FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 13, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court




    JAMES THOMAS MURPHY,

                Plaintiff-Appellant,

    v.                                                 No. 07-3337
                                              (D.C. No. 5:07-CV-03074-SAC)
    PHILLIP D. HYLTON, M.D., Chief of                    (D. Kan.)
    Neurosurgery, North Kansas City
    Hospital, in his individual capacity;
    JOHN DOE, Compliance Officer,
    North Kansas City Hospital, in his
    individual capacity; NORTH KANSAS
    CITY HOSPITAL, in its individual
    capacity; DAVID CARPENTER, Chief
    Executive Officer of North Kansas
    City Hospital, in his individual
    capacity,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before McCONNELL and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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 estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      James Thomas Murphy, pro se, appeals the dismissal of his action brought

under 42 U.S.C. §§ 1981, 1983, and Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 

(1971), in which he claimed damages

for defendants’ alleged deliberate indifference to his medical needs. The district

court dismissed the case under 28 U.S.C. § 1915A(b)(1) for failure to state a

claim for relief. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I

      Mr. Murphy is an inmate at the United States Disciplinary Barracks at

Ft. Leavenworth, Kansas (USDB). In December 2005, he underwent an MRI

exam because he suffered from chronic neck pain and numbness on the right side

of his body. The following month, he was referred to Dr. Phillip Hylton, Chief of

Neurosurgery at North Kansas City Hospital (NKCH), for a physical and

diagnosis. During the appointment, Dr. Hylton advised Mr. Murphy that he had a

protruding disc at the C3 and C4 vertebrae that was pressing against his spinal

cord, and a protruding disc at the C5 and C6 vertebrae. Dr. Hylton recommended

surgery, stating, “‘we can leave it like this and eventually you will end [up] in a

wheelchair since the symptoms have progressed[,] or we could operate to remove

the disc.’” R., Vol. 2, Doc. 28, Attach. 1 (Proposed Second Am. Compl.) at 5.

      At some point during the exam, Dr. Hylton inquired why Mr. Murphy was

in prison. Mr. Murphy had been escorted to the appointment by three military

guards, one of whom was armed. Mr. Murphy declined to answer the question,

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and Dr. Hylton continued his diagnosis, after which Mr. Murphy decided to have

the surgery. Several days later, however, he received a report from Dr. Hylton

indicating that “[t]he patient did not respond with the reason for his incarceration

upon questioning.” 

This report prompted personnel from USDB to

contact NKCH to schedule the surgery. The hospital would not confirm a date,

and by the end of March 2006, still without a date, staff at USDB again contacted

NKCH. This time they learned that Dr. Hylton would not perform the surgery

unless Mr. Murphy disclosed why he was in prison.

      Mr. Murphy consulted a physician’s assistant at USDB’s health clinic,

Mitchell Poppe, who advised him not to reveal the information because he risked

the consequences of potential prejudices Dr. Hylton might have against certain

offenses. Dr. Hylton denied this accusation, explaining that he was simply

concerned for the safety of his staff and uncertain how Mr. Murphy would

respond to anesthesia. Nevertheless, Mr. Murphy refused to disclose the

information, Dr. Hylton refused to yield, and Mr. Murphy was forced to seek

treatment elsewhere. After obtaining referrals to two other doctors, he finally

underwent surgery in October 2006.

      On March 20, 2007, Mr. Murphy filed suit against Dr. Hylton, NKCH, the

hospital’s compliance officer, and its chief executive officer, all in their

individual capacities. Asserting jurisdiction under 28 U.S.C. § 1331, he alleged

under Bivens that the defendants’ deliberate indifference to his medical needs

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violated his Eighth Amendment right to be free from cruel and unusual

punishment. He also requested that the court appoint counsel.

      Pursuant to 28 U.S.C. § 1915A, the district court undertook preliminary

screening of the case. On April 23, 2007, the court denied Mr. Murphy’s request

for counsel, but granted his request to amend his complaint to substitute the

correct chief executive officer of NKCH as a defendant. The court then found

that the amended complaint failed to allege a basis for jurisdiction under § 1331,

or state a viable Bivens claim. Consequently, the court ordered Mr. Murphy to

show cause, within thirty days, why the amended complaint should not be

dismissed.

      On May 29, 2007, the district court received Mr. Murphy’s response to the

show cause order, which sought to amend the complaint a second time.

Notwithstanding the court’s conclusion that the response was untimely, it

proceeded to consider the second amended complaint and held that it still failed to

state any cognizable claim for relief. Hence, the court dismissed the case. On

appeal, Mr. Murphy argues that he sufficiently alleged an Eighth Amendment

claim for deliberate indifference and the court abused its discretion in refusing to

appoint counsel. 1


1
      Mr. Murphy also argues that his response was timely under the prison
mailbox rule. Given our consideration of the proposed second amended
complaint, we do not reach the merits of this issue because it does not affect the
outcome of the case. See Griffin v. Davies, 

, 554 (10th Cir. 1991).

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                                         II

      Dismissal for failure to state a claim is a legal question we review de novo.

See McBride v. Deer, 

, 1289 (10th Cir. 2001). We review the

dismissal for failure to state a claim “for plausibility in the complaint,” Alvarado

v. KOB-TV, L.L.C., 

, 1215 (10th Cir. 2007) (citation omitted),

which we read in the light most favorable to the plaintiff. We accept all

well-pleaded, material allegations as true, see Estelle v. Gamble, 

, 99

(1976), mindful that a pro se complaint is to be liberally construed and held to a

less stringent standard than formal pleadings drafted by lawyers, Erickson v.

Pardus, – U.S. – , 

, 2200 (2007).

      Initially, we note that absent from Mr. Murphy’s opening brief are any

arguments against NKCH, its compliance officer, or its chief executive officer.

Any argument he might have raised against these defendants is consequently

waived. See Gaines-Tabb v. ICI Explosives, USA, Inc., 

, 624

(10th Cir. 1998) (“[A]rguments not set forth fully in the opening brief are

waived.”).

      We also note that in his proposed second amended complaint, Mr. Murphy

described his action as arising under §§ 1981 and 1983 rather than under Bivens.

However, his admission that Dr. Hylton “is not a state actor,” R., Vol. 2, Doc. 28,

Attach. 1 (Proposed Second Am. Compl.) at 2, defeats any such claims. See

Davis-Warren Auctioneers, J.V. v. FDIC, 

, 1161 (10th Cir. 2000)

                                         -5-
(recognizing that state action is a prerequisite to bringing a § 1981 claim); Scott

v. Hern, 

, 906 (10th Cir. 2000) (recognizing that state action is a

prerequisite to bringing a § 1983 claim).

      We are thus left to consider whether Mr. Murphy’s proposed second

amended complaint states a Bivens claim. Bivens recognized that a plaintiff can

recover from an individual federal agent for constitutional violations committed

while “acting under color of his 

; see also Carlson v.

Green, 

(1980) (extending Bivens-type claims to violations of the

Eighth Amendment’s cruel and unusual punishment clause). However, “[t]o state

a Bivens action, [a] plaintiff must allege circumstances sufficient to characterize

defendants as federal actors.” Romero v. Peterson, 

, 1506

(10th Cir. 1991). And on this score, the proposed second amended complaint

contains no allegations to support the contention that Dr. Hylton was a federal

actor; instead, it states only that Mr. Murphy saw Dr. Hylton “on an outside

medical appointment,” R., Vol. 2, Doc. 28, Attach. 1 (Proposed Second

Am. Compl.) at 3, and that Dr. Hylton “is not a state actor, prison employee, [or]

federal or military employee,” 

Based on these allegations, it is simply

implausible that Mr. Murphy is entitled to relief because there is no indication

that Dr. Hylton is a federal actor. A plaintiff must frame his “complaint with

enough factual matter (taken as true) to suggest that he . . . is entitled to relief.

Factual allegations must be enough to raise a right to relief above the speculative

                                            -6-
level.” Robbins v. Oklahoma, 

, 1247 (10th Cir. 2008) (quotations

and citations omitted). Read liberally and for plausibility, the most that can be

said of Mr. Murphy’s allegations is that Dr. Hylton was a private physician

operating under contract with USDB. But this reading would be purely

speculative, and even assuming that Dr. Hylton was a federal contractor, we have

previously declined to find federal action based solely on the existence of a

contractual relationship, see 

. And because Mr. Murphy

fails to allege any other facts tending to show that Dr. Hylton was a federal actor,

he fails to draw the requisite nexus between Dr. Hylton and the federal

government such that we might say that Dr. Hylton’s actions were fairly

attributable to the government. Thus, Mr. Murphy’s Bivens claim fails.

      Finally, the district court’s refusal to appoint counsel was not an abuse of

discretion. See Rucks v. Boergermann, 

, 979 (10th Cir. 1995). The

record, Mr. Murphy’s pleadings, the complexity of the issues, and the manner in

which Mr. Murphy presented them all support the court’s decision. See 

courts should consider when deciding whether to appoint

counsel, including the merits and complexity of the claims, the factual issues




                                         -7-
involved, and the litigant’s ability to present the claims).

      Accordingly, the judgment of the district court is AFFIRMED.

                                                      Entered for the Court


                                                      Michael W. McConnell
                                                      Circuit Judge




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