UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BRADLEY KREBS, 

 Plaintiff - Appellant, 

v. 

EL DORADO CORRECTIONAL 

FACILITY; KANSAS DEPARTMENT 

OF CORRECTIONS; ELLSWORTH 

CORRECTIONAL FACILITY; 

HUTCHINSON CORRECTIONAL 

FACILITY; KANSAS JUVENILE 

CORRECTIONAL COMPLEX; 

LANSING CORRECTIONAL FACILITY; 

LARNED CORRECTIONAL MENTAL 

HEALTH FACILITY; LARNED 

JUVENILE CORRECTIONAL 

FACILITY; NORTON CORRECTIONAL 

FACILITY; TOPEKA CORRECTIONAL 

FACILITY; WICHITA WORK RELEASE 

FACILITY; WINFIELD 

CORRECTIONAL FACILITY; KANSAS 

CORRECTIONAL INDUSTRIES; 

STOCKTON CORRECTIONAL 

CENTER; OSWEGO CORRECTIONAL 

FACILITY, 

 Defendants - Appellees. 

No. 16-3054 

(D.C. No. 5:15-CV-03050-SAC-DJW) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

 *

 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 

FILED 

United States Court of Appeals

Tenth Circuit 

December 28, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges. 

_________________________________ 

In a pro se complaint, Bradley Krebs sued several Kansas correctional 

facilities under 42 U.S.C. § 1983. Although he did not identify a specific 

constitutional violation, Krebs broadly alleged that understaffing and lack of audioand video-recording equipment at Kansas correctional facilities had risked physical 

abuse to prisoners. But we conclude that Krebs’s claims against the correctional 

facilities must fail because State agencies (including correctional facilities) are not 

persons under section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 

(1989).1

 And even if we construed Krebs’s later amended complaint as asserting 

official-capacity claims against the wardens of the facilities, Krebs’s amended 

complaint still would fail to state a claim. See id. at 71 (state officials acting in their 

official capacities are not persons under section 1983). So we affirm the district 

court’s dismissal of Krebs’s amended complaint. 

BACKGROUND 

While incarcerated at El Dorado Correctional Facility, Krebs filed a complaint 

asserting claims under 42 U.S.C. § 1983. Krebs broadly alleged that security lapses at 

El Dorado Correctional Facility and other facilities had placed him and other 

prisoners at risk. He claimed that understaffing at El Dorado Correctional Facility 

 

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

 In his complaint, Krebs asserts that the defendants “are State Correctional 

entities operating under orders of laws of the State of Kansas.” R. vol. 1 at 4. 
3 

had led to “safety and security practices . . . less than what they should be.” R. vol. 1 

at 5. Krebs also asserted that he and other prisoners “have been left in situations of 

risk of physical harm, and [he] and others have also been physically harmed in unjust 

fashions that could have been prevented.” Id. at 6. In Krebs’s amended complaint, he 

sued additional correctional facilities and requested that the case “be changed to a 

class action.”2 Id. at 16. 

The magistrate judge entered a detailed order instructing Krebs to show why 

the district court should not dismiss his amended complaint for failure to state a 

claim.3

 The order gave Krebs twenty days to make this showing. To avoid dismissal, 

Krebs requested that the district court construe the correctional facilities mentioned 

in the amended complaint to include the “superior employees of those entities,” such 

as the “wardens.” Id. at 31. And Krebs reiterated his general allegations of deficient 

security practices and equipment.

After reviewing Krebs’s response, the district court dismissed his amended 

complaint without prejudice. The district court concluded that even broadly 

construing his amended complaint as asserting claims against the wardens, Krebs still 

failed to state a claim because the wardens would be sued only in their official 

 2

 Although Krebs calls this document an Amended Complaint, it is a two-page 

addition to the Complaint, naming additional facilities as defendants and making a 

barren request to include an unstated class-action claim. 

3

 The magistrate judge also required Krebs to submit proof of payment of his 

initial filing fee of $1.00. 
4 

capacities. Id. at 39. In addition, the district court noted that Krebs’s amended 

complaint failed even to allege how or when any warden had violated his rights. 

DISCUSSION 

Because Krebs appears pro se, “we construe his pleadings liberally.” Ledbetter 

v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). In doing so, we are more 

lenient about deficient pleadings, 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 we “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). 

On appeal Krebs doesn’t claim that the district court erred in concluding that 

he is not entitled to bring a claim under section 1983 against the wardens in their 

official capacity. Instead, Krebs restates his claims that he has been mistreated by 

prison officials and that more recording equipment is needed. 

We agree with the district court that Krebs’s amended complaint fails to state a 

plausible claim. “Section 1983 provides a federal forum to remedy many deprivations 

of civil liberties, but it does not provide a federal forum for litigants who seek a 

remedy against a State for alleged deprivations of civil liberties. The Eleventh 

Amendment bars such suits unless the State has waived its immunity.” Will, 491 U.S. 

at 66. Krebs asserts claims against fifteen State correctional facilities. But States and 
5 

their agencies are not persons subject to suit under section 1983. Id. at 64. So Krebs 

fails to assert a plausible claim against the correctional facilities. 

Krebs requests that we broadly construe his amended complaint as asserting 

claims against the wardens of the correctional facilities. But state officials acting in 

their official capacities are not persons under section 1983. Id. at 71. 

Obviously, state officials literally are persons. But a suit against a state 

official in his or her official capacity is not a suit against the official but 

rather is a suit against the official’s office . . . . As such, it is no 

different from a suit against the State itself. 

Id. Because state officials cannot be sued in their official capacities under section 

1983, Krebs’s amended complaint—even broadly construed—fails to state a claim 

for relief.4

 

For these reasons, we affirm the district court’s dismissal of Krebs’s amended 

complaint. Krebs’s motion for leave to proceed without prepayment of costs and fees 

is denied. Krebs is ordered to immediately pay any unpaid balances. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

 4

 We cannot construe Krebs’s amended complaint so broadly as to assert 

claims against individual defendants in their individual capacities. Among other 

deficiencies, Krebs has not alleged that any individual deprived him of his 

constitutional rights. We cannot furnish Krebs new factual allegations or construct 

new legal theories for him. Whitney, 113 F.3d at 1173–74.