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. Womble appeals from the district court’s denial 

of his motion for default judgment and dismissal of his Eighth Amendment claims 

arising from his confinement at the Mack Alford Correctional Center (MACC) in 

Stringtown, Oklahoma. Mr. Womble sued several defendants in both their individual 

and official capacities pursuant to 42 U.S.C. § 1983; only Jerry Chrisman (the 

warden at MACC during the alleged violation) and Tommy Sharp (the deputy 

warden) remain. Womble v. Chrisman, No. CIV 14–385–JHP–SPS, 2017 WL 

 * This order and judgment is not binding precedent, except under the doctrines 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 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 23, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

3392352, at *1–3, (E.D. Okla. Aug. 7, 2017). Mr. Womble raised three separate 

Eighth Amendment claims. The first was for inadequate nutrition, the second was for 

failure to screen inmates for mental illness, and the third was for inadequately 

maintaining bathroom and shower facilities and resulting unhygienic conditions. 

Supp. R. 17, 20–23. The district court dismissed both the official capacity and 

individual capacity claims against these defendants for failure to state a claim. 

Womble, 2017 WL 3392352, at *2–3. Mr. Womble filed a timely, pro se appeal.1

 

Mr. Womble’s pro se brief argued that the district court should not have denied his 

motion for default judgment, that the district court should not have dismissed his 

claims for failure to state a claim, and that he had stated a Fourteenth Amendment 

violation claim.2

 Pro bono counsel was later appointed to argue “whether Mr. 

Womble’s allegations of food rationing and the weight loss it caused state a prima 

facie case for an Eighth Amendment violation.”3

 Order, Womble v. Chrisman, No. 

17-7056 (10th Cir. Sept. 26, 2018) (ECF No. 10592637). Exercising jurisdiction 

 

1

 Although the district court received his notice of appeal after the deadline for such 

notice had expired, Mr. Womble properly relies on the mailbox rule pursuant to Fed. 

R. App. P. 4(c). In reaching this 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 Amendment claim because Mr. Womble did not 

raise it below. See Supp. R. 17. 

3

 We nevertheless reach all the claims that Mr. Womble raised below because his 

opening brief preserved them. This court asked appointed counsel to argue the food 

deprivation claim only, and appointed counsel’s compliance with that request should 

not act as a forfeiture or waiver of Mr. Womble’s other appellate claims. Concluding 

otherwise would deny Mr. Womble 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 because the district 

court should not have dismissed Mr. Womble’s food deprivation and failure to 

maintain sanitary facilities claims, but it properly dismissed his inadequate inmate 

screening claim. 

Background 

Mr. Womble filed his first complaint in September 2014, see 1 R. 7, and his 

first amended complaint in November 2015. See Supp. R. 16. The first amended 

complaint alleged the following facts related to the food deprivation claim.4 

Beginning in May 2014, Messrs. Chrisman and Sharp ordered that food be rationed in 

response to a growing population 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 weight loss. Id. at 20–21. 

He lost 21 pounds between May 2014 and September 2015. Id. at 21. At some point, 

Mr. Womble informed Mr. Chrisman, Mr. Sharp, and Donna Vitoski (the food 

service manager at MACC) of these problems but was told that they 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 should be grateful you 

even get food.” Id. 

 

4

 We introduce the facts relevant to the inadequate inmate screening and facility 

maintenance claims when we analyze them. 
4 

Based on the allegations in the first amended complaint, the district court 

dismissed Mr. Womble’s individual capacity claims because it concluded that Mr. 

Womble had not alleged facts to establish that “[Mr.] Sharp and [Mr.] Chrisman were 

‘deliberately indifferent’ to plaintiff’s personal safety.” Womble, 2017 WL 3392352, 

at *3. Next, even though Mr. Womble’s claims were not generalized overcrowding 

claims, the district court appeared to frame his complaint as one of overcrowding and 

determined that Mr. Womble had failed to allege facts showing that Mr. Chrisman 

and Mr. Sharp were responsible for the overcrowding. Id. In reaching this 

determination, the district court did not consider Mr. Womble’s allegation that Mr. 

Sharp and Mr. Chrisman had ordered food rationing because it deemed the allegation 

conclusory. Id. 

Discussion 

We review a district court’s dismissal under Rule 12(b)(6) de novo and apply 

the same standards as the district court. Ledbetter v. City of Topeka, 318 F.3d 1183, 

1187 (10th Cir. 2003). We therefore accept all well-pled facts as true and view them 

in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 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 that the defendant is 

liable. Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). 
5 

Additionally, when a plaintiff appears pro se, the court liberally construes the 

complaint. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). Thus, “[d]ismissal 

of a pro se complaint for failure to state a claim is proper only where it is obvious 

that the plaintiff cannot prevail on the facts he has alleged and it would be futile to 

give him an opportunity to amend.” Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 

2001) (quoting Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 806 (10th Cir. 1999)). 

Applying these standards, we conclude that the first amended complaint’s allegations 

are sufficient to state a plausible food deprivation claim under the Eighth 

Amendment.5

To establish a prima facie § 1983 case against a supervisor, such as a warden, 

a plaintiff must allege sufficient facts to show that the defendants participated in the 

violation. Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016). Thus, a prison 

official cannot be held liable solely based upon his supervisory position. Grimsley v. 

MacKay, 93 F.3d 676, 679 (10th Cir. 1996). But a supervisor may be liable where 

“an affirmative link exists between the constitutional deprivation and either the 

supervisor’s personal participation, his exercise of control or direction, or his failure 

to supervise.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (quotation 

omitted) (quoting Butler 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 district court abused its 

discretion in denying his attempt to supplement his pleading. See Aplt. Br. at 38–43. 
6 

A. Inadequate Nutrition Claim 

Prisons must provide inmates with “nutritionally adequate food that is 

prepared and served under conditions which do not present an immediate danger to 

the health and well-being of the inmates who consume it.” Ramos v. Lamm, 639 

F.2d 559, 570–71 (10th Cir. 1980). “A substantial deprivation of food may be 

sufficiently serious to state a conditions of confinement claim under the Eighth 

Amendment.” Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006) (quoting 

Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002)). To state such a claim, 

an inmate must allege both an objective and subjective element. The objective 

element requires that the inmate allege a “sufficiently serious” deprivation that 

denied the inmate “the minimal civilized measures of life’s necessities.” 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 subjective element 

requires showing the prison official knew of and disregarded “an excessive risk to 

inmate health and safety.” Barney, 143 F.3d at 1310 (quoting Farmer v. Brennan, 

511 U.S. 825, 837 (1994)). 

Though we express no opinion on the merits, Mr. Womble has alleged facts 

sufficient to satisfy the personal participation, objective, and subjective requirements 

at this stage. Beginning with the personal participation requirement, Mr. Womble’s 

first amended complaint alleged 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. Sharp and Mr. Chrisman starting in May 2014 and that 
7 

Mr. Chrisman ordered Ms. Vitoski to divert funds from food to security. Supp. R. 

21. Moreover, Mr. Womble complained to these three, yet they declined to take any 

action. Id. Taken as true, these facts are enough to show an affirmative link between 

the Defendants’ personal participation and the food rationing. See Fogarty, 523 F.3d 

at 1162. 

Whether Mr. Womble pled sufficient facts that Mr. Chrisman and Mr. Sharp 

personally participated in Mr. Womble receiving food unfit for human consumption 

is a closer question, but we conclude that their participation is plausible given the 

mandated liberal construction of the pro se complaint. Mr. Womble alleged that he 

informed Mr. Chrisman, Mr. Sharp, and Ms. Vitoski that “he was getting sick from 

the food because of the rationed food portions, the spoiled nature of the food and the 

infestation of cockroaches in the kitchen.” Supp. R. 21. They responded that they 

did “not have the budget to fix these problems.” Id. At that point, it is plausible that 

Mr. Chrisman and Mr. Sharp were on notice and declined to exercise control over the 

food service to correct the alleged problems. 

Mr. Womble’s first amended complaint also pled enough facts to satisfy the 

sufficiently serious deprivation requirement. Again, Mr. Womble alleged that he was 

continually served inadequate amounts of food, that he was served spoiled food on a 

regular basis, and that he became ill and lost 21 pounds between May 2014 and 

September 2015. Id. at 20–21. Although no published Tenth Circuit cases address 

with specificity what constitutes a substantial deprivation of food, other circuits have 

provided a rubric. See, e.g., Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) 
8 

(court looks at the amount and duration of a deprivation). Accepting Mr. Womble’s 

allegations as true and viewing them in the light most favorable to him, we conclude 

that Mr. Womble has alleged a sufficiently serious deprivation to survive a motion to 

dismiss because the rationing lasted more than 16 months, he lost 21 pounds, and he 

suffered from stomach pain, digestive damage, and vomiting. These allegations are 

analogous to those in Strope, 189 F. App’x at 766 (alleging spoiled 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.” Aplee. Br. at 13. They 

note that Mr. Womble’s alleged weight loss occurred over many months and only 

represents 1.3 pounds lost per month. Id. at 14. Further, they note that Mr. Womble 

provided no indication of how frequently “nutritionally inadequate” meals were 

served and cite cases holding that isolated instances of poor-quality food cannot 

support a conditions of confinement claim. Id. at 13–14 & n.4. We are not 

persuaded. Mr. Womble alleged more than isolated incidents; rather, he alleged a 

pattern occurring on a regular basis over many months. As for the argument his 

weight loss was minor given his starting weight, such a question is better left for later 

stages of litigation. 

Turning to the subjective element, the district court determined that “[n]one of 

the facts alleged by plaintiff establishes that Defendants Sharp and Chrisman were 

‘deliberately indifferent’ to plaintiff’s personal safety.” Womble, 2017 WL 3392352, 

at *3. We disagree. Mr. Womble alleged facts that, if true, show that Mr. Sharp and 
9 

Mr. Chrisman knew “of and disregard[ed] an excessive risk to inmate 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 circumstantial evidence. 

Farmer, 511 U.S. at 837. Thus, Mr. Womble only needs to “allege facts supporting 

an inference that Defendants knew about and disregarded a substantial risk of harm to 

his health or safety” to satisfy the subjective prong. Oxendine v. Kaplan, 241 F.3d 

1272, 1277 (10th Cir. 2001) (quotation omitted); see id. at 1278–79. As noted above, 

Mr. Womble alleged that he informed Mr. Chrisman and Mr. Sharp of the serious 

problems, yet they responded that they did not have the budget to fix them. 

Moreover, Mr. Sharp dismissed Mr. Womble’s concerns on a different occasion, 

allegedly telling Mr. Womble he should be grateful to even get food. Supp. R. 21. 

These allegations, viewed in the light most favorable to Mr. Womble, are sufficient 

to support the inference that Mr. Chrisman and Mr. Sharp knew of the risks posed by 

the rationing. See Farmer, 511 U.S. at 842 (“[A] factfinder may conclude that a 

prison official knew of a substantial risk from the very fact that the risk was 

obvious.”). 

B. Inadequate Screening Claim 

Mr. Womble also alleged that Mr. Chrisman and Mr. Sharp were responsible 

for screening new arrivals at the MACC but failed to screen inmates before sending 

them to Womble’s housing unit. Supp. R. 22. Mr. Womble alleges that he was 

housed with mentally and physically ill inmates as a result and that those inmates 

exposed him to communicable diseases, which caused him to experience nausea, 
10 

fatigue, and frequent bowel movements. Id. at 21–22. The district court properly 

dismissed this claim because Mr. Womble alleged nothing more than supervisory 

liability and has not alleged an affirmative link between Messrs. Chrisman and Sharp 

and his injuries from the failure to screen. 

C. Inadequate Maintenance of Showers and Bathrooms Claim 

Mr. Womble’s amended complaint alleges his housing unit had too few 

showers and toilets for the inmate population. Specifically, he says there were 11 

working showers for 132 inmates, and Mr. Chrisman and Mr. Sharp refused to order 

nonfunctioning showers to be fixed. Id. at 22–23. Mr. Womble claims that he fell 

and injured his head, and developed an ear infection when one of the showers 

flooded. Id. at 22. Mr. Womble also alleges that there was often only one 

functioning bathroom available for 32 inmates in one portion of the dormitory in part 

because inmates were housed in cells once set aside as bathrooms. Id. at 23. 

According to Mr. Womble, the inadequate 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 digestive system. Id. Mr. Womble alleges he raised the 

issue with Mr. Chrisman and Mr. Sharp, but they ignored his complaint, stating: 

 

6

 In his pro se appellate brief, Mr. Womble only challenges the inadequate bathroom 

facilities, explaining that the toilets often overflowed exposing 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 (10th Cir. 2004) (standing water in shower area did not pose a 

substantial risk of serious harm even when plaintiff was on crutches). 
11 

“[N]othing can be done. This is a permanent situation, you’ll just have to do your 

time.” Id. 

The Eighth Amendment requires states to provide inmates reasonably adequate 

sanitation and utilities such that an inmate’s mental and physical wellbeing is not 

threatened. Ramos, 639 F.2d at 568. 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 his physical and mental wellbeing. See DeSpain v. 

Uphoff, 264 F.3d 965, 974–75 (10th Cir. 2001). And, as with the 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 they dismissed his 

request. These allegations, viewed in the light most favorable to Mr. Womble, are 

sufficient to support the inference that Mr. Chrisman and Mr. Sharp knew of but 

disregarded the risks posed by the bathrooms. See Farmer, 511 U.S. at 842. 

Therefore, the district court should not have dismissed this claim under Rule 

12(b)(6). 

D. Denial of Default Judgment 

Last, Mr. Womble argues that the district court improperly denied his motion 

for default judgment. The district court denied the motion because it concluded that 

Mr. Chrisman and Mr. Sharp were not served properly. 2 R. 25–26. 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 denial 
12 

of Mr. Womble’s motion for default judgment. See Rios v. Ziglar, 398 F.3d 1201, 

1206 n.3 (10th Cir. 2005) (“To make a sufficient argument on appeal, a party must 

advance a reasoned argument concerning each ground of the appeal, 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 part, and REMANDED. We GRANT Mr.

Womble’s request to supplement his October 17, 2017, response with a Rule 

4(c)(1)(A)(i) declaration. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge