UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BRADLEY KREBS, Plaintiff - Appellant,

v. EL DORADO CORRECTIONAL FACILITY; KANSA S 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; WICHIT A 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, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral FILED United States Court of Appeals Tenth Circuit 

### December 28, 2016
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before HARTZ , MURPHY , and PHILLIPS , Circuit Judges.

________________ _________________ In a pro se complaint, Bradley Krebs sued seve ral Kansas correctional facilities under 42 U.S.C. § 1983. Alt hough he did not identify a specific constitutional violation, Krebs broadly allege d that understaffing and lack of audioand video-recording equipment at Kansas correctional facil ities had risked physical abuse to prisoners. But we conclude that Krebs’s claims agai nst the correctional facilities must fail b ecause State agencies (including correctional fac ilities) 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 compla int as asserting official-capacity claims ag ainst the wardens of the fa cilities, Krebs’s amended complaint still would fa il 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 Kreb s’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 Fac ility 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 wh at 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 am ended complaint, he sued additional correctional fa cilities 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 ma ke this showing. To avoid dismissal, Krebs requested that the dist rict court construe the corr ectional 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 re sponse, the district cour t dismissed his amended complaint without prejudice. The district court concluded that even broadly construing his amended complaint as asserti ng claims against the wardens, Krebs still failed to state a cl aim 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 additi onal facilities as defendants and making a barren request to include an unstated class-action claim.

3 The magistrate judge also required Kr ebs 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 wa rden had violated his rights. DISCUSSION Because Krebs appears pro se, “we c onstrue his pleadings liberally.” Ledbetter v. City of Topeka , 318 F.3d 1183, 1187 (10th Cir. 200 3). In doing so, we are more lenient about deficient plead ings, failure to cite appr opriate legal authority, and confusion of legal theories. See Garrett v. Selby Co nnor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). But we “cannot ta ke on the responsibility of serving as the litigant’s attorney in constructing arguments a nd searching the record.” Id. And we will not “supply additional fact ual 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 cl aim that the district court erred in concluding that he is not entitled to bring a claim under se ction 1983 against the wardens in their official capacity. Inst ead, Krebs restates his claims th at he has been mistreated by prison officials and that more r ecording equipment is needed. We agree with the district court that Krebs’s amended complaint fail s to state a plausible claim. “Section 19 83 provides a federal forum to remedy many deprivations of civil liberties, but it doe s not provide a federal foru m for litigants who seek a remedy against a State for alleged depriva tions of civil liberties. The Eleventh Amendment bars such suits unless th e State has waived its immunity.” Will , 491 U.S. at 66. Krebs asserts claims ag ainst fifteen State correctiona l facilities. But States and5 their agencies are not persons s ubject to suit under section 1983. Id. at 64. So Krebs fails to assert a plau sible 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 unde r section 1983. Id. at 71. Obviously, state officials literally ar e persons. But a suit against a state official in his or her offi cial capacity is not a su it against the official but rather is a suit against the official’s office . . . . As such, it is no different from a suit agai nst the State itself. Id . Because state offici als cannot be sued in their of ficial capacities under section 1983, Krebs’s amended complaint—even br oadly construed—fails to state a claim for relief. 4 For these reasons, we affirm the district court’s dism issal of Krebs’s amended complaint. Krebs’s motion for leave to proceed without prep ayment of costs and fees is denied. Krebs is ordered to im mediately pay any unpaid balances.

Entered for the Court
Gregory A. Phillips Circuit Judge

4 We cannot construe Kreb s’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 Kreb s new factual allegations or construct new legal theories for him. Whitney , 113 F.3d at 1173–74.