Joel Alan Toney v. Captain Gelardo

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JOEL ALAN TONEY,
Plaintiff - Appellant,
v.
CAPTAIN GELARDO; DEPUTY
CASE; DEPUTY THOMPSON;
DEPUTY SPICER; DEPUTY
BUNNER, DEPUTY LIPON;
PUEBLO COUNTY SHERIFF’S
OFFICE; PUEBLO COUNTY
DETENTION CENTER,
Defendants - Appellees.
No. 22-1036
(D.C. No. 1:21-CV-02428-LTB-GPG)
(D. Colo.)
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ORDER AND JUDGMENT*
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Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
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Mr. Joel Toney is an inmate who sued prison officials under 42
U.S.C. § 1983, asserting an Eighth Amendment violation for failure to
* Oral argument would not help us decide the appeal, so we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
November 3, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 22-1036 Document: 010110762963 Date Filed: 11/03/2022 Page: 1

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provide an N-95 mask. The district court summarily dismissed the action,
reasoning that Mr. Toney had failed to adequately allege deliberate
indifference.
On appeal, Mr. Toney alleges that authorities failed to provide any
masks despite repeated requests. But he didn’t make this allegation in the
complaint, and it’s too late to add the allegation here. See Smith v. Plati,
258 F.3d 1167, 1172 n.2 (10th Cir. 2001) (considering the allegations made
in the complaint but not the allegations asserted in an appellate brief). So
we do not consider Mr. Toney’s new allegation.
For the allegation that he did not receive an N-95 mask, Mr. Toney
doesn’t present any reason to question the district court’s reasoning. So we
affirm the dismissal. See Nixon v. City and Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015).
Mr. Toney also seeks leave to proceed in forma pauperis. We grant
leave because Mr. Toney cannot afford to prepay the filing fee. Mr. Toney
must continue making partial payments until the filing fee is paid in full.
Entered for the Court
Robert E. Bacharach
Circuit Judge
Appellate Case: 22-1036 Document: 010110762963 Date Filed: 11/03/2022 Page: 2

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