UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ HAZHAR A. SAYED, Plaintiff - Appellant,

v. ROBERTA BROMAN; YVETTE BROWN, F.C.F., Law Library, C/O, Individual Capacity; SGT PATRICK, Mail Room C/O F.C.F., individual capacity; SGT TAFOYA, Mail Room C/O F.C.F., individual capacity, Defendants - Appellees. No. 15-1157 (D.C. No. 1:13-CV -02961-CMA-MJW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Hazhar A. Sayed, a Colorado prisone r proceeding pro se, appeals from the district court’s Fed. R. Ci v. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### January 5, 2016
Elisabeth A. Shumaker Clerk of Court2 Background Sayed’s original complaint had three claims, but he was only permitted to proceed with an Eighth Amendment claim ag ainst defendant Roberta Broman. Sayed filed an amended complaint alleging Broman had denied a May 2012 request to be “seen for on going dental issues and to ha ve my teeth cleaned again,” and he “still suffer[ed] from tooth problems wh ich have caused me to suffer a great deal.” R. at 112. Broman moved to dismiss under Rule 12(b)(6). In response, Sayed submitted an affidavit adding a fe w more details. The magistrate judge considered the amended complaint to be deficient because its “vague generalitie s” did not adequately allege the objective component of an Eighth Amendment claim fo r denial of medical care. R. at 190. He further considered the affidavit, but determined it did not “pr ovide enough facts to nudge [Sayed’s] claim across the line from conceiva ble to plausible.” Id. at 191. Thus, he recommended dismissal of the complaint. Because he t hought Sayed might be able to muster sufficient fact s to support a plausible cl aim, however, he also recommended Sayed be given the opportunity to file a s econd amended complaint. Sayed filed timely objections . The district judge c onducted a de novo review and adopted the recommendation, dismissing the complaint but allowing Sayed to file a second amended complaint. Sayed’s second amended complaint consis ted of a heading and four sentences substantially duplicating the affidavit he ha d previously filed. Broman again moved to dismiss under Rule 12(b)(6 ). Upon review the magi strate concluded Sayed had3 failed to supply sufficient additional fact s to support a plausi ble Eighth Amendment claim and recommended dismi ssal of the complaint. Th is time, he recommended dismissal with prejudice because Sayed’s past attempts to amend had proven futile. Sayed filed timely objections . The district judge c onducted a de novo review and adopted the recommendation, dismissing Sa yed’s claims with prejudice. Sayed timely filed a motion to alter or amend the judgment claiming to have sufficiently stated a cl aim, and in the alternative, br iefly requesting leave to file a third amended complaint. The dist rict judge denied the motion. Discussion Sayed argues his complaint was sufficient, but if it was not, he should have been allowed another opportunity to am end before dismissing the action with prejudice. We review onl y the order dismissing the second amended complaint. 1 We review a Rule 12(b)(6) dismissal de novo. Gee v. Pacheco , 627 F.3d 1178, 1183 (10th Cir. 2010). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of th e claim showing that the pleader is entitled to relief.’” Erickson v. Pardus , 551 U.S. 89, 93 (2007) (per curi am). And a pro se litigant is entitled to a liberal constr uction of his pleadings. See id. at 94. Nevertheless, under Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), and Ashcroft v. Iqbal , 556 U.S. 662 (2009), federal pleadi ng “‘demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.’” Gee , 627 F.3d at 1184 (quoting Iqbal , 556 U.S.

1 Sayed’s opening brief focuses on the merits of the dism issal with prejudice and does not adequately raise any issues ar ising from the denial of the post-judgment motion.4 at 678). A complaint is insu fficient “if it tenders naked assertions devoid of further factual enhancement.” Iqbal , 556 U.S. at 678 (brackets and internal quotation marks omitted). To survive a motion to dismiss, a comp laint must contain sufficient factual matter, accepted as true, to state a clai m to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to dr aw the reasonable inference that the defendant is liable for the misconduct alleged. Id. (citation and internal quot ation marks omitted).

“ Iqbal establishes the importance of contex t to a plausibility determination.”
Gee , 627 F.3d at 1185. An Eighth Amendment medical-care claim has an objective prong—the deprivation was sufficiently serious—and a subjective prong—the official was deliberately indifferent. See Estelle v. Gamble , 429 U.S. 97, 106 (1976) (“In order to state a cogni zable claim, a prisoner must allege acts or omissions sufficiently harmful to eviden ce deliberate indifference to se rious medical needs.”). The district judge quite properly concl uded the second amended complaint to have failed to include su fficient facts to establish a plausible Eighth Amendment claim. The allegations are conclusory, nake d statements of the t ype held insufficient
in Iqbal , 556 U.S. at 678. The a llegations regarding the need for, and the denial of, treatment do not provide suffi cient information to permit one to conclude the deprivation may have been sufficiently serious, and the allegations regarding Broman’s knowledge are clearly insufficien t information to meet the deliberately indifferent requirement for Ei ghth Amendment claims.5 We see no error in dismissing the ac tion with prejudice without allowing Sayed another try at adequate pleading. Of course, an action ought not be dismissed with prejudice unless “it is obvious that th e plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Gee , 627 F.3d at 1195 (internal quot ation marks omitted). Bu t Sayed was afforded an opportunity to amend, which proved futile because he did not add any new facts. Moreover, the magist rate explained how the affidavit was insufficient, see id. at 1186 (“[A] careful judge will explain the pleading’ s deficiencies so that a prisoner with a meritorious claim can then submit an adequate co mplaint.”), but Sayed simply re-submitted substantially th e same allegations. In a ddition, the post-judgment request to amend was cursor y, failing to give the dist rict judge r eason enough to justify another opportunity to amend. We also note Sayed’s failure to submit a formal motion to amend or a proposed th ird amended complaint, which would have aided the district court greatly in determ ining whether he could state a plausible claim. See D.C.COLO.LCivR 15.1(b) (requiring a party who files an opposed motion for leave to amend a pleading to attach a co py of the proposed amended pleading).6 Conclusion Sayed’s motion to proceed without prepayme nt of costs and fe es is granted. But only prepayment of fees is excused, not the fees themselv es. Sayed remains liable for the full amount of all appellate filing and docketing fees ($550) and he must continue making payments to the clerk of the distri ct court until all fees have been paid in full. The judgment of the district court is affirmed.

Entered for the Court

Terrence L. O’Brien Circuit Judge