* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 27 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT J. JENKINS,

Plaintiff-Appellant, No. 99-1335

v. District of ColoradoDENVER COUNTY JAIL, P.O. Box1108, Denver, Colorado, 80239; Mr. JOHN SIMONET, Director of Corrections; BONNIE C. WYATT; THE OFFICE OF THE ATTORNEY GENERAL; and MAYOR WELLINGTON WEBB,

Defendants-Appellees. (D.C. No. 99-Z-908)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.
Robert J. Jenkins is a prisoner in the Crowley County Correctional Facility in Olney Springs, Colorado. Mr. Jenkins filed a pr o se civil rights complaint, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a )(3), alleging that the defendants violated his Eighth Amendment right agai nst cruel and unusual2

punishment. Pursuant to 28 U.S.C. § 1915, Mr. Jenk ins was granted to leave to proceed in forma pauperis . The district court found that Mr. Jenkins did no t sufficiently allege an Eighth Amendment violation a nd failed to allege any personal participation of defendants John Simonet, Bonnie C. Wyatt, or Mayor Wellington Webb. As a result, the district court d ismissed Mr. Jenkins complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e )(2)(B). Mr. Jenkins sought leave from the district court to proceed in forma pauperis on appeal, but the district court denied his reque st. Mr. Jenkins has renewed his motion with this court. In order to su cceed on his motion, Mr. Jenkins must show both an inability to pay the fili ng fee and the existence of a nonfrivolous issue that states a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2); Coppedge v. United States , 369 U.S. 438, 445 (1962); Ragan
v. Cox , 305 F.2d 58, 60 (10th Cir. 1962). We have recently articulated the standards governin g Eighth Amendment claims by prisoners:

The Eighth Amendment requires prison officials to “provide humane conditions of confinement,” which includes taking “reasonable measures to guarantee t he safety of inmates.” See Farmer v. Brennan , 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994) (inte rnal quotation marks and citation omitted). An inmate c laiming that officials failed to prevent harm first “must s how that he is incarcerated under conditions posing a substa ntial risk of serious harm.” Id. at 834, 114 S.Ct. 1970. Then [he] must demonstrate that the officials had a3 “‘sufficiently culpable state of mind,’” id. (quoting Wilson v. Seiter , 501 U.S. 294, 297, 111 S. Ct. 2321, 115 L. Ed.2d 271 (1993)) – that is, their acts or omission arose from “deliberate indifference to inmate health or safety.” Id. (internal quotation marks and citation omitted). Declining to adopt an objective definition of deliberate indi fference, the Farmer Court held that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety.” Id. at 837, 114 S. Ct. 1970. “ ‘[D]eliberate indifference’ is a stringent standard of fault.” Board of County Comm’rs of Bryan County v. Brown , 520 U.S. 397, 410, 117 S. Ct. 1382, 137 L. Ed.2d 626 (1 997). “A showing of simple or even heightened negligence will not suffice.” Id. at 407, 117 S. Ct. 1382. Giron v. Corrections Corp. of Am. , 191 F.3d 1281, 1285-86 (10th Cir. 1999). “[A]n official’s failure to alleviate a significantrisk that he should have perceived but did not, while no cause for commendat ion,” will not satisfy the deliberate indifference standard of the Eighth Amendment. Farmer , 511 U.S. at
838. Construing Mr. Jenkins’ pro se complaint liberally, see Perkins v. Kansas Dept. of Corrections , 165 F.3d 803, 806 (10th Cir. 1999), he alleges th e following: he was assaulted by a fellow inmate dur ing a basketball game and, as a result, suffered serious injuries to his leg; the security camera on the basketball court was broken at the time of the assault, thereb y facilitating the attack and; in an unrelated incident, a Denver County Jail Sheriff Deputy “assaulted” an inmate.
See Prisoner’s Civil Rights Complaint, May 10, 1999, at 3. Mr. Jenkins also4

states in his complaint that he is “under the under standing the law enforcement officers will have inmates with a violent criminal history to due there [sic] dirty work for them in return for a favor.” Id. He asserts no additional facts to substantiate this broad allegation. Accepting the contentions in his complaint as true, we agree with the district court that Mr. Jenkins has failed to state a claim for violation of his Eighth Amendment rights. Specifically, the facts s et forth in the complaint fail to allege that Mr. Jenkins was incarcerated under cond itions that imposed a substantial risk of serious harm or that the prisonofficials knew of and disregarded an excessive risk to inmate health and safety. Compare Snider v. Dylag , 188 F.3d 51, 54 (2d Cir. 1999) (reversing dismiss al of § 1983 action alleging Eighth Amendment violation where plaintiff alleged that prison official declared “open season” on him, affirmatively announ cing to other inmates that he would not impede their abuse of plaintiff); Lopez v. LeMaster , 172 F.3d 756 (10th Cir. 1999) (reversing grant of summary judgme nt to defendants on Eighth Amendment claim where plaintiff prisoner alleged th at when he was attacked by cellmates there was no TV monitor, no guard in sigh t, and no way to call for help; there had been at least one prior attack at the jai l; inspection reports noted deficiencies in staff and back up, training, and supervision of inmates; and the5

defendant official had knowledge of these deficienc ies and therefore was on notice of the danger they presented). The “deliberate indifference” test also requires th at in order for a prison official to be liable under § 1983 the official mus t have been personally and directly responsible for the occurrence of the alle ged Eighth Amendment violation. See Grimsley v. MacKay , 93 F.3d 676, 679 (10th Cir.1996); Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir.1996). We conclude, for substantially the same reasons as the district court, that Mr. Je nkins failed to allege any personal participation of Mr. Simonet, Ms. Wyatt, o r Mayor Webb. Because Mr. Jenkins has failed to state a claim on which relief may be granted, we deny his motion for leave to proceed on appeal without prepayment of costs or fees. For purposes of counting “prior occ asions” under 28 U.S.C. § 1915(g), we remind Mr. Jenkins that a prisoner may not “bring a civil action or appeal a judgment in a civil action or proceeding u nder this section [without full advance payment of the filing fee] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any fa cility, brought an action or appeal in a court of the United States that was dis missed on the grounds that it is frivolous, malicious, or fails to state a claim upo n which relief may be granted, unless the prisoner is under imminent danger of ser ious physical injury.” 286

U.S.C. § 1915(g); see Jennings v. Natrona Cty. Detention Center , 175 F.3d 775, 778-79 (10th Cir. 1999). This appeal is, therefore , DISMISSED. Entered for the Court,

Robert H. Henry Circuit Judge