Appellate Case: 23-3135 Document: 010110989167 Date Filed: 01/24/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 24, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
CHRISTOPHER GILMORE,
Plaintiff - Appellant,
v. No. 23-3135
(D.C. No. 5:23-CV-03113-JWL)
VITAL CORE, LLC; (FNU) DeMARCO; (D. Kan.)
JENNIFER (LNU); ANNA (LNU); (FNU)
NEPH,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.**
_________________________________
Plaintiff-Appellant Christopher Gilmore, appearing pro se, appeals from the
district court’s judgment dismissing his claims for excessive force, deliberate
indifference to serious medical needs, and a failure to train regarding Defendant-
Appellee Vital Core, LLC. Gilmore v. Vital Core, LLC, No. 23-3113, 2023 WL
4637412 (D. Kan. July 20, 2023). On appeal, he argues that the district court did not
*
This order and judgment is not binding precedent, except under the doctrines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 appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Appellate Case: 23-3135 Document: 010110989167 Date Filed: 01/24/2024 Page: 2
include in its decision the facts in his complaint, his case citations, and his responses,
all of which satisfied the requirement of a short and plain statement of the facts. See
Fed. R. Civ. P. 8(a)(1). He also argues that the district court should have ordered a
Martinez report as it did in another case.1
We take the well-pleaded facts contained in the complaint as true and in the
light most favorable to Mr. Gilmore. Young v. Davis, 554 F.3d 1254, 1256 (10th
Cir. 2009). Mr. Gilmore currently resides at Larned State Hospital, a psychiatric
facility. In 2022, he was a civilly committed patient in the custody of the Sedgwick
County Jail. On December 2, 2022, Mr. Gilmore sought treatment for breathing
difficulties resulting from his dentures and the jail-mandated denture adhesive.
Some of the claims in this case overlap with those in Gilmore v. Neph, No. 23-
3134, in which we reversed the judgment only insofar as the single claim raised on
appeal: dismissal of Mr. Gilmore’s excessive force claim regarding his trip to the jail
medical clinic. Gilmore v. Neph, No. 23-3134, 2024 WL 48989 (10th Cir. Jan. 4,
2024). We follow the same course here — on remand the district court should
consider the excessive force claim in light of that disposition. We affirmed the
district court’s judgment in No. 23-3134 in all other respects, so Mr. Gilmore cannot
raise the same claims in this case.
We review a dismissal under Federal Rule of Civil Procedure 12(b)(6)
pursuant to 28 U.S.C. § 1915A(b)(1) de novo, asking whether the complaint has
1
We disagree. Each case turns on its own facts, and a Martinez report is not
always required. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
2
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sufficient facts to yield a claim that is plausible on its face. See Young, 554 F.3d at
1256. To state a claim for deliberate indifference to serious medical needs, a pretrial
detainee must allege an objective component and a subjective component. Lucas v.
Turn Key Health Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023). The subjective
component requires the defendant to be “aware of the facts from which the inference
of a substantial risk of serious harm could be drawn and also draw that inference.”
Id. at 1137. The district court dismissed Mr. Gilmore’s claim concerning deliberate
indifference to serious medical needs because he could not show that any defendant
was aware of facts indicating a substantial risk of serious harm regarding his ongoing
lack of access to chronic-care breathing treatments, and then drew the necessary
inference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The district court
noted that Mr. Gilmore had complained of breathing problems associated with
denture issues, not asthma, and that he had been taken off chronic-care breathing
treatments prior to December 2, 2022, the date of the incident involving the excessive
force claim.
Though Mr. Gilmore indicates that he needed the breathing treatment for
objectively serious medical needs, asthma and sarcoidosis, we read the district
court’s order as involving the subjective component of the claim. Although Mr.
Gilmore later disclaimed any reliance on his problems with denture adhesives, the
district court correctly focused on the gravamen of his claims — the actions
3
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occurring on December 2 — and reasonably concluded that the facts did not
demonstrate deliberate indifference.2
We also agree with the district court that Mr. Gilmore’s reliance on state-law
claims or operational regulations and policies does not provide federal claims. See
West v. Atkins, 487 U.S. 42, 48 (1988) (§ 1983 claims must involve a violation of a
federal constitutional right under color of state law). Insofar as Mr. Gilmore alleges
that Vital Core is attempting to cut costs by reducing care and failing to train its
employees, such allegations lack the necessary facts to state a plausible claim and we
affirm based on the lack of adequate facts tending to show a constitutional violation,
let alone causation. See Lucas, 58 F.4th at 1144.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings
consistent with this order and judgment. We GRANT Mr. Gilmore’s motion to
proceed on appeal without prepayment of fees or costs, and remind him that he is
responsible for the full amount of the filing fee.3
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2
We reiterate that Mr. Gilmore brought similar claims in Gilmore v. Neph, 22-
3316, which the district court dismissed, and this court affirmed the dismissal as to
those claims. Gilmore v. Neph, No. 22-3316, 2023 WL 3040452, at *6–7 (D. Kan.
Apr. 21, 2023), aff’d in part, rev’d in part, No. 23-3134, 2024 WL 48989 (10th Cir.
Jan. 4, 2024).
3
Mr. Gilmore has submitted a “Supplemental Affidavit” claiming that the
Sedgwick County Sheriff’s Department has stolen from funds to be used to satisfy
PLRA assessments. We do not consider materials not before the district court.
4