UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MONTE WHITEHEAD, Plaintiff - Appellant,

v. GREG MARCANTEL; OTERO COUNTY BOARD OF COUNTY COMMISSIONERS; MANAGEMENT AND TRAINING CORPORATION; JAMES FRAWNER; RICHARD MARTINEZ; FNU BO YD, Lieutenant; FNU EASON, Lieutenant; LARRY PHILLIPS; FNU CRUZ; C. PASCALE; LARRY MONK; FNU LNU, unnamed nurses; FNU WATERS; FNU PROSPERO; FNU LNU, unnamed correctional officer; FNU MORENO; KEEFE CORPORATION; FNU SMITH, Sergeant, Defendants - Appellees. No. 18-2021 (D.C. No. 2:17-CV -00275-RJ-KK) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , O’BRIEN , and CARSON , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 2, 2019
Elisabeth A. Shumaker Clerk of Court2 Pro se New Mexico state prisone r Monte Whitehead appeals the di strict court’s orders (1) dismissing his 42 U.S. C. § 1983 claims for failure t o state a claim, (2) dismissing his claims again st defendant Eason for insuffici ent service of process, and (3) denying his motions to am end the complaint and to suppl ement the pleadings. Mr. Whitehead does not challenge t he district court’s order rem anding his state-law claims to state court. We exerc ise jurisdiction under 28 U.S.C . § 1291. We affirm in part, vacate and remand in part, and reverse and remand in part

. I. BACKGROUND Mr. Whitehead is an inmate at the Otero County Prison Facility (OCPF) in Otero County, New Mexico. Mana gement and Training Corp. (MTC), a private company, operates OCPF. Mr. Wh itehead originally filed suit in New Mexico state court alleging federal constitutio nal claims and claims under t he New Mexico Tort Claims Act. In his complaint, Mr . Whitehead asserted that whil e incarcerated at OCPF, various prison personnel (t he prison-official defendants) violated his constitutional rights. 1 He also asserted constitutiona l claims against the prison

1 “To state a claim under § 1983 , a plaintiff . . . must show th at the alleged [constitutional] deprivation was committed by a person acting u nder color of state law.” West v. Atkins , 487 U.S. 42, 48 (1988); accord Yanaki v. Iomed, Inc. , 415 F.3d 1204, 1207 (10th Cir. 2005). Ne ither the district court nor th e parties question that, during the events material here, MTC and its employees acted un der color of state law and were subject to suit und er § 1983. We have no reason t o question this position. See Evans v. Newton , 382 U.S. 296, 299 (1966 ) (“[W]hen private individuals or groups a re endowed by the State with powers or f unctions governmental in nature , they become agencie s or instrumentaliti es of the State and subject to its constituti onal limitations.”); Smith v. Cochran , 339 F.3d 1205, 1215–16 (10th Cir. 2003) (“[P] ersons to whom the sta te delegates its pe nological functions,3 commissary vendor, Keefe Co mmissary Network (“Keefe”). 2 Defendant Otero County Board of County Commissioners (“Otero C ounty”) removed the case to federal dist rict court. The district court dismissed the federal claims under Federal Rule of C ivil Procedure 12(b)(6), declined to exercise supplemental jurisdiction over th e state claims, and remanded t he state claims to the state court. Mr. Whitehead the n filed a motion to reconsider, which the district court denied.
II. JURISDICTION “[W]e have an independe nt duty to examine our own jurisdiction. ” Williams v.
Akers , 837 F.3d 1075, 1077 n. 2 (10th Cir. 2016) ( internal quotation marks omitted). In his notice of appeal, Mr. Wh itehead designated only the orde r denying his postjudgment motion as the order being appealed. See Fed. R. App . P. 3(c)(1)(B) (stating the notice of appeal mus t “designate the judgment, ord er, or part thereof being appealed”). “Rule 3(c)(1 )(B)’s designation requirement i s jurisdictional.”
Williams , 837 F.3d at 1078. But “[w]hen a notice of appeal fails to de signate the

which include the custody and s upervision of prisoners, can be held liable for violations of the Ei ghth Amendment.”).

2 In addition to the named defenda nts, the complaint caption nam ed as defendants “unnamed nurses” and “ unnamed correctional officer.” Mr. Whitehead does not pursue claims against t he unnamed defendants except to allege generally that unidentified nurses failed to provide him medication. Cou rts generally permit a plaintiff to sue unna med defendants, but the plaintiff must “pr ovide[] an adequate description of some kind which is sufficient to identify the pe rson involved so process eventually can be served.” Roper v. Grayson , 81 F.3d 124, 126 (10th Cir. 1996). Mr. Whitehead has not des cribed the “unnamed nurses” or the “unnamed correctional officer,” so we do no t consider the claims against them.4 order from which the appeal is taken, our jurisdiction will not be defeated if other papers filed within the time pe riod for filing the notice of ap peal provide the ‘functional equivalent’ of w hat Rule 3 requires.” Denver & Rio Grande W. R.R. Co.
v. Union Pac. R.R. Co. , 119 F.3d 847, 849 (10th Cir. 1 997). Mr. Whitehead’s motion for leave to proceed in forma pa uperis, filed within the time f or filing a notice of appeal, “clearly sets forth [his ] intention to appeal from the [Memorandum Opinion and Order dismissing his claims] , and [the defendants] had adeq uate notice of the issue[s] being appealed and will not be prejudiced.” Id. Accordingly, we have jurisdiction over both the order granting dismissal and the ord er denying postjudgment relief.
III. FAILURE TO STATE A CLAIM FOR RELIEF
1. Standards of Review We review de novo the district c ourt’s order granting dismissal under Rule 12(b)(6), “accept[ing] the f acts alleged in the complaint as true and view[ing] them in the light most favorab le to the plaintiff[].” Lincoln v. Maketa , 880 F.3d 533, 537 (10th Cir. 2018) (internal quotation marks omitted). To wi thstand dismissal, “a complaint must contain sufficien t factual matter, accepted as t rue, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plau sibility when the plaintiff pleads factual content that allo ws the court to draw the reason able inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (20 07)). “Threadbare5 recitals of the elem ents of a cause of a ction, supported by mer e conclusory statements,” are not sufficient to state a claim for relief. Id. “Although a pro se litigant’s pleadings are to be construed li berally and held to a less stringent standard than fo rmal pleadings drafted by lawy ers, this court has repeatedly insisted that pro se parties follow the same rules o f procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005) (brackets, cit ation, and internal quotation ma rks omitted).
2. Denial of Hardback Books, Intern et Materials, and Newspapers; Approved-Vendors Requirement 3 Mr. Whitehead’s complaint ass erts that cert ain defendants 4 violated his First Amendment rights by preventing hi m from receiving hardback book s, books from non-approved vendors, informati on from the internet, and newspa per articles sent by mail. “Inmates have a First Ame ndment right to receive informa tion while in prison to the extent the right is not i nconsistent with prisoner statu s or the legitimate penological objectives of the prison.” Jacklovich v. Simmons , 392 F.3d 420, 426 (10th Cir. 2004). We generally a pply the four-factor test from Turner v. Safley , 482 U.S. 78, 89 (1987), to evalua te whether a prison regulation that “‘impinges on inmates’ constitutional rights . . . is reasonably related to l egitimate penological

3 Mr. Whitehead’s first issue on appeal asserts that the distric t court required him to cite legal authorities to s urvive the moti ons to dismiss . The court did not. We address below the allegations in the complaint as relevant to e ach substantive claim.

4 Mr. Whitehead names the followi ng defendants in regard to this claim: Marcantel, Otero County, MTC, F rawner, Martinez , Phillips, Cruz , and Moreno.6 interests.’” Al-Owhali v. Holder , 687 F.3d 1236, 1240 (10t h Cir. 2012) (quoting
Turner , 482 U.S. at 89). 5 However, “in ruling on a mo tion to dismiss, a court need only assess, as a general matter, whether a prison regulation i s reasonably related to a legitimate penological interest.” Al-Owhali , 687 F.3d at 1240 (i nternal quotation marks omitted). To state a claim that a prison regulation is unconstitutional, an inmate must “plead facts from which a plausi ble inference can be drawn that the action was not reasonably related to a legit imate penological interest.” Id. (internal quotation marks omitted). An inmate is not req uired to “identify every potenti al legitimate interest and plead against it.” Gee v. Pacheco , 627 F.3d 1178, 1188 (10t h Cir. 2010). “It is sufficient that he plead facts fr om which a plausible inference can be drawn that the action was not reasonably relate d to a legitimate penological i nterest.” Id. Mr. Whitehead alleges that certa in defendants limited his acces s to information which prevented him from writi ng opinion articles, engaging in religious reading, and

5 The Turner factors are: (1) whether a rational connecti on exists between the prison pol icy [or] regulation and a legitimate govern mental interest advanced as i ts justification; (2) whether alter native means of exercising the right are available notwithstanding the po licy or regulation; (3) what ef fect accommodating the exercise of the right would have on guards, o ther prisoners, and prison resources generally; and (4) whether read y, easy-to-implement alternatives e xist that would accommodate the prisoner’s rights. Beerheide v. Suthers , 286 F.3d 1179, 1185 ( 10th Cir. 2002) (citing Turner , 482 U.S. at 89–91).7 staying current with developments in the veterinary profession. He alleged in his complaint that he requested books on religion and veterinary me dicine, but the defendants denied his requests b ecause the books were hardback. The defendants also denied his requests for books from non-approved vendors, n ewspaper articles sent to him by mail, and acces s to the internet. In addition to the enumerated all egations, the complaint contai ns several attachments. 6 The attachments refer to prison policies that (1) limited rea ding material to that sent from approve d vendors, R. at 193; (2) pro hibited all hardcover books, id. at 186; Aplee. Supp. App at 185; ( 3) prohibited Mr. Whitehead from receiving newspaper articles th rough the mail, R. at 169; and ( 4) prohibited access to the internet absent warden approval, id. at 173. The defendants do not articulat e any legitimate penological int erests for these restrictions. Cf. Al-Owhali , 687 F.3d at 1241 (reviewing dismissal of complaint under Rule 12(b)(6), discussing the prison officials’ proffered justifications for the restrictions placed on the pris oner). In their appellate brief , the defendants cite only to Mr. Whitehead’s complaint fortheir general contention that “[t]here is a rational connection between [prison] mail and book regula tions and a leg itimate interest

6 The attachments provide additi onal facts that establish more t han “a sheer possibility that a defendant has acted unlawfully, or facts tha t are merely consistent with a defendant’s liability.” Gee , 627 F.3d at 1187 (inter nal quotation marks omitted); see Oxendine v. Kaplan , 241 F.3d 1272, 1275 ( 10th Cir. 2001) (“[I]n deciding a motion to dismiss pur suant to Rule 12(b)(6), a court may look both to the complaint itself and to any docume nts attached as exhibits to t he complaint.”). Thus, the court may properly rely on th ese attachments to determine w hether Mr. Whitehead adequately p leaded this claim. See Gee , 627 F.3d at 1187.8 regarding prison safety and secu rity.” Aplee. Prison Officials ’ Br. at 22 (citing Aplee. Supp. App. at 55–62). The district court ruled that Mr. Whitehead did “not allege tha t the restrictions on material by OCPF [were] not r easonably related to prison sec urity concerns, but, instead, simply disagree[d] wit h the restrictions.” R. at 984. The district court further ruled that “the fact tha t [Mr. Whitehead ] was able to w rite his article demonstrates that the restricti ons did not impair his constitut ional right of free speech and press.” Id. But the district court’s conc lusions do not address Mr. White head’s factual allegations that he wan ted materials for religious and veterinary study. Moreover, the district court di d not address Mr. Whitehead’s cl aims based on the prohibition of hardback books, the limit or ban on internet use , the ban on articles received in the mail, or the l imitations due to the approved-ve ndor list. Generally, “a federal appellate court does not c onsider an issue not passed u pon below.” Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10t h Cir. 1992) (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)). There fore, we vacate the dismissal of those claims and remand them to the district court for consideration in the first instance, which may include allowing the prison- official defendants to proffer a legitimate penological reason fo r the restrictions.9 3. Deliberate Indifference to P risoner’s Medical Needs Mr. Whitehead alleges defendant M onk, a prison nurse, violated his Eighth Amendment rights when Monk told M r. Whitehead to continue to ta ke his prescribed medication following an episode of syncope, 7 even though Mr. Wh itehead questioned the medication’s appropriateness . He further alleges that Monk prevented him from seeing a physician for a month following the syncope episode. “[D]eliberate indifference to ser ious medical needs of prisoner s constitutes the unnecessary and wanton infliction of pain proscribed by the Eig hth Amendment.” Estelle v. Gamble , 429 U.S. 97, 104 (1976) (citati on and internal quotation mark s omitted). Prison personnel “may thus be liable under § 1983 fo r indifference manifested in their response to the prisoner’s needs or by inte ntionally denying or delaying access to medical care or intentionally interfering wi th treatment once prescribed.” Estate of Booker v. Gomez , 745 F.3d 405, 429 (10th Cir. 2014) (ellipses and internal quotati on marks omitted). “To state a denial of medical ca re claim, a plaintiff must sati sfy both an objective and a subjective component.” Id. at 430 (internal quota tion marks omitted). To satisfy the objective componen t of a failure-to-treat claim, the prisoner’s medical need must be sufficiently serious. Id. A medical need is suffici ently serious “if it is one that is so obvious that eve n a lay person would easily reco gnize the necessity for

7 Syncope is “loss of consciousne ss from insuffici ent blood flow to the brain: faint.” Syncope, Merriam-Webs ter Online Dictionary, https://www.merriamwebster.com/dictionary/syncope (last visited Mar. 8, 2019).10 a doctor’s attention.” Id. (internal quotation marks omitted). To satisfy the subjective component, the prisone r must present “evidence of th e prison official’s culpable state of mind. He must show that the prison official acted or failed to act despite his knowledge of a substa ntial risk of serious harm.” Id. (citation and internal quotation marks omitted). This st andard is akin to criminal re cklessness. Farmer v.
Brennan , 511 U.S. 825, 836–37, 839–40 (1994). The district court assumed th e objective component had been sa tisfied. Accordingly, we address only th e subjective component. To that end, Mr. Whitehead alleged that Monk examined him f ollowing the syncope episode an d ensured he took his prescribed medication. Add itionally, Mr. Whitehead claims that a month later his doctor discontinued one medicati on. That assertion, however, d oes not demonstrate that Monk was deliberately indiff erent with regard to Mr. White head’s medical treatment. In fact, Mr. Whitehe ad does not allege that Monk “ knew he faced a substantial risk of harm and disr egarded that risk” by requirin g Mr. Whitehead to continue taking his pr escription medication. Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999) (emphasis adde d). Accordingly, Mr. Whitehead fails to establish that Monk’s actions were akin to criminal recklessness, and he does not satisfy the Eighth Amendment’s subjective component. Farmer , 511 U.S. at 836–37, 839–40. “At worst, [Mr. Whitehead alle ged that Monk] misdiagnosed [Mr. Whitehead’s] condition. But a misdiagnosis, even if risin g to the level of medical malpractice, is simply insufficient under our case law to satisfy the subjective component of a deli berate indifference claim.” Self v. Crum , 439 F.3d11 1227, 1234 (10th Cir. 2006); see Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) (“[A] difference of opinion [bet ween the prisoner and medical s taff] does not support a claim of cruel and unusual puni shment.”). Indeed, as the Sup reme Court has held, “[m]edical malpractice does not become a constitutional violati on merely because the victim is a prisoner.” Estelle , 429 U.S. at 106. The distric t court properly dismissed Mr. Whitehead’s Eighth Amendmen t deliberate indifference claim against Monk. The complaint also alleges that defendant Pascale violated Mr. Whitehead’s Eighth Amendment rights by inad equately responding to Mr. White head’s grievances. Specifically, he clai ms Pascale’s responses to his grievances allowed Monk’s actions to continue, and also caused unidentified nurses to fail to provide Mr. Whitehead his medications . This claim fails as well. A § 1983 “plaintiff must show the defendant personally particip ated in the alleged violation.” Jenkins v. Wood , 81 F.3d 988, 994 (10t h Cir. 1996). And, the “denial of a grievance, by itse lf without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983.” Gallagher v. Shelton , 587 F.3d 1063, 1069 ( 10th Cir. 2009). Here, because Mr. Whitehead complains only that Pascale denied his gr ievance, his claim is without merit. In this circuit, the mere denial of a grievance without any factual basis supporting an affirmative link between the denial and the alleged constitutional violation is fatal t o a § 1983 claim. Id. Accordingly, the distr ict court properly dismissed the Eighth Amendmen t claims against Pascale.12 Mr. Whitehead abandons on appeal h is Eighth Amendment claims ag ainst other defendants by failing to pre sent those arguments in his o pening brief. See COPE v. Kan. State Bd. of Educ. , 821 F.3d 1215, 1223 (10t h Cir. 2016) (“Appellants do not raise this argument in t heir opening brie f, and so it is waived.”).
4. Strip Searches Before Family Visits The complaint also alleges tha t the prison policy requiring inm ates to submit to strip searches befor e family visits violates the Fourth Amen dment. 8 “The Fourth Amendment prohibits only unreasonable searches.” Bell v. Wolfish , 441 U.S. 520, 558 (1979). “Cour ts must consider the sc ope of the particular intrusion, the manner in which it is conducted, the jus tification for initiating it, and the place in which it is conducted.” Id. at 559. With respect to the scope of the search, “[t]here can be no doubt that a strip search is an invasion of personal rights of the first magnitude.” Chapman v. Nichols , 989 F.2d 393, 395 (10th Cir. 1993). However, “correctional officials must be permitted to d evise reasonable search policie s to detect and deter the possession of contraband in the ir facilities,” and “[t]he t ask of determining whether a policy is reasonably related to legitimate security i nterests is peculiarly

8 Mr. Whitehead suggests in his a ppellate briefing that this cla im could be construed as alleging an Eighth Amendment violation, and the di strict court should have evaluated it as such. Alt hough courts constr ue a pro se l itigant’s arguments liberally, “this rule of liberal construc tion stops . . . at th e point at which [the court] begin[s] to serve as his advocate.” United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). Therefore, be cause this claim was not raised in the district court, we do not consider it. See McDonald v. Kinder-Morgan, Inc. , 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent extr aordinary circumstances, we wil l not consider arguments raised for the fi rst time on appeal.”).13 within the province and professi onal expertise of corrections o fficials.” Florence v. Bd. of Chosen Freeholders of Cty. of Burlington , 566 U.S. 318, 328 (2012) (internal quotation marks omitted). Mr. Whitehead failed to meet his burden with regard to this cla im. In his brief, Mr. Whitehead acknowledges the legitimate penological interests for policies that require inmate strip searches fo llowing visits but alleges that pre-visit strip searches are unreasonable. He does not, however, allege any facts to su pport this assertion. Because Mr. Whitehead did not “pl ead facts from which a plausib le inference can be drawn that the action was not rea sonably related to a legitimat e penological interest,”
Gee , 627 F.3d at 1188, the district c ourt correctly determined tha t this allegation failed to state a vali d claim for relief.
5. Sales Taxes Levied on Commissary Purchases The complaint alleges that Keefe charges sales tax on commissar y purchases at OCPF, while inmates at other pris ons are not charged sales tax. 9 Mr. Whitehead asserts that Keefe treats him a nd other sex offenders, a politi cally unpopular group, less favorably than other prisone rs. He argues this disparity in treatment is a violation of the Equal Protection Clause. Before we may consider the merit s of this claim, we must determ ine the threshold matter of subj ect-matter jurisdiction. See Steel Co. v. C itizens for a Better

9 As part of this claim, Mr. White head alleges that some of the prison-official defendants promoted a nefarious c ulture that allowed others to harass inmates. This allegation is too concluso ry to state a claim. See Iqbal , 556 U.S. at 678.14 Env’t , 523 U.S. 83, 94 (1998) (stati ng courts cannot proceed in the absence of subject-matter jurisdiction). To invoke jurisdi ction under § 1 983, Mr. Whitehead must allege conduct under color of state law. Whether a defend ant was a state actor for § 1983 purposes “is a quest ion of law that we review de novo .” Nieto v. Kapoor , 268 F.3d 1208, 1215 ( 10th Cir. 2001). We conclude that the com plaint failed to provide sufficient factual matter to allege that Keefe was a st ate actor; therefore, the federal courts lack juri sdiction over this claim. To establish that the conduct at issue constituted state action , Mr. Whitehead was required to show (1) the dep rivation was “caused by the exe rcise of some right or privilege created by the State orby a rule of conduct imposed by the [S]tate or by a person for whom the State is resp onsible,” and (2) the party co mmitting the deprivation is “a person who may fairly be said to be a state a ctor.” Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937 (1982). Mr. Whitehead’s complaint alleges that “Keefe has a contract wi th OCPF (MTC) to provide commissary item s to inmates held there,” as we ll as to provide commissary items at other pris ons. R. at 26. The complaint fu rther alleges that Keefe taxes commissary items at OCPF, but not at other prisons. Id. at 66. It also asserts: “At all times material hereto Keefe and its officers, employees and agents acted under color of law and with in the scope of their employme nt.” Id. at 26. The allegation that Keefe provi ded commissary services under a contract with MTC does not state a claim that Keefe acted under color of stat e law. See Gallagher v. “Neil Young Freedom Concert , ” 49 F.3d 1442, 1448 (10th Cir. 1995) (“[T]he fact15 that a private entity contracts with the government or receives governmental funds or other kinds of governmental assis tance does not automatically t ransform the conduct of that entity into state action. ”). Moreover, the general all egations that Keefe and its employees acted under color of sta te law are “naked assertions devoid of further factual enhancement,” and, there fore, insufficient to state a c laim for relief, Iqbal , 556 U.S. at 678 (brackets and in ternal quotation marks omitted)

. Mr. Whitehead’s allegations are i nsufficient to establish subje ct-matter jurisdiction over this claim. T herefore, we affirm the distric t court’s dismissal, but remand with directions to specify that the dismissal of this cl aim is without prejudice to its refiling. See Brereton v. Bountiful City Corp. , 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack o f jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the ac tion, is incapable of reaching a disposition on the meri ts of the underlying claims.” ). Mr. Whitehead further argues that Keefe violated the Commerce C lause by charging him sales tax on commissary purchases. 10 The federal courts lack jurisdiction to address the Comm erce Clause claim because, as w ith the equal-

10 In his appellate brief, Mr. Whi tehead briefly mentions that he had asked the district court to consider his c laim against Keefe under 42 U.S .C. § 1985. The argument on this point in his re ply brief is similarly undevelo ped. See Aplt. Reply Br. at 19 (arguing “that for purposes of bringing a claim under [§ 1985], Mr. Whitehead has plead [si c] class-based animus ”). “This is inade quate appellate argument.” Simpson v. T.D. Williamson Inc. , 414 F.3d 1203, 1206 n.4 (10th Cir. 2005) (holding appellate argument inadequate where party had “n ot cited a single authority to support its argumen ts” or “argued that its positio ns [were] sound despite a lack of supporting authority o r in the face of contrary autho rity”). Therefore, we do not consider this claim. See id.16 protection claim, Mr. Whitehead’s allegations are insufficient to establish subjectmatter jurisdiction over this c laim. Although alleged state vi olations of the Commerce Clause may be challenge d by suits brought under § 1983 , Dennis v. Higgins , 498 U.S. 439, 447, 451 (1991), Mr . Whitehead has failed to su fficiently allege that Keefe was a state actor. And as with the equal-pro tection claim, we remand this claim with directions to specify that the dismissal on an alternative, jurisdictional basis, is without prejudice to its refiling.
6. Claims Against Prison-Official D efendants in Their Official and Personal Capacities The complaint named the individua l prison-official defendants i n their official and personal capacities . “When a state off icial is sued in his or her official capacity, the Eleventh Amendment bars ret rospective relief , usually in th e form of money damages, because any such judgment is deemed directed at the st ate as the real party in interest rather than the nominal officer.” Muscogee (Creek) Na tion v. Okla. Tax
Comm’n , 611 F.3d 1222, 1233 (10th Cir. 2010). Even so, injunctive relief may be available against a defendant in his or her official capacity. See Branson Sch. Dist . RE-82 v. Romer , 161 F.3d 619, 631 (10th Cir. 1998) (“[A] suit agai nst a state official in his or her official capacity seeking prospective injunctive relief is not . . . a suit again st the state for Eleventh Amendment purposes.”). But while Mr. Whitehead requested injun ctive relief in the district court, he did not argue this point in his opening brie f. Therefore, this claim is17 waived. See COPE , 821 F.3d at 1223 (“Appellants do not raise this argument in t heir opening brief, and so it is waived.”). On appeal, Mr. Whitehead challenge s the dismissal of his person al-capacity claims against prison- official defendants Marcantel, Phillips, and Cruz. The complaint alleges that (1) defe ndant Marcantel was “responsible for the overall operation of the department incl uding overseeing and implementi ng [prison] policy,” R. at 19; (2) defendant Phillips “was responsible for handling grievance appeals” and for “ensur[ing] that st ate inmates had an opportunity to be hea rd,” id. at 23; and (3) defendant Cruz “was responsi ble for making sure MTC and its employees . . . met the requirements of its contract with the state and that state policy was enforced,” id. These allegations fail to state a claim for several reasons. F irst, to the extent they allege liability based on s upervisor status, “supervisor s tatus by itself is insufficient to s upport liability,” Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir. 1996). Second, they do not allege t hat any of these defendants personally participated in a violation of M r. Whitehead’s constitutional r ights. See Jenkins , 81 F.3d at 994 (stating that a § 1983 “plaintiff must show the defendant personally participated in the alleged viol ation”). Finally, the allegati ons are “mere conclusory statements,” insufficient to state a claim for relief. Iqbal , 556 U.S. at 678.
7. Claims Against Otero County Board of County Commissioners The complaint alleges that Otero County “failed to properly cre ate, adopt and inculcate or simply adhere to a ppropriate policie s and procedur es . . . ; failed to properly train, monitor, supervis e and discipline [various pris on staff members] or18 supervisory personnel[;] . . . and failed to otherwise institut e adequate procedures and policies that would protect the r ights of plaintiff.” R. at 57 , 64–65, 69. Thus, Mr. Whitehead alleges th at Otero County “maintained a custom orpolicy which permitted or condoned the . . . v iolations of Plaintiff’s Const itutional rights.” Id. at 57, 65, 69. The district court di smissed the clai ms against Ot ero County because: (1) claims based on a respondeat superior theory cannot suppor t a § 1983 claim; (2) the complaint failed to id entify any Otero County policy, c ustom, or other practice; and (3) Mr. Whitehead’s generali zed allegations that Otero County allowed a nefarious culture to exist at t he prison were factually insuf ficient to state a claim. Mr. Whitehead did not challenge t he dismissal of the claims aga inst Otero County in his opening brief on a ppeal, but raised them in respo nse to Otero County’s brief. “Arguments not clearly m ade in a party’s opening brief are deemed waived.”
Toevs v. Reid , 685 F.3d 903, 911 (10th Cir. 2012). Accordingly, this argume nt is waived and we do not address it. 11

11 “It is not sufficient to merely mention an issue in a reply br ief.” Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 ( 10th Cir. 1997). “[T]he reasons for [this] rule are two -fold: ‘First, to allow an appel lant to raise new arguments at this juncture would be manifestly unfair to the ap pellee who, under our rules, has no opport unity for a written re sponse . . . . Secon dly, it would also be unfair to the court itself, which , without the benefit of a res ponse from appellee to an appellant’s late-blooming argumen t, would run the risk of an im provident or ill-advised opinion, given our dep endence as an Article III cou rt on the adversarial process for sharpening the issues for decision.’” Hill v. Kemp , 478 F.3d 1236, 1251 (10th Cir. 2007) (quoting Headrick v. Rockwell Int’l Corp. , 24 F.3d 1272, 1278 (10th Cir. 1994)).19 8. Grievance Procedure The complaint asserts that some of the prison-official defenda nts 12 violated the rights of prisoners by thwarti ng and frustrating their attempts to resolve prison grievances. 13 But Mr. Whitehead cannot sue on behalf of other inmates. “A litigant may bring his own clai ms to federal court without counsel, but not the claims of others.” Fymbo v. State Farm Fire & Cas. Co. , 213 F.3d 1320, 1321 (1 0th Cir. 2000) (citing 28 U.S.C. § 1654). There fore, we affirm the dismissal of this claim.
IV. DISMISSAL OF CLAIMS AGAINST DEFENDANT EASON Mr. Whitehead challenges the dist rict court’s grant of defendan t Eason’s motion to dismiss for insufficien t process and insufficient ser vice of process, pursuant to Fed. R. Civ. P. 12(b)(4 ) & (5). The district court held Mr. Whitehead’s attempt to serve Eason, a former MTC employee, by serving the l aw firm representing other MTC employees w as insufficient. Notably, Mr . Whitehead had earlier filed a motion seeking Ea son’s address so she could be served. Cf. Martinez
v. Winner , 771 F.2d 424, 442 (10th Cir . 1985) (remanding to allow discov ery so plaintiff could identify the part icular FBI agents who he belie ved violated his rights),

12 Mr. Whitehead names the followi ng prison-official defendants w ith regard to this claim: Eason, Boyd, Smi th, Frawner, Phillips, Cruz, an d Marcantel.

13 Mr. Whitehead acknowledges that he was able to exhaust the gri evance procedure for his claims. He fu rther acknowledges that he was not denied access to the court for failure to exha ust the grievance process. Cf. Jones v. Bock , 549 U.S. 199, 211 (2007) (stati ng prison grievance pr ocedures must be ex hausted before claims may be bro ught in court).20 vacated on other grounds s ub nom. Tyus v. Martinez , 475 U.S. 1138 (1986); see also Valentin v. Dinkins , 121 F.3d 72, 75–76 (2 d Cir. 1997) (recogni zing district court ’s obligation to allow pro se plain tiff limited discovery to ident ify defendant for service of process). A magistrate judge addressed the motion, stating that if the complaint survived initial scr eening under 28 U.S.C . §§ 1915(e)(2) and 19 15A, “the Court will issue and serve all pr ocess as provided in § 1915(d).” Dist. C t. docket 73, at 2. 14 Neither the magistrate judge northe district court, however, e valuated whether Mr. Whitehead’s claims against Ea son survived initial screening

. We affirm the dismissal, albeit for reasons other than those st ated by the district court. See Safe Streets All. v. Hickenlooper , 859 F.3d 865, 878–79 (10th Cir. 2017) (appellate court may affirm the district court’s “ruling on any grounds adequately supported by the reco rd, even grounds not relied upo n by the district court” (internal quotation mark s omitted)). The complaint incl uded only one claim against Eason, namely that she t hwarted and frustrated inmates’ attempts to resolve prison grievances. Given that we reject this argument with res pect to other defendants in this orde r and judgment, a re mand for the distric t court to evaluate the claim under §§ 1915(e)(2) a nd 1915A would be futile. See Comm. for First Amendment v. Campbell , 962 F.2d 1517, 1525 (10th Ci r. 1992) (“Courts are not

14 Neither party included this doc ument in the record on appeal. We “exercise our discretion to take judicial notice of publicly-filed record s in our court and certain other courts concerning matters t hat bear directly upon the dis position of the case at hand.” United States v. Ahidley , 486 F.3d 1184, 1192 n. 5 (10th Cir. 2007).21 required to remand in futility . . . .”). Accordingly, we affi rm the district court’s dismissal of Mr. Whitehead ’s claim against Eason.
V. DENIAL OF LEAVE TO AMEND THE COMPLAINT AND TO SUPPLEMENT THE PLEADINGS Mr. Whitehead filed a motion for leave to amend th e complaint a nd a later motion to supplement the pleadi ngs. The district court summari ly denied both motions as moot based on the di strict court’s dismissal of all federal claims. Generally, we review both rulings for an abuse of discretion. Cohen v. Longshore , 621 F.3d 1311, 1313 ( 10th Cir. 2010) (leave to amend the compla int); Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir . 2001) (leave to supplement the pleadings). However, we revi ew legal conclusions, such as mootness, de novo

. Ghailani v. Sessions , 859 F.3d 1295, 1300 (10th Ci r. 2017) (“We review mootness de novo as a legal question.” ( internal quotation marks omitte d)). Mr. Whitehead sought to amend his complaint to add unspecified exhibits, expand on his equal-protection cl aim, and expand on his First A mendment retaliatory transfer claim. The motion to a mend asserts that Mr. Whitehead had been “transferred for bringing this suit.” R. at 5 16. Similarly, t he motion to supplement the pleadings asserts that defe ndant Martinez retaliated agains t Mr. Whitehead for filing the underlying lawsuit a nd for filing grievances by tran sferring him to another prison facility. Mr. Whitehead a lleges the transfer violated h is First, Fifth, and Fourteenth Amendment rights.22 The retaliatory transfer claim Mr. Whitehead sought to add to h is suit may be a proper claim for relief

. 15 This claim was not dependenton the claims dismissed by the district court. Accordingly , Mr. Whitehead’s motions to ex pand his retaliatory transfer claim did not become m oot when the district court dism issed Mr. Whitehead’s remaining claims. 16 Further, the district court de nied both motions without an “app arent or declared reason” suc h as “undue delay, bad faith or dilatory mo tive on the part of the movant, repeated failure to cure deficiencies by amendments pre viously allowed, undue prejudice to the opposing pa rty by virtue of allowance of the amendment, [or] futility of amendment.” Foman v. Davis , 371 U.S. 178, 182 ( 1962). Indeed, the district court’s denial of these motions based on a faulty lega l conclusion is akin to an “outright refusal to grant leave.” Id. Such a refusal cons titutes an abuse of discretion. Id. We thus conclude that the dist rict court abused its discretio n when it denied these motions. Accordingl y, we reverse and remand the d enial of Mr. Whitehead’s motion to amend the complaint and his motion to supplement the

15 For example, prison officials ma y violate a prisoner’s First A mendment rights when they transfer the pri soner because the prisoner exe rcised those rights. Frazier v. Dubois , 922 F.2d 560, 561–62 ( 10th Cir. 1990) (“[W]hile a prisoner en joys no constitutional right to remain in a particular institution a nd generally is not entitled to due process protections prior to such a transfer, p rison officials do not have the discretion to punish an inmate for exercising his firs t amendment rights by transferring him to a different institution.” (internal quotati on marks omitted)).

16 Mr. Whitehead’s request to e xpand on his equal-protection clai m did not provide any additional facts or e xplain how he intended to supp lement this claim. Thus, we conclude that the dist rict court did not err in denyin g Mr. Whitehead leave to expand on his equal-protection claim or to add unspecified e xhibits.23 pleadings to the district court for evaluation consistent with this order and judgment. On remand, the district court ma y consider whether other ground s exist for denying these motions.
VI. CONCLUSION We vacate the district court’s di smissal of the First Amendment claims relating to hardback books, internet acce ss, mailed-in newspaper article s, and materials limited to approved vendors and re verse the district court’s de nial of the motions to amend the complaint and to sup plement the pleadings. We remand these claims for further proceedings consistent w ith this order and judgment. W e also remand the equal-protection and Commerce Clause § 198 3 claims with directi ons to specify that the dismissal of those claims i s without prejudice. The distri ct court’s judgment is affirmed in all other respects.

Entered for the Court

Joel M. Carson, III Circuit Judge