Appellate Case: 22-1036 Document: 010110762963 Date Filed: 11/03/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 3, 2022 _______________________________________ Christopher M. Wolpert Clerk of Court JOEL ALAN TONEY,

Plaintiff - Appellant, No. 22-1036 v. (D.C. No. 1:21-CV-02428-LTB-GPG) (D. Colo.) CAPTAIN GELARDO; DEPUTY CASE; DEPUTY THOMPSON; DEPUTY SPICER; DEPUTY BUNNER, DEPUTY LIPON; PUEBLO COUNTY SHERIFF’S OFFICE; PUEBLO COUNTY DETENTION CENTER,

Defendants - Appellees. _______________________________________

ORDER AND JUDGMENT * _______________________________________

Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. _______________________________________

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). Appellate Case: 22-1036 Document: 010110762963 Date Filed: 11/03/2022 Page: 2

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

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