*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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 

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 Clas s 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 no tice of appeal and an application to proceed on appeal in forma pauperiswith 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 cla im pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Initially, we note Ms. Johnson attempts to raise cl aims before this court not presented to the district court. However, even tho ugh Ms. Johnson is proceeding
pro se such that her pleadings are construed liberally, i t is a general rule this court1 Although Ms. Johnson alleges the employees "left me walking for 4

weeks without nothing," such factual allegations ar e insufficient to show the employees acted with the requisite degree of culpab ility 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 defen dant'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 o f 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 del iberate 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 rais e in the district court. United States v. Edwards , 69 F.3d 419, 427 n.5 (10th Cir. 1995) (a pro se p arty 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 ha s 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 c ourt 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 cla im 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 att ached hereto.

Entered for the Court

WADE BRORBY United States Circuit Judge