUP PRIVATE PRISON CONTRACTORS; H ECTOR RIOS, Defendants - Appellees. No. 18-6156 (D.C. No. 5:18- CV-00479-F) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MORITZ , and EID , Circuit Judges.

________________ _________________ Jeffrey Allen Holden, an Oklah oma prisoner proceeding pro se, a ppeals from the district court’s dismissal of his claims under 42 U.S.C. § 1983. Exercising jurisdiction under 28 U.S.C. § 129 1, we affirm the dismissal of Holden’s claims, but we remand for the district court to clarify in its judgment tha t its dismissal of any state-law claims Holden intended to assert was without prejudic e.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2019
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Holden has been incarcerated in the Oklahoma prison system for approximately thirteen years, m ost recently at Lawton Correctio nal Facility (LCF). LCF is operated by an entity cal led GEO Group under a contract with the state of Oklahoma. Hector Rios is LCF’s Warden. Holden is a drug addict. In Ma y 2018, he sued GEO Group and Ri os under § 1983, alleging that LCF refused to provide him drug treatment in violation of his rights under the Eighth Amendmen t and the Oklahoma constitution . Holden’s complaint also asserte d that LCF was required, by its contract with the state, to provide drug treatment and mental health services. On initial screening under 28 U.S. C. § 1915A, the magistrate ju dge identified several deficiencies in Holden’s complaint and provided him an opportunity to file an amended complaint. Holden did not do so, instead filing an “Am endment to Claim and Brief in Support” in which h e attempted to c larify his clai ms. Considering both the original complaint and the “A mendment to Claim,” the magist rate judge recommended that the district c ourt dismiss the federal claims for failure to state a claim upon which relief may be g ranted and, to the extent Holde n had intended to assert state-law claims, decline to exercise supplemental juris diction over them. Over Holden’s objections, the dis trict court adopted the magist rate judge’s recommendation, dismi ssed the federal clai ms, and declined to e xercise supplemental jurisdiction over any state-law cl aims that Holden had intended to assert.3 DISCUSSION We review de novo a § 1915A dism issal for failure to state a c laim. Young v.
Davis , 554 F.3d 1254, 1256 (10th Cir. 2009). Because Holden proceed s pro se, we construe his filings liberally , but we do not act as his advoca te. Requena v. Roberts , 893 F.3d 1195, 1205 (10th Cir. 2018), cert. denied , 139 S. Ct. 800 (2019). “[A] complaint must contain su fficient factual matter, accepte d as true, to state a claim to relief that i s plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “[T]he pleading sta ndard Rule 8 announces does not require detai led factual allegations, but it demands more than an unadorned, the-defendant-unlawfu lly-harmed-me accusation.” Id. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (citation, brackets, and internal quotation marks omitted). In addition to the tex t of Holden’s complaint and hi s “Amendment to Claim,” we consider his exhibits i n determining whether he stat ed a claim. See Requena , 893 F.3d at 1205. The Eighth Amendment prohibits d eliberate indifference to an i nmate’s serious medical needs. Estelle v. Gamble , 429 U.S. 97, 104 (1976). Deliberate indifference to serious medical needs may b e “manifested . . . by prison gua rds . . . intentionally denying or delaying access to med ical care or intentionally int erfering with . . . treatment once prescribed.” Id. at 104-05 (footnote omitte d). As Holden urges,4 medical care includes psychol ogical and psychiatric care. Riddle v. Mondragon , 83 F.3d 1197, 1203 (10th Cir. 1996). Deliberate indifference has both an objective and a subjective component. Requena , 893 F.3d at 1215. “First, [the inmate] must produce objectiv e evidence that the deprivation at issue was in fact sufficiently serious.” Id. (internal quotation marks omitted). “Second, under the subjective component, [the inmate] must allege the prison official acted with a sufficien tly culpable state of mind, i.e. that the official knew of and disregarded an excessi ve risk to inmate health or s afety.” Id. (brackets and internal quotati on marks omitted). Holden states that LCF does not offer drug treatment. Further, from his pleadings and their attachments , it appears that no facility in the Oklahoma Department of Corrections (ODOC) offers drug treatment to any p risoner until they are within 2,000 days of release. Holden is approximately 5,50 0 days from release, so he is not yet eligible for a ny drug treatment program in ODO C. The magistrate judge assumed, wit hout deciding, that the denial of drug treatment may trigger constitu tional protection. But because O DOC’s drug treatment policy does make treatment availa ble at some point, he recommen ded that Holden’s Eighth Amendment claim be consid ered as challenging a delay in treatment, rather than an outright denial of treat ment. The district court adopt ed this recommendation, and we agree. Although Holden e mphatically maintains that LCF does not offer drug treatment, the allegations indi cate that Holden is precluded fr om drug treatment not simply because he is at LCF, but because he is not currently el igible for drug5 treatment at any ODOC facility. In light of ODOC’s policy allo wing drug treatment at some point in the future, Hol den’s claim is more properly an alyzed as a delay of treatment rather than a denial of treatment. “Where a prisoner claims that ha rm was caused by a delay in me dical treatment, he must show that th e delay resulted in substantial harm in order to satisfy the objective prong of the del iberate indiff erence test.” Al-Turki v. Robinson , 762 F.3d 1188, 1193 ( 10th Cir. 2014) (internal quotation marks omitted). “We have held that the substantial harm r equirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Id. (internal quotation marks omitted); see also Mata v. Saiz , 427 F.3d 745, 755 (10th Cir. 200 5) (stating that an inmate established objective harm by de monstrating unnecessary pain an d a worsening in condition). We have also stated, however, that “not every twin ge of pain suffered as the result of delay in medi cal care is actionable.” Sealock v. Colorado , 218 F.3d 1205, 1210 (10th Cir. 2000). The magistrate judge noted that “[Holden] alleges only that the delay in substance abuse treatment has resulted in mental anguish, stres s, anxiety, hopelessness, depression, and ‘c ontinual highs and lows of hope for relief to never come to fruition.’” R. at 45 (quoting id. at 6). Accordingly , he concluded that Holden “has not alleged facts from which to infer that Defendan ts’ inaction in delaying his receipt of substan ce abuse treatment has resulted in substantial harm.” Id. The district court adopted thi s analysis. On appeal, Holden again generally6 identifies the types of harms the magistrate judge noted. 1 We agree with the district court that these allegations are i nsufficient to establish the substantial harm requirement. See Riddle , 83 F.3d at 1203-04 (stating, i n holding that plaintiffs who sought specialized treatment forsex addiction failed to state an Eighth Amendment claim, that “[v]ague allegati ons of eroded self-esteem, apathy, fear and feelings of differentness, keeping a plaintif f in the ‘addictive cycle,’ do not amount to the basis for a constitutional claim”). Contrary to Holden’s allegations on appeal, the district court gave him the benefit of liberal construction of his pleadings, considering b oth the allegations of the “Amendment to Claim” as well as the allegations in the original complaint. Moreover, regarding Holden’s asse rtion of failure to address hi s allegations of breach of contract, the district court declined to exercise supplement al jurisdiction over Holden’s state-law claims, leavi ng him free to pursue a breach of contract claim in state court if he chooses to do so. 2 We note, however, that the dist rict court did not specify wheth er its dismissal was with prejudice or without pre judice. Under Fed. R. Civ. P. 41(b), that means the dismissal was with prejudice. See Nasious v. Two Unknown B.I.C.E. Agents ,

1 To the extent Holden’s opening brief may identify any additio nal harms, they are asserted only concluso rily, without explanation or ela boration. 2 On appeal, Holden suggests that he is a third-party beneficiar y who can pursue a federal claim of breach of contract under 42 U.S.C. § 1981. But Holden did not mention § 1981 in the distric t court. And to the extent th at Holden alleges that the district court should have i dentified a possible § 1981 cla im through applying liberal construction, we disagr ee. Section 1981 addresses race discrimination, and Holden has failed to allege any facts regarding race discrimina tion.7 492 F.3d 1158, 1162 ( 10th Cir. 2007) (“Because the district cou rt in this case did not specify the nature of its dismi ssal order, we must rely on back ground principles under Rule 41(b), and they firmly instru ct that ‘[u]nless the court i n its order for dismissal otherwise specifies,’ a district court’s dismissal will be trea ted as adjudicating the merits of the action—and thus a dismissal with prejudice.”). Given that the district court declined to exercise suppl emental jurisdiction over any s tate-law claims, however, the dismissal of those claims should have been without prejudice. See Ball
v. Renner , 54 F.3d 664, 669 (10th Cir. 1995). CONCLUSION The district court’s judgment is affirmed, but we remand for th e district court to clarify in its judgment that i ts dismissal of any state-law claims is without prejudice.

Entered for the Court
Nancy L. Moritz Circuit Judge