UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHARLES DALE WILKINS, 

 Plaintiff - Appellant, 

v. 

JERRY CHRISMAN; COURTNY REED; 

CAROLE M. DENTINA; VIVEK 

KHETPAL; BRENDA BIRCHFIELD, 

 Defendants - Appellees. 

No. 16-7024 

(D.C. No. 6:15-CV-00190-RAW-SPS) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, GORSUCH, and MATHESON, Circuit Judges. 

_________________________________ 

Plaintiff-Appellant Charles Wilkins, a state inmate proceeding pro se, appeals 

from the district court’s order dismissing his civil rights action under Fed. R. Civ. P. 

12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. Background 

Mr. Wilkins is incarcerated at the Mack Alford Correctional Center (“MACC”) 

in Oklahoma. In 2014, he was a passenger in a MACC transport van that collided 

 *

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

unanimously that oral argument would not materially 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 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 

November 21, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

with a truck. He complained of chest, shoulder, and leg pain at the accident scene so 

he was taken to a medical center for emergency care. He was then transferred to 

another medical center, where he spent four days. Both facilities performed CT 

scans. When he was discharged, Wilkins was instructed not to work for at least a 

week and to follow a low-salt diet. After his return to MACC, he received treatment 

by medical providers outside of and within MACC; nevertheless, he continued to 

complain about his chest, shoulder, and abdominal areas and also about the lack of 

proper medical treatment from MACC staff. Six months later, a doctor informed 

Wilkins he had a broken sternum, severe left shoulder trauma requiring immediate 

surgery, several broken ribs, and a chipped bone in his knee. 

Wilkins filed a civil rights complaint under 42 U.S.C. § 1983 against 

Jerry Chrisman (the former warden at MACC), Courtny Reed (the Oklahoma 

Department of Corrections officer who was driving the transport van during the 

accident), Brenda Birchfield (a medical administrator at MACC), Dr. Carole Dentina 

(the doctor at the first medical facility), and Dr. Vivek Khetpal (the doctor at the 

second medical facility), suing each defendant in his or her individual and official 

capacities. He asserted state-law negligence claims and violations of his Eighth and 

Fourteenth Amendment rights and sought compensatory and punitive damages for his 

injuries. 

Chrisman, Reed, Birchfield, and Khetpal filed a motion to dismiss, which was 

granted. The district court held: (1) Wilkins could not bring an official-capacity, 

state-law negligence claim against Reed (or any other defendant) because the State of 
3 

Oklahoma is the only proper defendant under the Oklahoma Governmental Tort 

Claims Act (“GTCA”); (2) the GTCA exempts Chrisman, Reed, and Birchfield from 

tort liability in their individual capacities; (3) the official-capacity, § 1983 claims 

against Birchfield and Chrisman are claims against the State of Oklahoma that are 

precluded by the Eleventh Amendment and principles of sovereign immunity; 

(4) Wilkins did not show personal participation by Chrisman and Birchfield as 

required to support the alleged constitutional violations; and (5) Wilkins did not 

show Khetpal was acting under color of state law as required to state a § 1983 claim. 

The court declined to exercise jurisdiction over the state-law claims against Khetpal. 

Dentina was not served in accordance with Fed. R. Civ. P. 4(m). The district 

court held that Wilkins did not show good cause for the lack of service and in any 

event, service would be futile given his failure to demonstrate Dentina was acting 

under color of state law. The court dismissed the claims against Dentina under 

28 U.S.C. § 1915A(b) for failure to state a claim and imposed a “strike” under 

28 U.S.C. § 1915(g). 

II. Analysis 

Wilkins does not contest the district court’s dismissal of his claims against the 

prison officials in their official capacities. In addition, he expressly concedes that the 

prison officials are immune from tort claims in their individual capacities and that 

punitive damages are inappropriate under the GTCA. See Aplt. Opening Br., Att. C. 

Wilkins raises only two issues on appeal. First, he asserts the district court 

erred in dismissing his § 1983 claim for failure to demonstrate that Khetpal was 
4 

acting under color of state law. And second, he asserts the district court erred in 

dismissing his claim against Dentina for failure to comply with Rule 4(m). 

A. Claim Against Dr. Khetpal 

We review de novo the district court’s dismissal of Wilkins’ claim against 

Khetpal for failure to state a claim, accepting all well-pleaded factual allegations as 

true. Howard v. Waide, 534 F.3d 1227, 1242–43 (10th Cir. 2008). Because Wilkins 

is proceeding pro se, “we construe his pleadings liberally.” Ledbetter v. City of 

Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). But a complaint “that offers labels 

and conclusions or a formulaic recitation of the elements of a cause of action” or 

“tenders naked assertions devoid of further factual enhancement” will not suffice. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and brackets 

omitted). We make some allowances for deficiencies, such as unfamiliarity with 

pleading requirements, failure to cite appropriate legal authority, and confusion of 

legal theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 

(10th Cir. 2005). But “the court cannot take on the responsibility of serving as the 

litigant’s attorney in constructing arguments and searching the record.” Id. And we 

“will not supply additional factual allegations to round out a plaintiff’s complaint or 

construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 

1170, 1173-74 (10th Cir. 1997). 

We affirm for substantially the same reasons provided by the district court. 

“Section 1983 provides a federal civil remedy for the ‘deprivation of any rights, 

privileges, or immunities secured by the Constitution’ by any person acting under 
5 

color of state law.” McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011) 

(quoting 42 U.S.C. § 1983). Khetpal is a physician at a private medical center, and 

Wilkins has not pleaded sufficient facts to allow the court to reasonably infer that 

Khetpal was acting under color of state law when he treated Wilkins after the 

accident. See Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (“In order to hold a 

private individual liable under § 1983, it must be shown that the private person was 

jointly engaged with state officials in the challenged action, or has obtained 

significant aid from state officials, or that the private individual’s conduct is in some 

other way chargeable to the State.” (internal quotation marks and brackets omitted)). 

His complaint proffers only vague and conclusory allegations to this effect, and his 

appellate brief merely assumes this prerequisite to liability. 

B. Claim Against Dr. Dentina 

Wilkins contends the district court erred in dismissing his claim against the 

other private doctor, Dentina, for failure to comply with Rule 4(m). This contention 

lacks merit. As an initial matter, although the district court found that Wilkins did 

not show good cause for his failure to serve Dentina, it actually dismissed the claim 

against Dentina for failure to state a claim. See R. at 103 (“Therefore, Dr. Dentina is 

dismissed without prejudice from this action, pursuant to 28 U.S.C. § 1915A(b) for 

failure to state a claim upon which relief may be granted.”); id. at 104 (same). 

We agree with the district court’s reasoning. Like Khetpal, Dentina is a 

physician at a private medical center. Yet here too Wilkins has not demonstrated—

through his complaint or appellate brief—that Dentina was acting under color of state 
6 

law when she treated him. Again, his vague and conclusory allegations fail to show 

this important prerequisite to § 1983 liability is plausible on its face. 

Furthermore, to the extent, if any, the untimely service of process did factor 

into the dismissal, we perceive no abuse of discretion based on our careful review of 

the record. See Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995) (“We 

review the district court’s dismissal for untimely service for an abuse of discretion.”). 

“A pro se litigant is still obligated to follow the requirements of Fed. R. Civ. P. 4.” 

DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir. 1993); see also F.D.I.C. v. Oaklawn 

Apartments, 959 F.2d 170, 174 (10th Cir. 1992) (explaining that the burden of 

establishing validity of service rests with the plaintiff). Wilkins did not provide the 

United States Marshals with a valid address for Dentina, preventing them from 

effecting service during the timeframe specified in Rule 4(m). 

III. Conclusion 

The judgment of the district court is affirmed. The district court granted 

Wilkins’ motion to proceed on appeal without prepayment of costs or fees. We 

remind him of his obligation to continue making partial payments until his filing fee 

is paid in full. 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge