UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

KENT G. SAVAGE, 

 Plaintiff - Appellant, 

v.

MARY FALLIN, individually; ROBERT 

PATTON, individually; JASON BRYANT, 

individually; JOE ALLBAUGH, 

individually; TERRY CLINE, individually 

and in his official capacity as 

Commissioner of Health Department, State 

of Oklahoma; ROBERT DOKE, 

individually and in his official capacity as 

State Fire Marshal, State of Oklahoma; 

JEFFREY HICKMAN, individually and in 

his official capacity as Speaker of the 

House, State of Oklahoma; BRIAN 

BINGMAN, individually and in his official 

capacity as Senate President Pro Tem, State 

of Oklahoma; CLARK JOLLEY, 

individually and in his official capacity as 

Chairman of the Senate Appropriations 

Committee, State of Oklahoma; SCOTT 

CROW, in his official capacity as Director 

of the Oklahoma Department of 

Corrections; KEVIN STITT, in his official 

capacity as Governor of the State of 

Oklahoma; RICK WHITTEN, in his 

official capacity as Warden of the James 

Crabtree Correctional Center, 

Defendants - Appellees.

No. 20-6025

(D.C. No. 5:15-CV-01194-HE)

(W.D. Okla.)

_________________________________

FILED

United States Court of Appeals

Tenth Circuit

February 9, 2021

Christopher M. Wolpert

Clerk of Court
2

ORDER AND JUDGMENT*

_________________________________

Before HARTZ, KELLY, and EID, Circuit Judges.

_________________________________

Kent Savage appeals the district court’s dismissal of his claims against 

numerous Oklahoma officials involved with the state prison system. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.

BACKGROUND

Savage was an inmate at the James Crabtree Correctional Center (JCCC) in 

Helena, Oklahoma. Prison officials have since transferred him to the North Fork 

Correctional Center (NFCC) in Sayre, Oklahoma. In 2015, Savage, pro se, brought 

claims under 42 U.S.C. § 1983 against eight defendants in their individual and 

official capacities: Mary Fallin, the governor of Oklahoma; Robert Patton, the 

director of the Oklahoma Department of Corrections (ODOC);

1 Jason Bryant, the 

JCCC warden;

2 Terry Cline, commissioner of the Oklahoma Department of Health; 

* 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.

1 While this case was pending, the district court substituted subsequent ODOC 

directors Joe Allbaugh and Scott Crow, respectively, as defendants for Savage’s 

official capacity claims.

2 The district court later substituted Rick Witten, who succeeded Bryant as 

JCCC warden, as the defendant for Savage’s official capacity claims.
3

Robert Doke, the Oklahoma fire marshal; and three members of the Oklahoma 

legislature (Jeffrey Hickman, Brian Bingman, and Clark Jolley). Savage alleged the 

conditions at JCCC were unconstitutionally harsh due to overcrowding and 

understaffing and that the defendants acted with deliberate indifference toward those 

conditions. He also asserted a state-law claim for intentional infliction of emotional 

distress (IIED). 

The district court summarily dismissed all claims. In Savage v. Fallin, 663 F. 

App’x 588, 594 (10th Cir. 2016), we affirmed a majority of the dismissal order, but 

reversed as to defendants Fallin, Bryant, and Patton. On remand, Savage filed an 

amended complaint, seeking to reinstate his claims against all defendants and to 

bolster some of his factual allegations. The district court ultimately dismissed all 

claims in three orders.

In its first dismissal order, the district court screened the amended complaint 

and dismissed all claims against Cline, Doke, Hickman, Bingman, and Jolley. The 

court dismissed the claims against Cline and Doke under 28 U.S.C. § 1915A(b)(1)

because the amended complaint failed to state a claim upon which relief could be 

granted against them. The court concluded Savage’s amended complaint failed to 

plead both the objective and subjective components of an Eighth Amendment claim, 

and that it failed to allege a sufficiently outrageous level of conduct on the part of 

these defendants to impose liability against them for IIED, see Durham v. 

McDonald’s Rests. of Okla., Inc., 256 P.3d 64, 67 (Okla. 2011) (holding that, to state 

a claim for IIED under Oklahoma law, “[t]he test is whether the conduct is so 
4

extreme in degree as to go beyond all possible bounds of decency, and is atrocious 

and utterly intolerable in a civilized community”). The district court dismissed the

Eighth Amendment and IIED claims against Hickman, Bingman, and Jolley under

28 U.S.C. § 1915A(b)(2) because absolute legislative immunity shielded those 

defendants from liability. 

In the second dismissal order, the court ruled on motions to dismiss filed by 

Fallin, Patton, Bryant, and Allbaugh. It denied the motion as to the claims against 

Bryant and Allbaugh in their official capacities because this court had already 

concluded the complaint pled sufficient facts to state an Eighth Amendment claim for 

deliberate indifference against them.3

 It also denied the motion as to claims against 

Bryant and Patton in their individual capacities based on our prior order. The court 

granted the motion as to the individual capacity claims against Allbaugh, however,

because the amended complaint did not sufficiently allege that he was personally 

involved in the deprivation of Savage’s federal rights.

The court granted Fallin’s motion in full under the doctrine of legislative 

immunity. We had previously reversed the court’s dismissal of the claims against 

Fallin, reasoning that Savage might have stated an Eighth Amendment claim against 

her based on actions she took in an administrative capacity. Savage, 663 F. App’x at 

591. The district court concluded that, despite the conclusory use of the term 

3 Because Patton no longer acted in an official capacity, the district court 

implicitly granted the motion to dismiss the claim against him in his official capacity. 
5

“administrative” in the amended complaint, the actions Savage complained of were 

within Fallin’s policy-making authority and thus subject to legislative immunity. 

In its third dismissal order, the district court addressed Savage’s official 

capacity claims against ODOC director Crow and JCCC warden Whitten and his 

individual capacity claims against Bryant and Patton. The magistrate ordered the 

defendants to prepare a Special Report addressing Savage’s claims. The Special 

Report stated that, at the time Savage filed his complaint, JCCC was operating below

Oklahoma Board of Corrections capacity (capacity 1313, prisoner count 1312). 

Although the prisoner count of JCCC increased above capacity by early 2017, by that 

time prison officials had transferred Savage to NFCC, where the prisoner count was 

well below capacity (capacity 2610, prisoner count 1821). At that time, NFCC had 

filled 217 staff positions, budgeted 225 staff positions, and had authorization to fill 

295 staff positions. 

Given these facts, the district court concluded Savage failed to demonstrate a 

genuine dispute of material fact regarding whether he faced an unconstitutional risk 

of violence or physical injury due to overcrowding and understaffing. The court 

concluded the facilities generally met the minimum standards set by the principal 

accrediting agency, the American Corrections Association (ACA), and that “prisoner 

counts were well within the zone suggested by the various Eighth Amendment cases 

as meeting constitutional norms.” R. Vol. 2 at 271. See, e.g., Brown v. Plata, 

563 U.S. 493, 539–41 (2011) (affirming 137.5% capacity as a remedial target in case 

alleging unconstitutional overcrowding).
6

The district court dismissed as moot the official capacity claims against the 

JCCC warden because Savage was no longer a JCCC inmate. The court dismissed 

the official capacity claims against ODOC director Crow and the individual capacity 

claims against Bryant and Patton based on the findings in the Special Report. 

Finally, the court declined to exercise supplemental jurisdiction over Savage’s 

remaining IIED claims. Savage appeals, raising nine issues and seeking 

reinstatement of all claims against all defendants. 

DISCUSSION

While we construe pro se arguments liberally, we “cannot take on the 

responsibility of serving as the litigant’s attorney in constructing arguments and 

searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 

(10th Cir. 2005). The first and second dismissal orders were for failure to state a 

claim upon which relief can be granted, and the third was a grant of summary 

judgment. We review both a dismissal under Fed. R. Civ. P. 12(b)(6) and a grant of 

summary judgment under Fed. R. Civ. P. 56 de novo. See Barnett v. Hall, Estill, 

Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1234 (10th Cir. 2020)

(dismissals for failure to state a claim); May v. Segovia, 929 F.3d 1223, 1234

(10th Cir. 2019) (grants of summary judgment). We likewise “review de novo 

whether Defendants are immune from suit.” Collins v. Daniels, 916 F.3d 1302, 1315 

(10th Cir.), cert. denied, 140 S. Ct. 203 (2019). 

To withstand a motion to dismiss, a complaint must contain “enough facts to 

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 
7

550 U.S. 544, 570 (2007). Conclusory allegations do not suffice. Id. at 557. A 

claim is facially plausible “when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Summary judgment is appropriate “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). “We examine the record and all reasonable 

inferences that might be drawn from it in the light most favorable to the non-moving 

party.” T-Mobile Cent., LLC v. Unified Gov’t of Wyandotte Cnty., 546 F.3d 1299, 

1306 (10th Cir. 2008) (internal quotation marks omitted). 

1. Whether the District Court Correctly Concluded that Legislative Immunity Barred

Savage’s Claims Against Hickman, Bingman, and Jolley 

Savage challenges the district court’s dismissal, under the doctrine of absolute 

legislative immunity, of his amended claims against three Oklahoma legislators. 

“Absolute legislative immunity attaches to all actions taken in the sphere of 

legitimate legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)

(internal quotation marks omitted). This includes decisions regarding prison funding, 

which are “a discretionary, policymaking decision implicating the budgetary 

priorities of the [state] and the services the [state] provides to its constituents.” Id. at 

55–56. 

Citing Ryan v. Burlington County, 889 F.2d 1286, 1291 (3d Cir. 1989), Savage 

argues these defendants’ actions were administrative, not legislative, because their 
8

decisions only affected a small number of individuals—i.e., Oklahoma’s prison 

population. But we have declined to follow Ryan and cases like it which determine 

legislative function by “rest[ing] their analysis on the number of persons affected by 

a legislative body’s decision.” Kamplain v. Curry Cnty. Bd. of Comm’rs, 159 F.3d 

1248, 1251 (10th Cir. 1998).

4

 We therefore reject this argument and affirm the 

dismissal of Hickman, Bingman, and Jolley.

2. Whether the District Court Correctly Concluded Savage Failed to Sufficiently 

Plead Eighth Amendment Claims Against Cline and Doke 

Savage challenges the district court’s dismissal of his Eighth Amendment 

claims against Cline and Doke. An Eighth Amendment conditions-of-confinement 

claim has both a subjective and objective component: “courts considering a 

prisoner’s claim must ask both if the officials acted with a sufficiently culpable state 

of mind and if the alleged wrongdoing was objectively harmful enough to establish a 

constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (internal 

alterations and quotation marks omitted). An official is not liable “unless the official 

knows of and disregards an excessive risk to inmate health or safety; the official must 

both be aware of facts from which the inference could be drawn that a substantial risk 

of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 

511 U.S. 825, 837 (1994). For the objective component, “only those deprivations 

4 Savage also asserts the doctrine of legislative immunity violates the 

constitutional doctrine of separation of powers. But, because he devotes no more 

than one unsupported sentence to this argument, it is insufficiently developed for us 

to consider. See Garrett, 425 F.3d at 841. 
9

denying the minimal civilized measure of life’s necessities are sufficiently grave to 

form the basis of an Eighth Amendment violation.” Hudson, 503 U.S. at 9 (internal 

quotation marks omitted). 

In his original complaint, Savage alleged Cline and Doke were individually 

liable for the crowded prison conditions because, despite regular inspections of 

JCCC, they did not act to remedy the overcrowding. We held these allegations were 

insufficient to plead the subjective element of an Eighth Amendment claim because 

they “[did] not plausibly suggest that [Cline or Doke] were personally aware of 

conditions at JCCC giving rise to a substantial risk that inmates would suffer serious 

harm.” Savage, 663 F. App’x at 594. We also held that, to the extent Savage 

complained that the crowded prison conditions impacted “sanitation facilities, food 

supplies, prison maintenance, and other programs,” his allegations “[rose] merely to 

the level of discomfort or inconvenience, and [were] not sufficiently serious to 

support an Eighth Amendment claim.” Id. at 592. Although we reinstated Savage’s

claims that prison conditions posed an unconstitutional risk to his personal safety, we 

affirmed the dismissal of his claims alleging substandard environmental conditions. 

In his amended complaint, Savage added allegations that Cline and Doke had 

personally read inspection reports showing substandard environmental conditions. R. 

Vol. 1 at 253. Assuming these additional allegations cured the deficiency in his 

complaint in the subjective component of his claims, they did not address the 

deficiency in the objective component pertaining to substandard environmental 

conditions. We therefore affirm the dismissal of Cline and Doke. 
10

3. Whether the District Court Correctly Dismissed Savage’s § 1983 Claim for 

Emotional Distress

Savage challenges the district court’s dismissal, under 42 U.S.C. § 1997e(e), 

of the claims in his amended complaint for emotional distress damages in connection 

with his § 1983 claims. We need not address this challenge separately, because

Savage’s § 1983 claims fail regardless of whether he made the prior showing of 

physical injury required under § 1997e(e). 

4. Whether the District Court Correctly Concluded Savage Failed to Sufficiently 

Plead Eighth Amendment Claims Against Allbaugh

Savage argues the district court erroneously dismissed the individual capacity 

claims against Allbaugh in his amended complaint. Savage’s claims against 

Allbaugh, unlike his claims against Patton and Bryant, did not allege that Allbaugh 

had any personal involvement in the alleged violation of his Eighth Amendment 

rights. See Farmer, 511 U.S. at 837. The district court therefore correctly dismissed 

them.

5. Whether the District Court Correctly Dismissed the Claims Against Fallin Based 

on Legislative Immunity 

Savage argues the district court erred in dismissing his claims against Fallin 

because his amended complaint adequately pled that she took unlawful administrative 

actions outside the scope of her legislative immunity. In his amended complaint, 

Savage alleged Fallin was liable for failing to sign certain bills, failing to seek a 

larger appropriation for ODOC, failing to “prompt” the Oklahoma legislature to 

increase the ODOC budget, promoting laws to make more crimes a felony, defending 
11

the lack of funding to ODOC, and appointing too many former prosecutors to the 

pardon and parole board who would not grant pardons or parole. We agree with the 

district court that these actions are all within the scope of Fallin’s policymaking 

authority and that legislative immunity therefore protects her from suit. 

Savage now argues that “only some of the complaints might possibly be 

considered legislative, but not all.” Opening Br. at 19. He points to the allegation in 

his amended complaint that “Governor Fallin was primarily responsible for the 

continual delay of implementing the Justice Reform Initiative (JRI) and other 

proposed programs to address prison overcrowding and understaffing.” Id. (quoting 

R. Vol. 1 at 251). Assuming, though, that delay of the JRI is an administrative 

action, the conclusory allegation that Fallin “was primarily responsible” for that 

delay, without more, is insufficient to state a claim for relief under § 1983. We 

therefore affirm the district court’s dismissal of the claims against Fallin. 

6. Whether the District Court Reasonably Declined to Appoint Counsel or to Permit 

More Discovery Before Ruling on Defendants’ Motions for Summary Judgment

Savage challenges the district court’s third dismissal order on the basis that he 

did not have the benefit of appointed counsel when preparing written discovery 

requests prior to the entry of summary judgment.5

 He acknowledges that he “had a 

few relevant discovery request[s] which [were] attributed to luck,” Opening Br. at 22, 

5

Appointed counsel represented Savage from August 2017 to May 2018 but

withdrew for personal reasons. Savage moved for appointed counsel again, but the 

district court denied that motion in October 2018. Savage appealed that denial, but 

we dismissed the appeal for lack of subject matter jurisdiction. 
12

but asserts that more discovery and the help of appointed counsel would have led to a 

different outcome. We reject this contention. “We review the denial of appointment 

of counsel in a civil case for an abuse of discretion.” Rucks v. Boergermann, 57 F.3d 

978, 979 (10th Cir. 1995). Savage does not offer any reason to conclude the district 

court abused its discretion when it declined to appoint counsel. He also does not 

articulate what discovery the district court denied, why the denial of that discovery 

was improper, or how the discovery would have altered the summary-judgment 

decision. He therefore falls well short of establishing an abuse of discretion.

7. Whether the District Court Correctly Granted Summary Judgment Against Savage 

on his Eighth Amendment Claims Based on the Special Report

Savage argues the district court should not have granted summary judgment on 

his Eighth Amendment claims because, notwithstanding the findings of the Special 

Report, the conditions at JCCC and NFCC posed an unconstitutionally high risk to 

his personal safety. He argues the district court erred by relying on an ACA audit 

report of JCCC, points to allegations in his amended complaint that the staffing 

levels at JCCC were insufficient, and cites interrogatory responses in which the 

defendants indicated there were 128 “reportable incidents” at JCCC from December 

25, 2013 through November 1, 2018 and 309 such incidents at NFCC from August 

17, 2016 through December 31, 2018. (Opening Br. at 25–26, citing R. Vol. 2 at 173, 

182). These arguments are unpersuasive. 

Although we agree that accreditation from the ACA does not, in itself, 

guarantee that prison conditions satisfy constitutional standards, see Gates v. Cook, 
13

376 F.3d 323, 337 (5th Cir. 2004), the district court did not rely exclusively on 

JCCC’s compliance with ACA standards when it concluded that JCCC’s conditions 

did not pose an unconstitutional risk to inmate safety. The undisputed material facts 

demonstrated that prisoner counts were lower than that suggested by Eighth 

Amendment cases as meeting constitutional standards and that the incidence of 

violence was rare at JCCC while Savage was an inmate there. And, the “reportable 

incidents” Savage cites from the defendants’ interrogatory responses include many 

incidents other than verified instances of inmate-on-inmate violence. See R. Vol. 2 at 

179–82. These statistics alone are insufficient to demonstrate Savage was 

“incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 

511 U.S. at 834. 

8. Whether the District Court Correctly Granted Summary Judgment to Patton 

Savage argues the district court erred in dismissing his individual capacity 

claims against Patton. Savage asserted that Patton was individually responsible for 

the decision to transfer some prisoners from county jails to the state system. The 

district court, relying on Okla. Stat. tit. 57, § 521(A), accepted Patton’s argument that 

such transfers were legally required. Savage challenges that argument on appeal. 

We need not resolve this challenge, though, because we agree with the district court’s 

ultimate determination that JCCC and NFCC were not unconstitutionally 

overcrowded. 
14

9. Whether the District Court Correctly Dismissed Savage’s Claims for IIED

Savage argues the district court should reinstate his claim for IIED. The 

district court declined to exercise supplemental jurisdiction over this claim because it 

dismissed all federal claims. See Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 

2010) (“If federal claims are dismissed before trial, leaving only issues of state law, 

the federal court should decline the exercise of jurisdiction by dismissing the case 

without prejudice.” (internal quotation marks and alterations omitted)). Having 

affirmed the dismissal of the federal claims on the merits, we decline to disturb this 

conclusion as to the state claims. 

CONCLUSION

We affirm the judgment of the district court.

Entered for the Court

Allison H. Eid

Circuit Judge