FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  September 26, 2011
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                    TENTH CIRCUIT


 MARCO A. ROCHA,

          Plaintiff - Appellant,
                                                        No. 11-1132
 v.                                          (D.C. No. 10-CV-01272-PAB-KMT)
                                                          (D. Colo.)
 A. ZAVARAS, CDOC Director; RON
 LEYBA, FMCC Warden; LT.
 POTTER, FMCC; SGT. STEVENS,
 FMCC; OTHER UNNAMED
 DEFENDANTS UNDER THEIR
 OFFICIAL AND INDIVIDUAL
 CAPACITIES,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges. **


      Marco Rocha, a state inmate appearing pro se, appeals from the district

court’s Rule 12(b)(6) dismissal of his entire complaint, with prejudice, for failure


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
to state a claim upon which relief can be granted. Rocha v. Zavaras, No. 10-cv-

01272-PAB-KMT, 

(D. Colo. Feb. 28, 2011). Our jurisdiction

arises under 28 U.S.C. § 1291, and we affirm.

      The parties are familiar with the facts, and we need not restate them here.

Briefly, Mr. Rocha alleges that, in June of 2008, he was given a “Low Work

Evaluation” and ultimately placed on “Restricted Privilege” (RP) status in

retaliation for informal complaints he made about kitchen staff. R. 8. He further

alleges that, while on RP status, offenders are restricted to standard recreation

activities, maintained in segregated housing, called last to eat, restricted from

certain purchases from the canteen, prohibited from communicating with other

inmates, and required to wear distinct identifying clothing (specifically, orange

pants, rather than green pants). R. 7-8. Mr. Rocha claims that, due to the

prohibition on communication, he was injured during a work project, requiring

eight stitches and additional bandages. R. 8. Mr. Rocha allegedly filed an initial

grievance five days later regarding the safety of the working conditions, and this

case followed. R. 8.

      Mr. Rocha’s initial complaint sought injunctive relief and damages against

all four Defendants in their official and individual capacities, and contained as

many as five claims: (1) violation of his First Amendment rights by way of

retaliation for his informal complaints and the complete prohibition on his speech




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while on RP status; 1 (2) violation of his Eighth Amendment right by way of two

conditions of confinement, including mental anguish resulting from placement on

RP status and risk of serious physical harm resulting from his working conditions

while on RP status; (3) violation of the Equal Protection Clause by way of class-

based differential treatment and/or “class-of-one” disparate treatment; (4)

violation of the Due Process Clause by way of denial of a hearing prior to

placement on RP status; 2 and (5) violations of Colorado statutes and a Colorado

Department of Corrections administrative regulation. R. 7-21. Defendants filed

motions to dismiss under Rule 12(b)(6), R. 25-37, 58-65, and between those

filings Mr. Rocha sought to amend his complaint by adding the Colorado

Department of Corrections and the Four Mile Correctional Center as named

defendants, and by suing the original defendants in their individual capacities

only. R. 38-57. Defendants argued that such an amendment would be futile, R.

62-65, and Mr. Rocha filed both an Answer to Defendants’ motions to dismiss, R.



      1
         The magistrate judge did not address Mr. Rocha’s claim of infringement
upon his First Amendment right to free speech; however, because Mr. Rocha did
not raise that omission in his objections to the magistrate judge’s
recommendation, R. 92-97, the issue is waived. See Duffield v. Jackson, 

, 1237-38 (10th Cir. 2008). Moreover, Mr. Rocha has not raised the
issue (or its waiver) on appeal, so it alternatively is abandoned. Kokins v.
Teleflex, Inc., 

, 1302 n.6 (10th Cir. 2011).
      2
        Mr. Rocha specifically alleged the Due Process violation against
Defendant Potter alone. R. 13-14. However, in his statement on the Nature of the
Case, Mr. Rocha alleged that all Defendants inappropriately used Low Work
Evaluations as the pretense for placement on RP status without a hearing. R. 7-8.

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66-67, and a Reply regarding his proposed Amended Pleading. R. 68-71. A

magistrate judge recommended dismissal of all of Mr. Rocha’s claims under Rule

12(b)(6) for failure to state a claim upon which relief can be granted, as well as

denial of Mr. Rocha’s request to amend his pleading for futility. R. 73-91. Mr.

Rocha filed timely objections on various grounds, R. 92-97, and the district court

ultimately dismissed all of Mr. Rocha’s claims under Rule 12(b)(6) for failure to

state a claim upon which relief can be granted and denied leave to amend. R. 98-

103. The court entered its final judgment on March 3, 2011. R. 104-05. Mr.

Rocha timely appeals from the district court’s final judgment. R. 106-07.

      Mr. Rocha identifies two issues on appeal, alleging that (1) the lower court

erred “by evaluating [his] claims under post hoc rationale” and advocating as

defendants’ attorney, and (2) the “lower court’s performance under said post hoc

rationale shifts from erroneous review to abdication of function in administration

of justice.” Aplt. Br. 3. He also contends that the district court should have

applied the law identified in his pleadings to support his claimed constitutional

violations.

      The first two issues are one in the same: we find nothing to suggest that the

district court did anything other than discuss various claims generally and

evaluate the defenses raised by defendants. Mr. Rocha tells us on appeal that the

case does not involve claims of deliberate indifference to serious medical needs,

or excessive force, but rather involves retaliation, his status as a protected class of

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one, and deliberate indifference to a substantial risk of serious harm given the

policy which restricts communication between inmates. Aplt. Br. 2. Mr. Rocha

therefore has abandoned the remainder of his original claims. Kokins v. Teleflex,

Inc., 

, 1302 n.6 (10th Cir. 2011).

      Our review of Rule 12(b)(6) dismissal is de novo, and we consider well-

pleaded factual allegations in the light most favorable to the plaintiff. Smith v.

United States, 

, 1098 (10th Cir. 2009). To the extent that Mr.

Rocha both alleged and preserved claims under the First Amendment, Equal

Protection Clause, and/or Eighth Amendment, we find that such claims fail based

on insufficient allegations made in Mr. Rocha’s complaint, and we therefore

affirm.

      First, in the context of First Amendment retaliation claims, a specific test

“applies to retaliation claims in which the defendant ‘is not the plaintiff’s

employer and when there is no contractual relationship between them.’”

Leverington v. City of Colorado Springs, 

, 729 (10th Cir. 2011)

(quoting Worrell v. Henry, 

, 1212 (10th Cir. 2000)). Under that

test, Mr. Rocha must prove: “(1) that [he] was engaged in constitutionally

protected activity; (2) that [each] defendant's actions caused [him] to suffer an

injury that would chill a person of ordinary firmness from continuing to engage in

that activity; and (3) that [each] defendant's adverse action was substantially

motivated as a response to [his] exercise of constitutionally protected conduct.”

                                         -5-


219 F.3d at 1212). Here, Mr. Rocha has failed to allege

facts necessary to support the element that any defendant’s actions “would chill a

person of ordinary firmness from continuing to” file grievances or exercise a

constitutional right. 

219 F.3d at 1212). R. 81-82; 100-01.

Furthermore, Mr. Rocha has failed to allege personal participation by any of the

named Defendants; while Mr. Rocha alleges that a kitchen supervisor and his case

manager retaliated against him for making informal complaints, neither is named

in this suit. R 100-01. Thus, Mr. Rocha has failed to adequately state a

retaliation claim.

      Second, in order to establish a class-of-one equal protection claim, Mr.

Rocha must allege that he “has been intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in

treatment.” Village of Willowbrook v. Olech, 

, 564 (2000) (per

curiam). To do this, Mr. Rocha “must establish that others, ‘similarly situated in

every material respect[,]’ were treated differently.” Kansas Penn Gaming, LLC v.

Collins, No. 10-3002, 

at *4 (10th Cir. Sept. 1, 2011) (quoting

Jicarilla Apache Nation v. Rio Arriba County, 

, 1210 (10th Cir.

2006)). Mr. Rocha “must then show this difference in treatment was without

rational basis, that is, the government action was ‘irrational and abusive’ and

‘wholly unrelated to any legitimate state activity.’” 

Inc. v.

Village of Angel Fire, 

, 849 (10th Cir. 2005)) (citation omitted).

                                          -6-
Whether Mr. Rocha satisfies the second element is irrelevant, as he fails to plead

the first: though he alleges that he was singled out for exercising his

constitutional right(s), Mr. Rocha fails to identify anyone, similarly situated, who

was treated differently. R. 9, 11, 14, 16. Thus, Mr. Rocha has failed to

adequately state a class-of-one equal protection claim.

      Third, while there is no doubt that “[a] prison official’s ‘deliberate

indifference’ to a substantial risk of serious harm to an inmate violates the Eighth

Amendment,” Farmer v. Brennan, 

, 828 (1994), Mr. Rocha’s Eighth

Amendment claim still must satisfy two requirements. “First, the deprivation

alleged must be, objectively, ‘sufficiently serious.’” 

(quoting Wilson v.

Seiter, 

, 298 (1991)). Second, “a prison official must have a

‘sufficiently culpable state of mind.’” 

, 501 U.S. at 298). This

second requirement is subjective, rather than objective: “a prison official cannot

be found liable under the Eighth Amendment for denying an inmate humane

conditions of confinement 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.” 

We will assume that Mr.

Rocha has adequately alleged the first requirement; that inmates at his facility,

himself included, are made to work in potentially dangerous conditions without

the ability to warn others of immediate peril. Even then, Mr. Rocha has failed to

                                         -7-
allege adequately the second requirement: that the named Defendants subjectively

knew of, and disregarded, a risk. Instead, Mr. Rocha simply recites the second

element itself: that the Defendants could have drawn, should have drawn, and did

draw the inference that the conditions of his RP status were unsafe. R. 10, 12, 14,

16. The fact that the Defendants, in Mr. Rocha’s opinion, should have drawn that

inference is irrelevant. 

. Thus, Mr. Rocha has failed to

adequately state a conditions of confinement claim.

      Finally, we note that the district court was correct in denying Mr. Rocha

leave to amend his claim: his proposed additions of the Colorado Department of

Corrections and the Four Mile Correctional Center are barred under the Eleventh

Amendment, see Griess v. Colorado, 

, 1044-45 (10th Cir. 1988),

and his claims against all Defendants in their individual capacities fail for the

reasons explained above. We agree with the district court, in light of the Record,

that Mr. Rocha’s proposed amendments are futile. Fed. R. Civ. P. 15(a); Foman

v. Davis, 

, 182 (1962).

      AFFIRMED. We grant IFP status and remind Mr. Rocha of his obligation

to make partial payments until the filing fee is paid.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge


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