*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 10 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BONITA JOHNSON, f/k/a Bonita

Anderson,

Plaintiff-Appellant,

v.

KANSAS DEPARTMENT OF

CORRECTIONS; TOPEKA

CORRECTIONAL FACILITY;

NURSES STAFF, TOPEKA

CORRECTIONAL FACILITY,

Defendants-Appellees.

No. 96-3314

(D.C. No. 96-CV-3376)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Ms. Johnson, a pro se plaintiff proceeding in forma pauperis, filed the

present action pursuant to 42 U.S.C. § 1983 in the United States District Court for

the District of Kansas, seeking one billion dollars in damages. In her complaint,

Ms. Johnson claims that while she was detained in the Topeka Correctional

Facility, its employees violated her constitutional rights by assigning her to a top

bunk even though the employees knew she "had a Class II medical"; Ms. Johnson

fell from the bunk injuring her knee. Ms. Johnson alleges the employees' failure

to properly perform their duties and their failure to properly treat her resulted in

her injuries.

The district court dismissed the § 1983 action for its failure to state a claim

pursuant to 28 U.S.C. § 1915(e)(2). Specifically, the district court held Ms.

Johnson's allegation the employees acted with mere negligence insufficient to

state a claim under § 1983. Ms. Johnson filed a notice of appeal and an

application to proceed on appeal in forma pauperis with this court. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, deny Ms. Johnson's motion to proceed

in forma pauperis, and dismiss her appeal for failure to state a claim pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii).

Initially, we note Ms. Johnson attempts to raise claims before this court not

presented to the district court. However, even though Ms. Johnson is proceeding

pro se such that her pleadings are construed liberally, it is a general rule this court
1

 Although Ms. Johnson alleges the employees "left me walking for 4

weeks without nothing," such factual allegations are insufficient to show the

employees acted with the requisite degree of culpability necessary to state a claim

under 42 U.S.C. § 1983. Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995)

(under § 1983, liability is predicated on the defendant's deliberate deprivation of

constitutional rights, and not on negligence); Handy v. Price, 996 F.2d 1064,

1066 (10th Cir. 1993) (prisoner advancing a claim of inadequate medical care

must allege "deliberate indifference" to "serious" medical needs). Here, Ms.

Johnson fails to allege facts showing the employees acted with intent to deprive

her of her constitutional rights, or acted with deliberate indifference to her

medical needs. Consequently, Ms. Johnson fails to state a claim under 42 U.S.C.

§ 1983.

-3-

will not consider claims a plaintiff failed to raise in the district court. United

States v. Edwards, 69 F.3d 419, 427 n.5 (10th Cir. 1995) (a pro se party must

follow the same rules of procedure governing other litigants), cert. denied, 116 S.

Ct. 2497 (1996); Walker v. Mathers (In re Walker), 959 F.2d 894, 896 (10th Cir.

1992) (general rule that a federal appellate court does not consider an issue not

before the district court). Because Ms. Johnson has not attempted to convince us

otherwise, we apply that general rule here.

As to Ms. Johnson's claim her constitutional rights were violated due to the

employees' negligence, we agree with the district court Ms. Johnson fails to state

a claim under 42 U.S.C. § 1983.1 28 U.S.C. § 1915(e)(2)(B)(ii). To avoid a

waste of judicial resources, we therefore deny Ms. Johnson's motion to proceed in

forma pauperis, and dismiss her appeal for failure to state a claim pursuant to 28
-4-

U.S.C. § 1915(e)(2)(B)(ii) for substantially the same reasons given by the district

court. A copy of the district court's order is attached hereto.

Entered for the Court

WADE BRORBY

United States Circuit Judge