UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOSEPH Z. WOMBLE, Plaintiff - Appellant,

v. JERRY CHRISMAN, Warden; TOMMY SHARP, Deputy Warden, Mack Alford Correctional Center, Defendants - Appellees. No. 17-7056 (D.C. No. 6:14-CV -00385-JHP-SPS) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , McKAY , and KELLY , Circuit Judges.

________________ _________________ Plaintiff-Appellant Joseph Z. Wom ble appeals from the district court’s denial of his motion for default judgmen t and dismissal of his Eighth Amendment claims arising from his confinement at the Mack Alford Correctional Ce nter (MACC) in Stringtown, Oklahoma. Mr. Womble sued several defendants in bo th their individual and official capacities pursuant to 42 U.S.C. § 1983; only Jerr y Chrisman (the warden at MACC during the allege d violation) and Tommy Sharp (t he deputy warden) remain. Womble v. Chris man, No. CIV 14–385–JHP–SPS, 20 17 WL

* This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 23, 2019
Elisabeth A. Shumaker Clerk of Court2 3392352, at *1–3, (E.D. Okla. A ug. 7, 2017). Mr. Womble raised three separate Eighth Amendment claims. The f irst was for inadequate nutritio n, the second was for failure to screen inmates for m ental illness, and the third was for inadequately maintaining bathroom and shower facilities and resulting unhygi enic conditions. Supp. R. 17, 20–23. The district court dismissed both the offi cial capacity and individual capacity claims agains t these defendants for failure to state a claim. Womble, 2017 WL 3392352, at *2–3 . Mr. Womble filed a timely, p ro se appeal. 1 Mr. Womble’s pro se brief argued that the district court should not have denied his motion for default judgment, tha t the district court should not have dismissed his claims for failure to state a cl aim, and that he had stated a F ourteenth Amendment violation claim. 2 Pro bono counsel was later a ppointed to argue “whether Mr. Womble’s allegations of food rati oning and the weight loss it c aused state a prima facie case for an Eighth Amendment violation.” 3 Order, Womble v. Chrisman, No. 17-7056 (10th Cir. Sept. 26, 201 8) (ECF No. 10592637). Exercis ing jurisdiction

1 Although the district court rece ived his notice of appeal aft er the deadlin e for such notice had expired, Mr. Womble properly relies on the mailbox r ule pursuant to Fed. R. App. P. 4(c). In reaching th is conclusion, we will grant Mr . Womble’s request to supplement his October 17, 2017 , response with a Rule 4(c)(1)(A )(i) declaration.

2 We do not reach the Fourteenth A mendment claim because Mr. Wo mble did not raise it below. See Supp. R. 17.

3 We nevertheless reach all the c laims that Mr. Womble raised b elow because his opening brief preserved them. This court as ked appointed couns el to argue the food deprivation claim only, and appo inted counsel’s compliance with that request should not act as a forfeiture or waiver of Mr. Womble’s other appella te claims. Concluding otherwise would deny Mr. Wombl e his right to appeal through no fault of his own.3 under 28 U.S.C. § 1291, we affirm in part and reverse in part b ecause the district court should not have dismissed Mr. Womble’s food deprivation a nd failure to maintain sanitary fac ilities claims, but it properly dismissed his inadequate inmate screening claim.

Background Mr. Womble filed his first compla int in September 2014, see 1 R . 7, and his first amended complaint in N ovember 2015. See Supp. R. 16. Th e first amended complaint alleged the following facts related to the food depri vation claim. 4 Beginning in May 2014, Messrs. Chr isman and Sharp ordered that food be rationed in response to a growing populati on of inmates. Id. at 17, 20–21. Mr. Womble was served very small portions, and “spoiled meat, fruit and milk . . . on a regular basis” resulting in stomach pain, digestive damage, vomiting, and weig ht loss. Id. at 20–21. He lost 21 pounds between May 2 014 and Septembe r 2015. Id. at 21. At some point, Mr. Womble informed Mr. Chrisma n, Mr. Sharp, and Donna Vitoski (the food service manager at MACC) of thes e problems but was told that th ey did not have the budget to fix the problems. Id. According to Mr. Womble, Mr. Sharp said in June 2014, “[W]e will do nothing about the overcrowding, and you sho uld be grateful you even get food.” Id.

4 We introduce the facts relevant to the inadequate inmate scre ening and facility maintenance claims w hen we analyze them.4 Based on the allegations in the fi rst amended complaint, the di strict court dismissed Mr. Womble’ s individual capacity c laims because it co ncluded that Mr. Womble had not alleged facts to e stablish that “[Mr.] Sharp and [Mr.] Chrisman were ‘deliberately indifferent’ to pla intiff’s personal safety.” Wo mble, 2017 WL 3392352, at *3. Next, even though Mr. Wom ble’s claims were not generali zed overcrowding claims, the district court appear ed to frame his complaint as o ne of overcrowding and determined that Mr. Wo mble had failed to allege facts showing t hat Mr. Chrisman and Mr. Sharp were responsible f or the overcrowding. Id. In r eaching this determination, the district cour t did not consider Mr. Womble’s allegation that Mr. Sharp and Mr. Chrisman had orde red food rationing because it de emed the allegation conclusory. Id.

Discussion We review a district court’s di smissal under Rule 12(b)(6) de n ovo and apply the same standards as the distr ict court. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). We therefor e accept all well-pled facts as true and view them in the light most favorable to the plaintiff. Ashcroft v. Iqba l, 556 U.S. 662, 678 (2009). Nevertheless, we need not accept as true the complaint ’s legal conclusions. Id. The plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v . Twombly, 550 U.S. 544, 570 (2007 ). A claim is plausible if the facts alleged support a reasonable inference t hat the defendant is liable. Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2 016).5 Additionally, when a plaintiff appears pro se, the court libera lly construes the complaint. Kay v. Bemis, 500 F. 3d 1214, 1218 (10th Cir. 2007). Thus, “[d]ismissal of a pro se complaint for failur e to state a claim is proper on ly where it is obvious that the plaintiff cannot prevail on the facts he has alleged a nd it would be futile to give him an opportunity to amen d.” Curley v. Perry, 246 F.3d 1 278, 1281 (10th Cir. 2001) (quoting Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 8 06 (10th Cir. 1999)). Applying these standards, we conc lude that the first amended co mplaint’s allegations are sufficient to state a plaus ible food deprivation claim unde r the Eighth Amendment. 5 To establish a prima facie § 198 3 case against a supervisor, su ch as a warden, a plaintiff must allege sufficie nt facts to show that the defen dants participated in the violation. Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016 ). Thus, a prison official cannot be held liable so lely based upon his supervisor y position. Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). But a supervisor ma y be liable where “an affirmative link ex ists between the constitutional deprivat ion and either the supervisor’s personal participat ion, his exercise of control or direction, or his failure to supervise.” Fogarty v. Galle gos, 523 F.3d 1147, 1162 (10th Cir. 2008) (quotation omitted) (quoting Butle r v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993)).

5 Because we resolve this case in Mr. Womble’s favor by looking only to the first amended complaint, we do not reach his argument that the distri ct court abused its discretion in denying his attemp t to supplement his pleading. See Aplt. Br. at 38–43.6 A. Inadequate Nutrition Claim Prisons must provide inmates w ith “nutritionally adequate food that is prepared and served under conditi ons which do not present an im mediate danger to the health and well-being of the inmates who consume it.” Ramo s v. Lamm, 639 F.2d 559, 570–71 (10t h Cir. 1980). “A substantial deprivation of food may be sufficiently serious to state a conditions of confinement claim under the Eighth Amendment.” Trujillo v. William s, 465 F.3d 1210 , 1227 (10th Ci r. 2006) (quoting Thompson v. Gibson, 289 F.3d 12 18, 1222 (10th Ci r. 2002)). To state such a claim, an inmate must allege both an o bjective and subjective element. The objective element requires that the inmat e allege a “sufficiently serious ” deprivation that denied the inmate “the minimal civilized measures of life’s nec essities.” Strope v. Sebelius, 189 F. App’x 763, 766 ( 10th Cir. 2006) (unpublished) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1310 ( 10th Cir. 1998)). Next, the su bjective element requires showing the prison offi cial knew of and disregarded “a n excessive risk to inmate health and safety.” Ba rney, 143 F.3d at 1310 (quoting F armer v. Brennan, 511 U.S. 825, 837 (1994)). Though we express no opi nion on the merits, Mr. Womble has alle ged facts sufficient to satisfy the persona l participation, objective, an d subjective requirements at this stage. Beginning with t he personal participation requi rement, Mr. Womble’s first amended complaint allege d an affirmative link between the substandard portions and unfit food and the defendants. The complaint alleges that Ms. Vitoski was ordered to ration food by Mr. S harp and Mr. Chrisman starting i n May 2014 and that7 Mr. Chrisman ordered Ms. Vitoski to divert funds from food to s ecurity. Supp. R. 21. Moreover, Mr. Womble complain ed to these three, yet they d eclined to take any action. Id. Taken as true, these facts ar e enough to show an affirmative link between the Defendants’ personal partic ipation and the food rationing. See Fogarty, 523 F.3d
at 1162. Whether Mr. Womble pled sufficien t facts that Mr. Chrisman and Mr. Sharp personally participated in Mr. Wom ble receiving food unfit for human consumption is a closer question, but we conc lude that their participation is plausible given the mandated liberal cons truction of the pro se complaint. Mr. Wom ble alleged that he informed Mr. Chrisman, Mr. Sha rp, and Ms. Vitoski that “he was getting sick from the food because of the rationed food portions, the spoiled nat ure of the food and the infestation of cockroaches in th e kitchen.” Supp. R. 21. They responded that they did “not have the budget to fix t hese problems.” Id. At that point, it is plausible that Mr. Chrisman and Mr. Sharp were on notice and declined to exerc ise control over the food service to correct t he alleged problems. Mr. Womble’s first amended compla int also pled en ough facts to satisfy the sufficiently serious deprivati on requirement. Again, Mr. Wombl e alleged that he was continually served inadequate a mounts of food, that he was serv ed spoiled food on a regular basis, and that he became ill and lost 21 pounds betwee n May 2014 and September 2015. Id. at 20–21. A lthough no published Tenth Cir cuit cases address with specificity what constitutes a substantial deprivation of food, other c ircuits have provided a rubric. See, e.g., T alib v. Gilley, 138 F.3d 211, 2 14 n.3 (5th Cir. 1998)8 (court looks at the amount and duration of a deprivation). Acc epting Mr. Womble’s allegations as true and viewing them in the light most favorabl e to him, we conclude that Mr. Womble has alleged a sufficiently serious deprivation to survive a motion to dismiss because the rationing la sted more than 16 months, he lo st 21 pounds, and he suffered from stomach pain, dig estive damage, and vomiting. Th ese allegations are analogous to those in Strope, 1 89 F. App’x at 766 (alleging spo iled food served “routinely” that caused stomach pain on at least one occasion). Defendants argue that Mr. Womble’ s allegations are insufficient to show “any inherent or particular danger to Womble’s health or safety.” A plee. Br. at 13. They note that Mr. Womble’s alleged we ight loss occurred over many m onths and only represents 1.3 pounds lost permonth. Id. at 14. Further, the y note that Mr. Womble provided no indication of how fre quently “nutritionally inadequ ate” meals were served and cite cases holding t hat isolated instances of poor-q uality food cannot support a conditions of confinem ent claim. Id. at 13–14 & n.4. We are not persuaded. Mr. Womble alleged mo re than isolated incidents; ra ther, he alleged a pattern occurring on a regular b asis over many months. As for the argument his weight loss was minor given his starting weight, such a questio n is better left for later stages of litigation. Turning to the subjective element , the district court determine d that “[n]one of the facts alleged by plaintiff es tablishes that Defendants Shar p and Chrisman were ‘deliberately indifferent’ to pla intiff’s personal safety.” Wo mble, 2017 WL 3392352, at *3. We disagree. Mr. Womble alleged facts th at, if true, s how that Mr. Sharp and9 Mr. Chrisman knew “of and disregar d[ed] an excessi ve risk to in mate health and safety.” See Barney, 143 F.3d at 1310 (quoting Farmer, 511 U.S . at 837). Whether the official had the requisite knowledge may be proved by circu mstantial evidence. Farmer, 511 U.S. at 837. Thus, M r. Womble only needs to “alleg e facts supporting an inference that Defendants kne w about and disregarded a subst antial risk of harm to his health or safety” to satis fy the subjective prong. Oxendin e v. Kaplan, 241 F.3d 1272, 1277 (10th Cir. 2001) (q uotation omitted); see id. at 127 8–79. As noted above, Mr. Womble alleged that he inform ed Mr. Chrisman and Mr. Sharp of the serious problems, yet they responded th at they did not have the budget to fix them. Moreover, Mr. Sharp dismissed Mr . Womble’s concerns on a differ ent occasion, allegedly telling Mr. Womble he s hould be grateful to even get food. Supp. R. 21. These allegations, viewed in the light most favorable to Mr. Wo mble, are sufficient to support the inference that Mr. Chrisman and Mr. Sharp knew o f the risks posed by the rationing. See Farmer, 511 U. S. at 842 (“[A] factfinder ma y conclude that a prison official knew of a substa ntial risk from the very fact t hat the risk was obvious.”).
B. Inadequate Screening Claim Mr. Womble also alleged that Mr . Chrisman and Mr. Sharp were re sponsible for screening new arrivals at the MACC but failed to screen inm ates before sending them to Womble’s housing unit. S upp. R. 22. Mr. Womble allege s that he was housed with mentally and physica lly ill inmates as a result and that those inmates exposed him to communicable diseas es, which caused him to exper ience nausea,10 fatigue, and frequent bowel movem ents. Id. at 21–22. The dist rict court properly dismissed this claim because Mr. Womble alleged nothing more th an supervisory liability and has not alleged an affirmative link between Messr s. Chrisman and Sharp and his injuries from the failure to screen.
C. Inadequate Maintenance of S howers and Bathrooms Claim Mr. Womble’s amended complaint alleges his housing unit had too few showers and toilets for the inm ate population. Specifically, h e says there were 11 working showers for 132 inmate s, and Mr. Chrisman and Mr. Sharp refused to order nonfunctioning showers to be fi xed. Id. at 22–23. Mr. Womble claims that he fell and injured his head, and devel oped an ear infection when one o f the showers flooded. Id. at 22. Mr. Womble al so alleges that there was of ten only one functioning bathroom available for 32 inmates in one portion of the dormitory in part because inmates were housed in cel ls once set aside as bathroom s. Id. at 23. According to Mr. Womble, the i nadequate facilities required him to hold bowel movements, exposed him to feces on two occasions, 6 caused him to soil himself, and resulted in damage to his dige stive system. Id. Mr. Womble al leges he raised the issue with Mr. Chrisman and Mr. S harp, but they ignored his com plaint, stating:

6 In his pro se appellate brief, Mr. Womble only challenges the inadequate bathroom facilities, explaining that the t oilets often overflowed exposi ng inmates to water, urine, and fecal material. Aplt . Pro Se Br. at 7, 10; see also Reynolds v. Powell, 370 F.3d 1028, 1031–32 (10t h Cir. 2004) (standi ng water in shower a rea did not pose a substantial risk of serious harm even when plaintiff was on cru tches).11 “[N]othing can be done. This is a permanent situation, you’ll just have to do your time.” Id. The Eighth Amendment requires st ates to provide i nmates reasona bly adequate sanitation and utilities such that an inmate’s men tal and physi cal wellbeing is not threatened. Ramos, 639 F.2d at 56 8. Mr. Womble’s allegations that he had to hold bowel movements and that he was exposed to feces are enough at this stage to show a sufficiently serious threat to hi s physical and mental wellbein g. See DeSpain v. Uphoff, 264 F.3d 965, 974–75 (10t h Cir. 2001). And, as with th e inadequate nutrition claims, Mr. Womble has alleged that he informed both Mr. Chrisman and Mr. Sharp of the issue with the bathroom, yet he alleged that t hey dismissed his request. These allegations, viewe d in the light most favorable to Mr. Womble, are sufficient to support the infere nce that Mr. Chrisman and Mr. S harp knew of but disregarded the risks posed by th e bathrooms. See Farmer, 511 U.S. at 842. Therefore, the district court s hould not have dismissed this cl aim under Rule 12(b)(6).
D. Denial of Def ault Judgment Last, Mr. Womble argues that the district court improperly deni ed his motion for default judgment. The distric t court denied the motion bec ause it concluded that Mr. Chrisman and Mr. Sharp were not served properly. 2 R. 25–2 6. On appeal, Mr. Womble asserts that the two were properly served without citing the record or any authority other than Fed. R. Civ . P. 5 (without explaining how he satisfied Rule 5’s requirements). Aplt. Pro Se Br. at 4. We therefore affirm the district court’s denial12 of Mr. Womble’s motion for defa ult judgment. See Rios v. Zigla r, 398 F.3d 1201, 1206 n.3 (10th Cir. 2005) (“To make a suf ficient argument on ap peal, a party must advance a reasoned argument con cerning each ground of the appea l, and it must support its argument with legal authority.” (citation omitted)) ; Gross v. Burgraff Const. Co., 53 F.3d 1531, 1546 (10th Cir. 1995). AFFIRMED in part, REVERSED in pa rt, and REMANDED. We GRANT Mr. Womble’s request to supplement his October 17, 2017, response w ith a Rule 4(c)(1)(A)(i) declaration.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge