UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

MYOUN L. SAWYER, Plaintiff - Appellant,

v. SHAWN SULLIVAN; THOMAS KINLEN; RICKY GOULD; LESLEY ADAMS; VERONIQUE A.; MARK K., Defendants - Appellees. No. 13-3331 (D.C. No. 5:13-CV-03201-SAC) (D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

Myoun L. Sawyer, proceeding pro se, app eals the district court’s dismissal of his civil rights action broug ht under 42 U.S.C. § 1983. 1 Mr. Sawyer, who also seeks leave to proceed on appeal without prepayme nt of his appellate costs and fees (IFP),

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 We liberally construe Mr. Sawyer’s pro se materials but do not act as his advocate. See United States v. Pinson , 584 F.3d 972, 97 5 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - was civilly committed at Larned State Hospital when he filed this appeal. 2 In his complaint, Mr. Sawyer allege d that another patie nt at the hospital assaulted him with a padlock that staff members had inadequate ly secured. Mr. Sawyer asserted his Eighth Amendment rights were violated because staff memb ers “were responsible for unlocking the padlock from o ff [a] refrigerator door and allowing the other patient access to the padlock.” Aplt . App., Vol. 1 at 4. On its initial screening review, the distri ct court dismissed th e case, ruling that Mr. Sawyer’s allegations failed to stat e an Eighth Amendment claim. The court explained that an Eighth Amendment claim must satisfy both objective and subjective components: the objective el ement requires a sufficiently serious deprivation, while the subjective component requires the defendant-official to “be

‘aware of facts from which th e inference could be drawn th at a substantial risk of serious harm exists[,] and . . . also draw the inference.’” Id. at 12 (quoting Farmer v.

Brennan , 511 U.S. 825, 837 (1994)). The dist rict court conclude d that Mr. Sawyer failed to satisfy the subjec tive prong because his allegati ons suggested, at most, mere negligence, which “is insufficient to st ate a claim for relief under § 1983.” Id. at 13 (citing County of Sacramento v. Lewis , 523 U.S. 833, 849 (1998) (“liability for

2 The district court granted Mr. Sawyer IFP status, and on March 6, 2014, we entered a preliminary order asse ssing partial fee payments. At the time he filed this appeal, however, Mr. Sawyer was not a prisoner, so this appeal is not subject to the fee payment provisions of 28 U.S.C. § 1915(b) or the th ree-strikes provision of § 1915(g). See Merryfield v. Jordan , 584 F.3d 923, 927 (10th Cir. 2009). We therefore vacate our March 6, 2014 or der assessing part ial fee payments.- 3 - negligently inflicted harm is categorically beneath the th reshold of constitutional due process”)).

We review the district c ourt’s dismissal de novo, McBride v. Deer , 240 F.3d 1287, 1289 (10th Ci r. 2001), and agree that Mr. Sawyer failed to satisfy the subjective component of his de liberate indifference claim, see Blackmon v. Sutton , 734 F.3d 1237, 1244 (10th Ci r. 2013) (“the defendant-o fficial must know of and disregard an excessive risk to inmate heal th or safety” (interna l quotation marks and brackets omitted)). Mr. Sawy er’s allegations do not indi cate that hospital staff knew of and disregarded any risk of harm; inst ead, they indicate, at most, that staff members were negligent in securing the lock . But as the distri ct court recognized, mere negligence is not enough to es tablish deliberate indifference. See Farmer , 511 U.S. at 835. Accordingly, the district court’s judgment is affirmed . Mr. Sawyer is granted leave to proceed on appeal IFP, and our or der dated March 6, 201 4 assessing partial fee payments is vacated.

Entered for the Court

Monroe G. McKay Circuit Judge