UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

STEVE WELDON, Plaintiff-Appellant,

v. SHERYL RAMSTAD-HVASS, Minnesota Department of Corrections Commissioner; JOAN FABIAN, Minnesota Department of Corrections Commissioner; DENNIS BENSON, Minnesota Department of Corrections Assistant Commissioner; ERIK SKON, Minnesota Department of Corrections Assistant Commissioner; DAVID CRIST, Minnesota Department of Corrections Stillwater Correctiona l Facility Former Warden; LYNN DINGLE, Minnesota Department of Corrections Stillwater Correctional Facility Warden; NANNETTE LARSON, Minnesota Department of Corrections Director of Health Services; MARY MCCOMB, Minnesota Department of Corrections Stillwater Correctiona l Facility Former Assistant to Warden and Associate Warden; TIM LANZ, Minnesota Department of Corrections Stillwater Correctional Facility Unit Director; MARK THIELAND, Minnesota Department of Corrections Stillwater Correctional Facility Assistant Warden; DR. LEE, Minnesota Department of Corrections Stillwater Correctional Facility Primary Physician; MINCORR, INC., Minnesota Correctional Industries, a/k/a Minnesota Correctional Industries; SHERYL VESNER, Minnesota No. 12-8047 (D.C. No. 2:11-CV-00150-ABJ) (D. Wyo.) FILED United States Court of Appeals Tenth Circuit 

### March 5, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - Department of Corrections Stillwater Correctional Facility Physician; PETER TROEDSON, Minnesota Department of Corrections Stillwater Correctional Facility Physician; DR. PAULSON, Minnesota Department of Corrections Stillwater Correctional Facility Physician; DR. KNOPP, Minnesota Department of Corrections Stillwater Correctional Facility Physician; CHRISTOPHER CEMAN, Minnesota Department of Corrections Stillwater Correctional Facility Physician; RICHARD H. MILES, CEO, Correctional Medical Services; JOHN MILLER; ROBERT O. LAMPERT, Director, Wyoming Department of Corrections; STEVEN GAYLOR, Wyoming Department of Corrections Medium Correctional Institution Deputy Warden/Contract Monitor; RON RUTTGERS, Former Unit Manager, Wyoming Department of Corrections; MICHAEL MURPHY, Warden, Wyoming Department of Corrections Medium Correctional Institution; EDDIE WILSON, Warden, Wyoming Department of Corrections; PETER G. ARNOLD, First Judicial District Court Judge, each in his individual and official capacity, Defendants-Appellees.

ORDER AND JUDGMENT *

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 (continued)- 3 - Before KELLY , McKAY , and O’BRIEN , Circuit Judges.
Steve Weldon, a Wyoming state prisoner, appeals pro se from the district court’s dismissal of his 42 U.S.C. § 198 3 civil rights complaint. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm. I. Background Weldon filed his complaint on Apr il 18, 2011, alleging a panoply of constitutional and federal statutory viola tions against numerous individuals, two corporate entities, and a Wyoming state-c ourt judge. He sought compensatory and punitive damages, as well as de claratory and injunctive relief. At the time he filed his complaint, Weldon was incarcerated in a Wyoming prison. He had previously been tran sferred by the Wyoming Department of Corrections to and from prisons in Minnesota and Virginia. Claims 1 through 10 of Weldon’s complaint relate to events occurring while We ldon was incarcerated in a Minnesota prison. In Claim 1, he allege d that defendant Mary McComb, a Minnesota prison official, confiscated a nd later destroyed his legal f iles in retaliation for his filing of grievances. Claim 2 named McComb, Tim Lanz, a nd Ron Ruttgers. Lanz is precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.- 4 - a Minnesota prison official and Ruttgers is a Wyoming prison official. Weldon alleged they conspired to deprive him of his First Amendmen t right to access the courts by threatening to tran sfer him from the Minnesota prison back to a Wyoming prison if he did not cease his pursuit of civil actions and gr ievances against Minnesota prison officials. In Claims 3 through 10, Weldon a lleged that McComb, Lanz, Ruttgers, and other defendants vi olated his constitu tional rights in the Minnesota prison by deducting funds from hi s prison account; reducing the allotted storage space for prisone rs, resulting in a loss of his lega l materials; depriving him of other personal property; and deprivi ng him of adequate medical care. Claim 11 alleged that McComb, Lanz, and Minnesota prison officials Joan Fabian, Lynn Dingle, and Nanne tte Larson, conspired with Wyoming prison officials Eddie Wilson, Michael Murphy, and Robert Lampert, to transfer Weldon from the Minnesota prison to a Wyoming prison, and later to a prison in Virginia, in retaliation for his attempts to pursue his claims regarding unconstitu tional treatment and conditions of confinement. In Claim 12 he alleged that f our Wyoming prison officials—Lampert, Murphy, Wilson, and Steven Gaylor—d eprived him of adequate medical care and a safe livi ng environment in a Virginia Prison. Finally, in Claim 13, Weldon alleged that Peter G. Arnold, a Wyoming state-court judge, violated his federal constitutional rights by construing the Wyoming ha beas statute in a manner denying habeas corpus relief to all Wyoming prisoners.- 5 - Many of the individuals named in the complaint, including McComb, Lanz, Fabian, Dingle, and Larson, are residents of Minnesota (“Minnesota Defendants”). Weldon moved the district court for se rvice of the summons and complaint upon them by the United States Marshal. The court denied his motion, as well as his subsequent motion for recons ideration, holding it did not have personal jurisdiction over any of the Minnesota Defendants. Consequently, none of the Minnesota Defendants was served with Weldon’s complaint. The remainder of the defendants (“Wyom ing Defendants”) filed motions to dismiss the complaint for failure to stat e a claim under Fed. R. Civ. P. 12(b)(6). 1 The district court granted the moti ons in full. It also reit erated its previous holding regarding jurisdiction over the Minnesota Defendants and dismissed the claims against them without prejudice. Wel don filed a timely notice of appeal. 2

1 Two of the remaining defendants are not residents of Wyoming. Richard H. Miles and Correctional Medical Services (“CM S”) appeared in the district court and filed a separate motion to dismiss, ar guing they were not subject to personal jurisdiction in Wyoming and the complaint fa iled to state a clai m against them. The district court granted their motion on both bases. Beca use Weldon fails to address the district court’s dismissal with prejudice of all claims against Miles and CMS, we affirm the court’s judgment as to these defendants.
2 The district court did not enter judgme nt in a separate doc ument as required by Fed. R. Civ. P. 58(a), and Weldon filed his notice of a ppeal before the entry of judgment pursuant to Rule 58(c)(2)(B). But Weldon’s notice of appeal was nonetheless effective. See Constien v. United States , 628 F.3d 1207, 1211-12 (10th Cir. 2010); Fed. R. App. P. 4(a)(7)(B).- 6 - II. Discussion A. Dismissal of Claims Against Minne sota Defendants Based on Lack of Personal Jurisdiction Weldon contends the distri ct court erred in holding it did not have personal jurisdiction over the Minnesota Defendants. As the plaintiff, Weldon bore the burden to establish the court’s juri sdiction over all defendants. See Melea, Ltd. v. Jawer SA , 511 F.3d 1060, 1065 (10t h Cir. 2007). Our re view is de novo. Id. “We accept as true any allegations in the complaint not contradicted by the defendant’s affidavits, and resolve any factual disputes in the plaintiff’s favor.” Id. In determining whether a federal c ourt has personal jurisdiction over a defendant, we consider “(1) whether th e applicable [state long-arm] statute potentially confers jurisdiction by authoriz ing service of process on the defendant and (2) whether the exercise of jurisd iction comports with due process.” Trujillo v. Williams , 465 F.3d 1210, 1217 (10th Cir. 2006) (quotation om itted). “Pursuant to Wyoming’s long-arm statute, Wyoming courts are authorized to exercise personal jurisdiction over a defendant on any basis which is not inconsistent with the Wyoming or United Stat es Constitutions.” Meyer v. Hatto , 198 P.3d 552, 555 (Wyo. 2008); see also Wyo. Stat. Ann. § 5-1-107(a) . “Thus, if jurisdiction is consistent with the Due Process Clau se, then [Wyoming’s] long-arm statute authorizes jurisdiction over a nonresident defendant.” Trujillo , 465 F.3d at 1217. The exercise of jurisd iction over a nonresident defendant must satisfy the minimum contacts standard to comport with due process. Id. “[A] court may- 7 - maintain general jurisdiction over a nonres ident defendant, based on the defendant’s continuous and systematic general busin ess contacts with the forum state.” Id. at 1218 n.7 (quotation omitted). Absent system atic and continuous act ivity in the forum state, “[t]he minimum contac ts necessary for sp ecific jurisdiction may be established where the defendant had pur posely directed its activ ities toward the forum jurisdiction and where the underlying action is based upon activities that arise out of or relate to the defendant’s contacts with the forum.” Id. at 1218 (quotations omitted). The district court concluded that, ev en assuming “some type of contractual relationship between the State of Wyomi ng and the State of Minnesota for the confinement of Wyoming prisoners,” R. at 390, Weldon failed to allege any activities by the Minnesota Defendants in Wyoming or any conse quences of their alleged actions in Wyoming. Lack of such mi nimum contacts leaves a Wyoming without jurisdiction over the Minnesota Defendants. 1. Activities Directed at a Resident of the Forum State Weldon contends a Wyoming court could assert jurisdiction over the Minnesota Defendants because he is a resident of the forum state and they purposefully directed their ac tivities at him. Although it is not clear whether Weldon was a resident of Wyoming while he was in carcerated in a Minnesota prison, we must accept his allegation as true for purpose s of the jurisdictional analysis. See Melea, Ltd. , 511 F.3d at 1065. But even assuming that fact,- 8 - [not] any contact with a resident of a forum is sufficient to establish minimum contacts with that forum. Instead, it is esse ntial in each case that there be some act by which the defendant pur posefully avails itself of the privilege of conducting activities within the forum State , thus invoking the benefits and protections of its laws. Trujillo , 465 F.3d at 1219 (quotation omitted). Therefore, the Minnesota Defendants’ contacts with Weldon in Minnesota are insufficient to conf er jurisdiction over them by a Wyoming court. See id. at 1220 (“It is th e defendant’s contacts with the forum

state that are of interest in determining whether personal jurisdiction exists, not its contacts with a resident of the foru m.” (quotation and br ackets omitted)). 2. Minimum Contacts Based on Contract Between Wyoming and Minnesota Weldon argues a contract between th e states of Wyoming and Minnesota related to the confinement of Wyoming pr isoners in Minnesota provides a basis for general jurisdiction over the Minnesota Defendants—or at least establishes purposeful availment of the Wyoming forum by these defenda nts. Like the district court, we assume there is such a contractual relati onship between Wyoming and Minnesota. 3 But we have held this type of contract does not subject nonresident defendants to jurisdiction.

3 Weldon attaches to his opening appeal brief a copy of the Contract Between the State of Minnesota and the State of Wyoming for the Implementation of the Interstate Corrections Compact. He explains that he mistak enly failed to file this contract in the district cour t and that the court did not advise him of his error until it denied his motion for reconsid eration of service. But the district court did not dismiss his complaint until mo re than six months later. Thus, Weldon had ample opportunity to submit this c ontract for the district court’ s consideration. We will not (continued)- 9 - In Trujillo , a New Mexico state prisoner who had previously been transferred to and from a prison in Virgin ia, sued Virginia prison offi cials in federal court in New Mexico. Id. at 1214-15. He allege d that court had person al jurisdiction over the Virginia defendants because they had rece ived a transferred New Mexico prisoner and had implemented New Mexico’s policies pursuant to a contract between the two

states. Id. at 1219. We disagreed, concluding, “The fact that the Virginia officials’ contact with Mr. Trujillo ca me about because of a contra ct between the State of New Mexico and the State of Virginia is not e nough, on its own, to subject the Virginia defendants to suit in New Mexico.” Id. at 1219 n.10. Like wise, the Minnesota Defendants here were not subject to jurisdiction in Wyoming based on the assumption of a contract between th e states of Wyoming and Minnesota. We reach the same conclusion with re spect to Weldon’s statutory argument. He cites provisions of the Western Inte rstate Corrections Compact (“WICC”), Wyo. Stat. Ann. § 7-3-401, as estab lishing minimum contact s by the Minnesota Defendants with the state of Wyoming. Specifically, under the WICC (1) the receiving state acts as an “ag ent” for the sending state, id. , Art. IV(a); (2) inmates remain subject to the jurisd iction of the sending state, id. , Art. IV(c); and (3) the governing law in hearings to which an inmate is entitled is that of the sending state, id. , Art. IV(f). In Trujillo we concluded, “The ICC do es not, by its terms, give
review documents that were “not before th e district court” when the ruling appealed from was made. Boone v. Carlsbad Bancorp., Inc. , 972 F.2d 1545, 1549 n.1 (10th Cir. 1992).- 10 - personal jurisdiction to the transferring st ate over the receiving state’s correctional officers[, nor does it] evidence contacts by any of the Virginia defendants with the State of New Mexico.” 465 F.3d at 1218. And, “[T]he fact that the Virginia defendants may have acted as agents of the State of New Mexico pursuant to the ICC is also not sufficient, on its own, to give the New Mexi co district court power to exercise personal jurisdiction.” Id. at 1219 n.10. 4
3. Personal Jurisdiction Base d on Allegations of Conspiracy Weldon next argues the di strict court had jurisdiction over some of the Minnesota Defendants based on the acts of their co-conspi rators in Wyoming. He cites Melea, Ltd. , in which we observed, “The existe nce of a conspiracy and acts of a co-conspirator within the foru m may, in some cases, subject another co-conspirator to the forum’s jurisdiction.” 511 F.3d at 1069 . But we emphasized, “[F]or personal jurisdiction based on a conspira cy theory to exist, the plai ntiff must offer more than bare allegations that a conspi racy existed, and must allege facts that would support a prima facie showing of a conspiracy.” Id. (quotation omitted); see also Shrader v. Biddinger , 633 F.3d 1235, 1242 (10t h Cir. 2011) (limiting “f acts that must be accepted for purposes of the jurisdictional analysis to those well-pled (that is, plausible, non-conclusory, and non-speculative)” (quotati on omitted)). To state a valid conspiracy claim under § 1983, “a plai ntiff must allege sp ecific facts showing

4 The relevant terms of the ICC adop ted in New Mexico and construed in Trujillo are identical to th e terms of the WICC enacted by Wyoming. Compare Wyo. Stat. Ann. § 7-3-401 with N.M. Stat. Ann. § 31-5-17.- 11 - an agreement and concerted ac tion amongst the defendants. Tonkovich v. Kan. Bd. of Regents , 159 F.3d 504, 533 (10th Cir. 1998). But allegations sufficient to support a prima facie showing of conspiracy do

not necessarily establish jurisdiction over a nonr esident co-conspirator. In Melea, Ltd . we cautioned, “[T]o hold that one co-c onspirator’s presence in the forum creates jurisdiction over other co-conspirators threat ens to confuse the st andards applicable to personal jurisdiction and those applicab le to liability.” 511 F.3d at 1070. Accordingly, there st ill must be minimum contacts as to each defendant, although they can be based on the co-conspirator’ s presence in the fo rum state, “if the conspiracy is directed towards the forum, or substantial steps in furtherance of the conspiracy are taken in the forum.” Id . In Melea, Ltd. , we held the plaintiff failed to establish personal juri sdiction over a nonresident defendant based on a co-conspirator’s presence in the forum stat e because (1) there was no evidence of a “meeting of the minds”; and (2) no injury re lated to the conspira cy occurred in the forum state and the nonresident defendant’s only contact with the forum state with regard to any purported conspiracy wa s the receipt of co mmunications from the forum state, which did not gi ve rise to the lawsuit. See id. Weldon asserts the district court had jurisdiction over Minnesota Defendants McComb, Lanz, Fabian, Dingle, and Larson based upon his conspi racy allegations involving Wyoming Defendants Ruttgers, Lampert, Wilson, and Murphy. In Claim 2, he alleges Ruttgers, McComb, and Lanz conspired to prevent him from pursuing- 12 - grievances and civil actions against Minnesota prison au thorities by threatening to transfer him back to a Wyoming prison. Weldon wanted to remain in the Minnesota prison to be near his family. He alleges that, after learning of his plan to file a § 1983 action, McComb telephoned Ruttger s in Wyoming and arranged for Weldon to meet with Lanz (in Minnesota) and Ruttgers (by telephone from Wyoming). Ruttgers told Weldon if he did not cease hi s efforts to bring claims, Ruttgers would transfer Weldon back to Wyoming, put him in administrative segregation, allow him no visitors, and guarantee he would never be paroled. Ruttgers ended the telephone call after telling Weldon that McComb a nd Lanz would be checking on him and keeping Ruttgers advised. La nz then reiterated Ruttgers’ threats and asked Weldon if he understood them. Even if these allegations support a prim a facie showing of a conspiracy, they are insufficient to es tablish minimum contacts by McComb and Lanz with the state of Wyoming. Weldon failed to allege an injury related to the conspiracy that occurred in Wyoming . The aim of the alleged conspiracy was to dissuade Weldon, by threats of a transfer, from filing any more grieva nces and claims agai nst Minnesota prison officials. The injury he suffered was a deni al of his right to acce ss the courts as long as he desired to remain in the Minnesota prison. Thus, his injury allegedly occurred
in Minnesota . Moreover, the allegation that a co-conspirator placed a single phone call from Wyoming is insuffic ient to establish minimum contacts between McComb- 13 - and Lanz and the state of Wyoming when the call was placed to Minnesota to threaten Weldon with harm in Minnesota. In Claim 11, Weldon alleged McCo mb, Lanz, Fabian, Dingle, and Larson conspired with Lampert, Wilson, and Murphy to retaliate against the Plaintiff through successive punitive transfers from the State of Minnesota to the St ate of Wyoming, and then from the State of Wyoming to the State of Virginia as a ‘trouble maker,’ ‘problem case,’ and the ‘worst of the worst’ Wyoming had. This agreement was entered in to in an attempt to prevent Plaintiff from pursuing Civil Remedies for hi s unconstitutional treatment and conditions of confinement. R. at 13. Weldon maintains he suffered the retaliatory effects of this conspiracy in Wyoming as a result of being transferre d there from Minnesota, but his factual assertions are insufficient to support a prima facie s howing of a conspiracy. Weldon’s bare allegation of a “collu sive agreement to retaliate,” id. , is deficient in the absence of specific facts showing an agreement and concerted action amongst these defendants. See Shrader , 633 F.3d at 1242; Montgomery v. City of Ardmore , 365 F.3d 926, 939-40 (10th Ci r. 2004) (holding plainti ff failed to state § 1983 conspiracy claim where he did not allege specific facts showing agreement, concerted action, or “manner in whic h the conspiracy operated”). The allegations in Claim 11 provide no basis for a Wyoming court to assert jurisdiction over McComb, Lanz, Fabian, Dingle, or Larson. 5

5 In his final contention regarding personal jurisdiction over the Minnesota Defendants, Weldon maintains th e district court should have transferred his claims to (continued)- 14 - B. Dismissal of Claims for Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6) The district court dismissed all of th e claims against the Wyoming Defendants for failure to state a claim upon which relief could be gran ted. “We review de novo the grant of a Rule 12(b)(6) motion to di smiss for failure to state a claim.” Gee v. Pacheco , 627 F.3d 1178, 11 83 (10th Cir. 2010). To survive a motion to dismiss, a complaint must c ontain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibili ty when the plaintiff pleads factual content that allows the cour t to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 1184 (quotation omitted). “It is particularly importa nt in [§ 1983 actions] that the complaint make clear exactly who is alleged to have done what to whom , to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collectiv e allegations against the state.” Kan. Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1215 (10th Cir. 2011) (quotation and brackets omitted). We construe the allegations of a pro se complaint liberally. See Whitney v.
New Mexico , 113 F.3d 1170, 1173 (10th Cir. 1997). But we “will not supply additional factual allegations to round out [his] complaint or construct a legal theory on [his] behalf.” Id. at 1173-74. Nor do we consider factual allegations contained in

a federal district court in Minnesota, rather than dismissing them without prejudice. We address this argument af ter considering the merits of his claims against the Wyoming Defendants.- 15 - Weldon ‘s appeal briefs but absent from his complaint. See Smith v. Plati , 258 F.3d 1167, 1172 n.2 ( 10th Cir. 2001). 1. Dismissal of Claims 1 through 10 as Time-Barred The district court dismissed Claims 1 through 10 as barred by the applicable statute of limitations. “The forum state’s statute of li mitations for personal-injury actions sets the limitations period for § 1983 actions,” a nd the applicable limitations period in Wyoming is four years. Gee , 627 F.3d at 1189-90 (citi ng Wyo. Stat. Ann. § 1-3-105(a)(iv)(C)). “Although state law determines the applicable statute of limitations, federal law governs the partic ular point in time at which a claim
accrues.” Kripp v. Luton , 466 F.3d 1171, 1175 (10th Ci r. 2006). “Section 1983 claims accrue . . . when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. (quotations and alteration omitted). Thus, “[d]etermining when [a] claim accrued requires identifying the constitutional violation and locating it in time.” Id. (quotation and brackets omitted). Weldon filed his complaint in April 2011. According to his allegations, the relevant acts and events in Claims 1 and 2 occurred in September 2000. In each of Claims 3 through 10, he alleged, “This issue formed the ba sis for the unlawful destruction of Plaintiff’s le gal files and the s ubsequent illegal threats of retaliation made by Defendants Ruttgers, Mc Comb, and Lanz as stated in Claims one and two.” R. at 8, 9, 11, 12, 13. Th e acts and events described in Claims 1 through 10 therefore occurred in or before September 2000, outside of the four-year statute of limitations.- 16 - Weldon does not contend he did not know or have reason to know of the injuries described in Claims 1 through 10 when the alleged ac tions occurred. He argues the statute of limitati ons should be tolled on these claims because the threats by Ruttgers, McComb, and Lanz prevented him from filing the claims sooner. The applicability of equitable tolling in a § 1983 case is determined by state law.
See Gee , 627 F.3d at 1190. Citing Enron Oil & Gas Co. v. Freudenthal , 861 P.2d 1090, 1094 (Wyo. 1993), and Merchant v. Gray , 173 P.3d 410, 412- 413 (Wyo. 2007), the district court held that “Wyoming law does not provide for equitable tolling.” R. at 562.
In Enron , the Wyoming Supreme Court said it had not yet considered whether equitable tolling was available. It held that the plaintiff would not prevail even if it were to apply the doctrine. In its wo rds, “Equitable tolling applies only where a party has more than one legal remedy availa ble to him[, and] [t]he doctrine acts to toll the statute of limitati ons for the one remedy while the party is pursuing the other.” 861 P.2d at 1094. In Merchant , the Wyoming Supreme Court rejected equitable tolling as a basis to extend a statutory appeal d eadline. 173 P.3d at 412-13. Because Weldon had not identified more th an one legal remedy applicable to his allegations in Claims 1 through 10, the dist rict court concluded equitable tolling, as narrowly construed in Enron , would not extend the limita tions period for the claims. 6

6 In Gee , we said we had “found nothing to indicate that Wyoming has rejected equitable tolling.” 627 F.3d at 1190. But he re the district court cited Wyoming case (continued)- 17 - Weldon does not directly challenge the di strict court’s conclusion regarding the availability of equitable tolling in Wyoming. Instead , he contends the threats by Ruttgers, McComb, and Lanz to transfer him back to Wy oming if he continued to pursue grievances and claims , rendered his administrative remedies unavailable under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. See Tuckel v.
Grover , 660 F.3d 1249, 1252-53 (10th Cir. 2011) (“[W]hen a pr ison official inhibits an inmate from utilizing an administrative process throug h threats or intimidation, that process can no longer be said to be ‘ava ilable.’”). But the district court did not dismiss Claims 1 through 10 because Weld on failed to exhaust his administrative remedies as required by the PL RA. Weldon fails to show ho w the district court erred in concluding equitable tolling (if even av ailable) would not extend the statute of limitations on Claims 1 through 10 and the cl aims are barred by the applicable statute of limitations. 7
2. Dismissal of Claim 11 Weldon alleges in Claim 11 that Lamper t, Wilson, and Murp hy conspired with certain Minnesota Defendants to transf er Weldon from the Minnesota prison to prisons in Wyoming and Virgin ia in retaliation for his pur suit of civil remedies for

law discussing the doctrine, declining to apply it in one contex t, and acknowledging its potential application in very narrow circumstances in another.

7 Although we liberally constr ue a pro se party’s appellate briefs, we do not assume the role of advocate and construct a legal theory on his behalf. Whitney , 113 F.3d at 1173-74.- 18 - unconstitutional treatment and conditions of confinement. We have already decided the allegations in Claim 11 are insufficien t to support a prima facie showing of a conspiracy. As to Weldon’s claims ag ainst Lampert, Wilson, and Murphy, the district court held that Cl aim 11 fails to stat e a claim because: 1) a prisoner has no protected interest requiring incarceration in a particular institut ion; 2)Weldon failed to allege specific facts showing the allege d retaliation occurred based on his attempt to pursue his civil remedies; and 3) he fa iled to allege facts showing personal involvement by Lampert, Wilson, or Murphy. The district court’s firs t reason for dismissal of Claim 11 was erroneous. Prison officials do not have “ unbridled discretion to transfer inmates in retaliation for exercising their constitutional rights.” Frazier v. Dubois , 922 F.2d 560, 561 (10th Cir. 1990). While a prisoner enjoys no constitutional right to remain in a particular institution and generally is not entitle d to due process protections prior to such a transfer, pris on officials do not have the discretion to punish an inmate for exercising his first amendment rights by transferring him to a different institution. Id. at 561-62 (quotation and alteration omitt ed). But the other two bases for dismissal were not improper. “[I]t is imperative that [a] plaintiff’s pleading be factual and not conclusory. Mere allegations of unconstitutional retaliation will not suffice; plaintiffs must rather allege specific fact s showing retaliation because of the exercise of the prisoner’s constitutional rights.” Id. at 562 n.1. Weldon’s al legations in Claim 11 are- 19 - conclusory. He identifies no grievances or claims he file d or attempted to file that allegedly led to his transfer from Minnesota to Wyoming, and later to Virginia. His assertion of being transferred because he wa s a “trouble maker, problem case, and the worst of the worst,” R. at 13 (quotations omit ted), is insufficient to establish a causal connection between the transfers and hi s exercise of constitutional rights. See Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 199 8) (“[A] plaintiff must prove that ‘but for’ the retaliatory motive, the incidents to whic h he refers . . . would not have taken place.” (quotation omitted)). Nor has Weldon “i dentif[ied] specific actions taken by particular defendants that could form the basis of a constitutional violation.” Brown v. Montoya , 662 F.3d 1152, 1165 (10t h Cir. 2011) (quotation omitted). Instead, he grou ps numerous defendants into a single cause of action without isolating any of their allegedly unconstitu tional acts. See id. His allegations do not “make clear exactly who is alleged to have done what to whom .” Kan. Penn Gaming, LLC , 656 F.3d at 1215 (quotation omitted ). Weldon ther efore alleges no connection between Lampert, Wilson, or Mu rphy and any constitu tional violation.
See Brown , 662 F.3d at 1166. Claim 11 fails to adequately state a claim for relief. 3. Dismissal of Claim 12 In Claim 12, Weldon alleges Lampert, Gaylor, Murphy, and Wilson violated his Eighth Amendment right to be free fro m cruel and unusual punishment through their failure or refusal to ensure he ha d constitutionally adequa te medical care and a safe and healthy living environment in a Virginia prison. “A prison official’s- 20 - deliberate indifference to an inmate’s serious medical needs violates the Eighth Amendment.” Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). The test for deliberate indifference is both objective and subjective. The objective component is met if the deprivation is suffi ciently serious. A medical need is suffi ciently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person woul d easily recognize the necessity for a doctor’s attention. The subjec tive component is met if a prison official knows of and disregards an ex cessive risk to in mate health or safety. Id. (citations and quotations omitted). The deliberate indiffere nce standard also applies to claims allegi ng unconstitutional conditi ons of confinement. See Smith v. United States , 561 F.3d 1090, 1104 (10th Cir. 2009) (stating prisoner must “allege that each defendant official acted with deliberate indi fference—that he or she both knew of and disregarded an excessive risk to inmate health or safe ty” in case alleging injury due to asbestos exposure (footnote omitted)). Some of the allegations in Claim 12 re quire little discussion. Once again, Weldon alleges no specific acts by Murphy or Wilson that could form the basis of a constitutional violation. The district cour t was therefore correct in concluding Claim 12 failed to state a claim against these de fendants. Weldon also complains that Virginia prison officials conf iscated his prescribed knee br aces and hernia belts. This allegation is insufficient “to raise a right to relief beyond a specu lative level” because he fails to “plead facts fro m which a plausible inference can be drawn that the action- 21 - was not reasonably related to a leg itimate penological interest.” Gee , 627 F.3d at 1187, 1188 (quot ation omitted). The remaining allegations against Lamp ert and Gaylor relate to Weldon’s exposure to mold at the Virginia prison; the Virginia prison official s’ failure to treat his hernia with surgery; and their refusa l to provide him with a specific migraine medication. He claims La mpert and Gaylor are respon sible under Wyoming law for the health and welfare of Wyoming prisone rs incarcerated in other states’ prison systems. In particular, he contends these defendants can be held liable if they “personally directed the [cons titutional] violation or had knowledge of the violation and acquiesced in its continuance.” Jenkins v. Wood , 81 F.3d 988, 995 (10th Cir. 1996). 8 Weldon claims he was exposed to mold at the Virginia prison, causing an allergic reaction that made him cough for seven hours. Although he received nebulizer treatments, he alleges the co mbination of prolonged coughing and the denial of his hernia belts resulted in a new hernia. Weldon claims this hernia was extremely painful, indicating he had to re peatedly “lay on the floor or ground and force his intestines back in to his abdominal cavity to relieve the pain and restore blood flow.” R. at 14.

8 We queried in Dodds v. Richardson , 614 F.3d 1185, 1194-99 (10th Cir. 2010), whether this and other base s for supervisory liability under § 1983 survived the Supreme Court’s decision in Ashcroft v. Iqbal , 556 U.S. 662 (2009). We need not resolve that question here because Weldon cannot meet even our pre- Iqbal standard.- 22 - Weldon alleges no facts showing Gaylor “both knew of a nd disregarded an excessive risk to [his] health or safety” related to his exposu re to mold at the Virginia prison. Smith , 561 F.3d at 1104 (reversing dismis sal of Eighth Amendment claim against some defendants because plaintiff’s factual allegations were sufficient to show they were aware of presence of asbest os in prison). His a llegation that Gaylor had a duty to inspect the prison facility, but fa iled to do so, is in sufficient to establish deliberate indifference. “The Eighth Am endment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’” Farmer v. Brennan , 511 U.S. 825, 837 (1994). Th us, “an official’s failure to alleviate a significant risk that he should have percei ved but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Id. at 838. Weldon also contends Gaylor and Lamper t were deliberately indifferent to his serious medical needs. He alleges they were aware, th rough an emergency grievance he filed with Lampert and his interview with Gaylor, of the extent of pain caused by his hernia and his migraines, as well as the Virginia pr ison officials’ refusal to surgically repair the hernia or give him the migraine medication he wanted. Weldon states that he “ultimately received a response from th e grievance review board denying all responsibility for [his] health and welfare a nd stating that they cannot affect Virginia DOC Policy and that [he] w ould essentially have to suffer through as best as he could.” R. at 14.- 23 - Weldon does not allege that Virginia prison authorities diagnosed him as having a hernia. Nor does he as sert that they refu sed all treatment for a hernia or for his migraines. And he fails to indicate what treatment they did o ffer him. He alleges only their refusal to provide him the only course of treatment he believed to be effective in each case. Th ese allegations are insuffici ent to show a constitutional violation. For example, in Fitzgerald v. Correcti ons Corp. of America , 403 F.3d 1134, 1137 (10th Cir. 2005), a doctor opined that eith er surgery or doing nothing were acceptable courses of treatment for a fractured femur, while acknowledging that surgery was preferable. We held the doctor’s alleged conduct, ev en if it constituted malpractice, was insufficien t to show acts or omission s sufficiently harmful to evidence deliberate indifference of serious medical needs. See id. at 1143. In Gee we rejected an Eighth Amendm ent claim based on a prisoner’ s desire for a particular headache medication when other medications were offered. See 627 F.3d at 1192. We agree with the district court: Weldon’s allegations amount to a disagreement with the judgment of medical personnel concerni ng the most appropriate treatment. Without more, such a disagreement does not rise to the level of a constitutional violation. See id. Weldon’s allegations are theref ore insufficient to state a claim against Lampert or Gaylor based on their knowing acquiescence in the continuation of a constitutional violation. Moreover, “[t]he denial of a grievance, by itself without any connection to the violation of constitutional ri ghts alleged by plaintiff, does not establish personal- 24 - participation under § 1983.” Stewart v. Beach , 701 F.3d 1322, 1328 (10th Cir. 2012) (quotation omitted). In Stewart , a prisoner pointed to evidence of the prison warden’s knowledge of the alle ged constitutional violation, yet denied an appeal of his grievance. We concl uded, “Whatever knowledge [t he warden] may have had when he denied the appeal , his only involvement was to deny the grievance appeal, which is insufficient for § 1983 liability.” Id. Thus, even if Weldon could allege facts showing deliberate indifference to hi s serious medical needs by the Virginia prison officials, an allegation that Lampert and Gaylor denied his grievance, without more, is insufficient to state a claim for relief against them under § 1983. 4. Dismissal of Claim 13 In Claim 13, Weldon alleges that Pe ter G. Arnold, a W yoming state-court judge, violated his federal constitutiona l rights by construing the scope of the Wyoming habeas corpus statute, Wyo. St at. Ann. §§ 1-27-101 to -130, in a manner denying habeas corpus relief to all Wyoming prisoners. 9 Weldon alleges Judge Arnold’s construction of the Wyoming hab eas statute has “dep rived [him] of his

9 According to the Wyoming Supreme C ourt a state habeas corpus action is “seriously limited in scope so that defe ndants may only raise a claim going to the subject matter or personal ju risdiction of the court.” Nixon v. Wyoming , 51 P.3d 851, 854 (Wyo. 2002); see also Wyo. Stat. Ann. § 1-27-1 25 (“Habeas corpus is not permissible to question the correctness of the action of a . . . judge when acting within [the judge’s] jurisdiction and in a lawful manne r.”). It is not clear from Weldon’s complaint whether he contends Judge Arnold app lied this construction or interpreted the statute even more narrowly.- 25 - guaranteed right to the Writ of Habeas Corpus in both the State and Federal Courts.” R. at 15. To the extent Weldon alleges Claim 13 against Judge Arnold in his individual capacity, the district court di smissed it as barred by absolute judicial immunity. “[J]udges are generally immune from su its for money damages,” with two exceptions: “(1) when the act is not ta ken in the judge’s judicial capacity, and (2) when the act, though judicial in nature, is taken in the comp lete absence of all jurisdiction.” Stein v. Disciplinary Bd. of Supreme Ct. of N.M. , 520 F.3d 1183, 1195 (10th Cir. 2008) (quotations and brackets omitted). C onstruing Weldon’s allegations as referring to Judge Arnold’s denial of hi s request for a writ of habeas corpus, the court decided the complaint contained no indication of acts outside of judicial capacity or with a complete lack of jurisdiction. The allegations of the complaint do no t support Weldon’s contention that Judge Arnold was acting in an administ rative capacity in construing the Wyoming habeas statute. His conclu sory assertions of non-judi cial action ar e insufficient where he alleges no facts showing Judge Arnold acted other than in a judicial capacity. Weldon also claims Judge Arnold’s “suspensi on of the writ of habeas corpus for prisoners[] is cl early extra-judicial conduct not covered by the Eleventh Amendment.” Aplt. Opening Br. at 17. But the complaint again fa ils to allege facts showing Judge Arnold took action in the co mplete absence of all jurisdiction. See Beedle v. Wilson , 422 F.3d 1059, 1072 (10th Cir. 2005) (“A judge will not be- 26 - deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather he will be subject to liability only when he has acted in the clear absence of jurisdiction.” (quotation omitted)). Weldon also contends the Wyoming legisl ature has waived judicial immunity. He cites Wyo. Stat. Ann. § 1-27-108, which provides: “Any judge . . . who wrongfully and willfully refu ses the allowance of the writ when properly applied for, shall forfeit to the party aggrieved the su m of one thousand dolla rs.” This provision subjects a Wyoming judge to a monetary penalty under state law. It does not abrogate judicial immunity in a suit for damages under § 1983. We agree with the district court that Claim 13 against Judge Arnold in his i ndividual capacity is barred by judicial immunity. “Judicial immunity applies only to personal capacity claims.” Crowe & Dunlevy, P.C. v. Stidham , 640 F.3d 1140, 1156 (10th Ci r. 2011). The district court dismissed Claim 13 against Judge Arnold in his offici al capacity as barred by Eleventh Amendment immunity, concludi ng Weldon failed to plead facts supporting an exception to sovereign immunity under Ex parte Young , 209 U.S. 123 (1908). Weldon argues the district court erred in dismissing his official-capacity claim against Judge Arnold because he s eeks prospective declaratory relief. 10 “In Ex parte

10 Despite his references to injunctive relief in his opening appeal brief, Weldon did not seek injunctive relief against Judge Arnold in Claim 13. Moreover, under § 1983, he could not obtain injunctive relief against a judicial officer “unless a (continued)- 27 - Young , the Supreme Court carved out an exception to Eleventh Amendment immunity for suits agai nst state officials seek ing to enjoin allege d ongoing violations of federal law.” Id . at 1154 (citation omitted). “[I]n determining whether the doctrine of Ex parte Young applies, a court need onl y conduct a straightforward inquiry into whether the complaint allege s an ongoing violation of federal law and seeks relief properly charact erized as prospective.” Id. at 1155 (quotation and brackets omitted). Although Weldon contends his complain t satisfies this two-part inquiry, we conclude otherwis e; it fails at the first st ep. Weldon alleges Judge Arnold has construed the Wyom ing habeas statute to deny all relief to Wyoming prisoners. Weldon makes a c onclusory statement that J udge Arnolds’s construction of the state statute also depr ives him of his federal cons titutional “guarantee” to the writ of habeas corpus, R. at 15, but he al leges no facts showing a violation of federal law, ongoing or otherwise. 11 Weldon failed to allege facts sufficient to show an exception to Eleventh Amendment immunity under Ex parte Young . The district court did not err.

declaratory decree was violated or decl aratory relief was unava ilable.” 42 U.S.C. § 1983.
11 In order to state a claim against Ju dge Arnold for declaratory relief, Weldon also must overcome the hurdle of establis hing an existing case or controversy. See Schepp v. Fremont Cnty. , 900 F.2d 1448, 1452-53 (10th Cir. 1990) (holding claim against judge for declaratory re lief was moot given the remo te possibility the plaintiff would again be subjected to probation re vocation proceedings before the same judge).- 28 - C. Dismissal With Prejudice Without Discovery or Opportunity to Amend The district court granted the Wyoming Defendants’ motion to stay discovery pending its determination of the motions to dismiss the complain t. Weldon contends he needs discovery to allege sufficient facts to state a pl ausible claim for relief. But he identifies no facts that are unava ilable to him without discovery. See Smith v. Kitchen , 156 F.3d 1025, 1029 (10th Cir. 1997). He therefore fails to show the district court’s stay of discovery wa s an abuse of discretion. See Gaines v. Ski Apache , 8 F.3d 726, 730-31 (10th Cir. 1993) (holding denial of discovery was not abuse of discretion). Weldon also claims he should have been given an opportunity to amend when his complaint against the Wyoming Defendan ts was dismissed with prejudice. We have said: “dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Gee , 627 F.3d at 1195 (quotation omitted). Futility of amendment is a que stion of law we review de novo. Cohen v. Longshore , 621 F.3d 1311, 1314-15 (10th Cir. 2010). The district court did not expressly determine that it would be futile to give Weldon an opportunity to amend his complaint, but it well could have done so. Amendment of Claims 1 through 10 would be futile in light of our affirmance of their dismissal as time-barred. But our grounds for affirmi ng the dismissal of Claims 11, 12 and 13 do not necessarily preclude the possibility th at Weldon could amend his complaint to- 29 - allege sufficient facts to state a plausible claim. We need not decide that question because Weldon failed to take advantage of available opportunities to amend. First, the Wyoming Defendants’ moti on to dismiss gave him “notice and opportunity to amend his complaint,” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), yet he did not file an amended complaint as permitted by Fed. R. Civ. P. 15(a)(1)(B). And after th e district court dism issed his complaint, Weldon did not seek leave to amend it by filing a motion to alter or amend the judgment or for relief from judgment unde r Fed. R. Civ. P. 59(e) or 60(b). See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs. , 181 F.3d 1180, 1185 (10th Cir. 1999) (“If a party seeks to amend a pleadi ng following the court’s grant of a motion to dismiss, the party must first move to reopen the case under [Rules] 59(e) or 60(b) and then file a motion under [Rule 15] for leav e to amend . . . .”). It was incumbent upon him to do so, and his failure indicates th at he “elected to a ppeal the case as it stood.” Switzer v. Coan , 261 F.3d 985, 989 (10th Cir. 2001) (rejecting contention pro se plaintiff should have been allowed to amend his complaint after dismissal) (quotation omitted); see also Dahn v. United States , 127 F.3d 1249, 1252 (10th Cir. 1997) (holding district court did not err in failing to grant pro se plaintiff a post-judgment opportunity to amend her comp laint when she did not seek leave to amend). A motion seeking leave to amend a complaint must give “notice to opposing parties and to the court of both the desire to amend and the par ticular basis for the amendment.” Calderon , 181 F.3d at 1186. Wel don did not satisfy these- 30 - requirements in the district court, and he does not even attempt to detail and explain the additional facts he would allege with resp ect to Claims 11, 12 or 13. The district court did not err in dismissing all of Weldon’s claims against the Wyoming Defendants with prejudice and wit hout an opportunity to amend. D. Failure to Transfer Claims Agains t Minnesota Defendants to Minnesota District Court Weldon contends the distri ct court should have transf erred his claims against the Minnesota Defendants to a federal dist rict court in Minne sota, rather than dismissing them without pr ejudice. “A court may sua sponte cure jurisdictional and venue defects by transferring a suit under th e federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice.” Trujillo , 465 F.3d at 1222. A district court has discretion in making the decision whether to transfer or dismiss without prejudice. Id. at 1222-23. In Trujillo , the district court noted the option to transfer rather than dismiss the claims against the Virginia defendants, but it did not evaluate that possibility. Because a court’s failure to ex ercise its discretion is an abuse of discretion, we remanded the issue for the dist rict court to determine in the first instance. Id. at 1223. Here the district court did not menti on or evaluate whether transfer of the claims against the Minnesota Defendants wa s appropriate. The f actors a court should consider are whether “the ne w action would be time-barred” ; whether “the claims are likely to have merit”; and whether the orig inal action was filed after the plaintiff should have realized the c hosen forum was improper. Id. at 1223 n.16. Although- 31 - transfer is ultimately committed to the district court’s disc retion, due to the lack of merit of Claims 1 through 11, 12 it would be an abuse of discretion for the district court to transfer them. Cf. Conkle v. Potter , 352 F.3d 1333, 1337 (10th Cir. 2003) (declining to affirm dismissal sanction on alternate ground where court could not conclude that failure to impose sanc tion would be abuse of discretion). III. Conclusion We affirm the district court’s dismis sal without prejudice of all claims against the Minnesota Defendants and its dismissal w ith prejudice of all claims against the Wyoming Defendants, Richard H. Miles, and Correctional Medical Services, Inc. The Motion to Affirm and to Dismiss Appe llees Dr. Dean Lee, Dr. Peter Troedson, Dr. Christopher Ceman, Correctional Medical Services, Inc., and Richard H. Miles is denied as moot. Weldon’s motion to pay the filing and docketing fees in partial payments is granted and he is reminded of his obligation to make partial payments until the fees have be en paid in full. Entered for the Court

Terrence L. O’Brien Circuit Judge

12 Claims 1 through 10 are time-barre d regardless of the parties named as defendants, and our grounds fo r concluding the allegations in Claim 11 fail to state a claim against the Wyoming Defendants apply equally to Weldon’s allegations against the Minnesota Defendants in that claim. Claims 12 and 13 do not name any Minnesota Defendants.