UNITED STATES COURT OF APPEALS

Office of the Clerk

Byron White United States Courthouse

1823 Stout Street

Denver, CO 80257

Patrick Fisher Elisabeth Shumaker

Clerk Chief Deputy Clerk

February 26, 1996

TO: ALL RECIPIENTS OF THE CAPTIONED ORDER AND JUDGMENT

RE: 95-2153, Bauer v. Dantis

 Filed February 21, 1996 by Judge Brorby

Please be advised of the following correction to the captioned decision:

Page 2, first full paragraph, third line from the bottom, the sentence that starts "Bauer,

and there is nothing in the complaint to indicate he intended to do so.", should read "Inmate

Joseph Sanchez did not physically harm Mr. Bauer, and there is nothing in the complaint to

indicate he intended to do so.". 

Attached is a substitute page 2.

Very truly yours,

Patrick Fisher,

Clerk

By:

Barbara Schermerhorn

Deputy Clerk

Attachment
*

 This order and judgment is not binding precedent, except under the doctrines of law of the case,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.

1

 It is unclear from the pleadings whether Mr. Bauer was a pretrial detainee or a convicted prisoner

at the time his cause of action accrued. Although the Eighth Amendment applies only to convicted prisoners,

Bell v. Wolfish, 441 U.S. 520, 537 n.16 (1979), for the purposes of the claims alleged in the complaint,

pretrial detainees have essentially the same rights under the due process clause of the Fourteenth Amendment

as convicted prisoners have under the Eighth Amendment. City of Revere v. Massachusetts Gen. Hosp., 463

U.S. 239, 244 (1983). The district court therefore applied Eighth Amendment standards in analyzing Mr.

Bauer's claims. The parties do not contend it was error for the district court to do so. We therefore apply

those standards as well.

UNITED STATES COURT OF APPEALS

Filed 2/21/96

FOR THE TENTH CIRCUIT

________________________

DAVID MICHAEL BAUER, )

)

Plaintiff-Appellant, )

)

v. ) No. 95-2153

) (D.C. No. CIV-94-430-LH)

JOHN DANTIS, PAUL SANCHEZ, FRANK ) (D. New Mexico)

LOVATO, )

)

Defendants-Appellees. )

__________________________

ORDER AND JUDGMENT*

_________________________

Before BRORBY, EBEL and HENRY, 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 cause is therefore ordered submitted without oral argument.

Plaintiff David Michael Bauer filed a complaint against John Dantis, the Director of the

Bernalillo County, New Mexico, Detention Center, and Correctional Officers Paul Sanchez and

Frank Lovato pursuant to 42 U.S.C. § 1983, alleging he suffered cruel and unusual treatment while

incarcerated.1

 The district court granted judgment on the pleadings in favor of defendants. We
affirm.

I

The complaint alleges two causes of action: First, it alleges that the defendants were "well

aware of the aggressive and assaultive behavior" of inmates David Strichfeld and David Sanchez,

but allowed these inmates to "roam around the day room without restraints." One day, Correctional

Officers Sanchez and Lovato escorted Mr. Bauer from his cell to a meeting with his public defender

in the day room. The public defender told Mr. Bauer to make a phone call. While Mr. Bauer was

using the phone, inmate Joseph Sanchez began pounding on his cell door and "screaming threats

directed toward" Mr. Bauer. The public defender then suggested he use the telephone in "H-pod."

Either Correctional Officer Sanchez or Lovato then released inmate Joseph Sanchez from his cell

and "allowed inmate Sanchez to open the officer’s desk draw[er], and pull out the key to open the

pod door." While inmate Joseph Sanchez was trying to put the key in the door, he was "banging on

the windows and door screaming threats." Inmate Joseph Sanchez did not physically harm Mr.

Bauer, and there is nothing in the complaint to indicate he intended to do so. Mr. Bauer alleges,

however, that he suffered a "panic attack" as a result of the incident. Correctional Officers Sanchez

and Lovato did nothing to prevent inmate Joseph Sanchez’s behavior.

The complaint also alleges Director John Dantis negligently failed to insure Mr. Bauer’s

safety. According to Mr. Bauer, inmates are able to "rig" the locks on their cells so that they can

open them. After Mr. Bauer’s codefendant, William Thrasher, who was also incarcerated at the

Bernalillo County Detention Center, learned Mr. Bauer had entered the witness protection program

and planned to testify against him, Mr. Thrasher attempted to assault him, threatened to "rig" his

door, leave his cell, and kill him. Again, Mr. Bauer does not allege Mr. Thrasher ever physically

harmed him. The district court entered judgment on the pleadings in favor of defendants and this

appeal followed.
II

Mr. Bauer now contends the district court erred in granting judgment on the pleadings in

favor of defendants. We review orders granting judgment on the pleadings under Fed. R. Civ. P.

12(c) de novo using the standard of review applicable to motions to dismiss under Fed. R. Civ. P.

12(b)(6). Estate of Washington, v. United States, Sectretary of Health, 53 F.3d 1173, 1174 (10th Cir.

1995); McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.), cert. denied, 502 U.S. 894

(1991). "'We will uphold a dismissal under Fed. R. Civ. P. 12(b)(6) only when it appears that the

plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.'

In making this determination, we must 'accept all the well-pleaded allegations of the complaint as

true and must construe them in the light most favorable to the plaintiff.'" Roman v. Cessna Aircraft

Co., 55 F.3d 542, 543 (10th Cir. 1995) (quoting Sharp v. United Airlines, Inc., 967 F.2d 404, 406

(10th Cir.), 113 S. Ct. 464 (1992)). Where, as here, the plaintiff is acting pro se, the Supreme Court

has directed us to construe the pleadings liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972),

but it is not the proper function of the district court or of this court to assume the role of advocate

for the pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also United States

v. Staggs, 881 F.2d 1527, 1544 (10th Cir. 1989) (Ebel, J., dissenting) ("[T]his court has on several

occasions dismissed pro se complaints, which are to be liberally construed, for failure to plead

sufficient facts." (Citation omitted)), cert. denied, 493 U.S. 1020 (1990).

Regarding Mr. Bauer’s first cause of action, the district court held:

Under some circumstances, the failure to protect an inmate from a threat of violence may state a

claim under the Eighth Amendment. Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)

(failure to protect inmate from fellow prisoners may rise to the level of [E]ighth [A]mendment

violation). The general rule in the usual case, however, is that mere words, without more, do not

invade a federally protected right. Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (idle threats

of violence do not rise to the level of an Eighth Amendment violation); see also Morrison v. Martin,

755 F. Supp. 683, 687 (E.D.N.C.) (finding curses or verbal abuse by prison staff not a constitutional

violation), aff’d, 917 F.2d 1302 (4th Cir. 1990).... By implication, a defendant’s failure to protect

an inmate from idle threats by fellow inmates does not violate the Eighth Amendment. (Footnote

omitted.)

We find no fault in the district court's reasoning. In order to state a cause of action under the Eighth

Amendment, a prisoner must show the defendants acted with "deliberate indifference," Wilson v.
Seiter, 501 U.S. 294, 303 (1991); Estelle v. Gamble, 429 U.S. 97, 106 (1976), to his well-being or

constitutes "wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986). Given the

absence of any allegation in the complaint Inmate Joseph Sanchez actually attempted to physically

injure Mr. Bauer, Correctional Officers Sanchez's and Lovato's behavior was not so extreme as to

satisfy the very strict "deliberate indifference" standard for Eighth Amendment violations.

The district court concluded Mr. Bauer lacked standing to assert his second cause of action

in light of our decision in Swoboda v. Dubach, 992 F.2d 286 (10th Cir. 1993). In Swoboda, we held

a state prisoner lacked standing to raise claims on behalf of others and that "general observations"

about prison conditions are not actionable under 42 U.S.C. § 1983. Swoboda, 992 F.2d at 289-90.

Rather, to have standing, a state prisoner must state "specific facts connecting the allegedly

unconstitutional conditions with his own experiences [in the prison], or indicat[e] how the conditions

caused him injury." Id. at 289. In his complaint, Mr. Bauer alleges the poor condition of the locks

on the cell doors, including Mr. Thrasher's door, may have made it possible for Mr. Thrasher to fulfil

his threat to kill Mr. Bauer in retaliation for testifying against him and caused Mr. Bauer to fear Mr.

Thrasher would indeed do so. Mr. Bauer also alleges his fear was well-founded because Mr.

Thrasher had attempted to assault him in the past.

In our view, the complaint alleged a sufficient nexus between the condition of the cell doors

and his own individual situation at the Bernalillo County Detention Center. It was therefore error

for the district court to conclude he lacked standing under Swoboda. This conclusion, however, does

not end the matter. We must determine whether Mr. Bauer has stated a claim under the Eighth

Amendment. Because Mr. Thrasher, like inmate Joseph Sanchez, merely made verbal threats, we

conclude Director John Dantis’s failure to protect Mr. Bauer by repairing the locks on the cell doors

did not amount to deliberate indifference, and is therefore not actionable.

In light of the above, we conclude the district court was correct to hold the complaint failed

to state a cause of action under the Eighth Amendment. Mr. Bauer contends if we conclude his
original complaint was inadequate, we should nevertheless remand the case to the district court so

that he can file an amended complaint. Mr. Bauer failed to identify most of these supplemental facts

in his opposition to defendants' motion for judgment on the pleadings, but instead raises them for

the first time on appeal. We therefore do not consider them. Sac & Fox Nation v. Hanson, 47 F.3d

1061, 1063 (10th Cir.), cert. denied, 116 S. Ct. 57 (1995). If Mr. Bauer had been allowed to amend

his complaint to include the facts identified in his opposition, his claims still would not have been

cognizable. The judgment of the district court is therefore AFFIRMED.

Entered for the Court:

WADE BRORBY

United States Circuit Judge