UNITED STATES COURT 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 Correctional 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 Correctional 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 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 

(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. § 1983 civil rights complaint. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. Background 

Weldon filed his complaint on April 18, 2011, alleging a panoply of 

constitutional and federal statutory violations against numerous individuals, two 

corporate entities, and a Wyoming state-court judge. He sought compensatory and 

punitive damages, as well as declaratory and injunctive relief. 

At the time he filed his complaint, Weldon was incarcerated in a Wyoming 

prison. He had previously been transferred 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 Weldon was incarcerated in a 

Minnesota prison. In Claim 1, he alleged that defendant Mary McComb, a Minnesota 

prison official, confiscated and later destroyed his legal files in retaliation for his 

filing of grievances. Claim 2 named McComb, Tim Lanz, and Ron Ruttgers. Lanz is 

 

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. 
- 4 - 

a Minnesota prison official and Ruttgers is a Wyoming prison official. Weldon 

alleged they conspired to deprive him of his First Amendment right to access the 

courts by threatening to transfer him from the Minnesota prison back to a Wyoming 

prison if he did not cease his pursuit of civil actions and grievances against 

Minnesota prison officials. In Claims 3 through 10, Weldon alleged that McComb, 

Lanz, Ruttgers, and other defendants violated his constitutional rights in the 

Minnesota prison by deducting funds from his prison account; reducing the allotted 

storage space for prisoners, resulting in a loss of his legal materials; depriving him of 

other personal property; and depriving him of adequate medical care. 

Claim 11 alleged that McComb, Lanz, and Minnesota prison officials Joan 

Fabian, Lynn Dingle, and Nannette 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 unconstitutional treatment and 

conditions of confinement. In Claim 12 he alleged that four Wyoming prison 

officials—Lampert, Murphy, Wilson, and Steven Gaylor—deprived him of adequate 

medical care and a safe living 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 habeas 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 service of the summons and complaint upon 

them by the United States Marshal. The court denied his motion, as well as his 

subsequent motion for reconsideration, 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 (“Wyoming Defendants”) filed motions to 

dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).1

 The 

district court granted the motions in full. It also reiterated its previous holding 

regarding jurisdiction over the Minnesota Defendants and dismissed the claims 

against them without prejudice. Weldon 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 (“CMS”) appeared in the district court and 

filed a separate motion to dismiss, arguing they were not subject to personal 

jurisdiction in Wyoming and the complaint failed to state a claim against them. The 

district court granted their motion on both bases. Because 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 judgment in a separate document as required by 

Fed. R. Civ. P. 58(a), and Weldon filed his notice of appeal 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 Minnesota Defendants Based on Lack of 

Personal Jurisdiction 

 Weldon contends the district 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 jurisdiction over all defendants. See Melea, Ltd. v. Jawer SA, 

511 F.3d 1060, 1065 (10th Cir. 2007). Our review 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 court has personal jurisdiction over a 

defendant, we consider “(1) whether the applicable [state long-arm] statute 

potentially confers jurisdiction by authorizing service of process on the defendant 

and (2) whether the exercise of jurisdiction comports with due process.” Trujillo v. 

Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (quotation omitted). “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 States 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 Clause, then [Wyoming’s] long-arm statute 

authorizes jurisdiction over a nonresident defendant.” Trujillo, 465 F.3d at 1217. 

 The exercise of jurisdiction 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 nonresident defendant, based on the defendant’s 

continuous and systematic general business contacts with the forum state.” Id. at 

1218 n.7 (quotation omitted). Absent systematic and continuous activity in the forum 

state, “[t]he minimum contacts necessary for specific jurisdiction may be established 

where the defendant had purposely directed its activities 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, even assuming “some type of contractual 

relationship between the State of Wyoming 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 consequences of their alleged 

actions in Wyoming. Lack of such minimum 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 activities at him. Although it is not clear whether Weldon 

was a resident of Wyoming while he was incarcerated in a Minnesota prison, we must 

accept his allegation as true for purposes 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 essential in each case 

that there be some act by which the defendant purposefully 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 confer jurisdiction over them 

by a Wyoming court. See id. at 1220 (“It is the 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 forum.” (quotation and brackets omitted)). 

2. Minimum Contacts Based on Contract Between Wyoming and 

Minnesota 

 Weldon argues a contract between the states of Wyoming and Minnesota 

related to the confinement of Wyoming prisoners in Minnesota provides a basis for 

general jurisdiction over the Minnesota Defendants—or at least establishes 

purposeful availment of the Wyoming forum by these defendants. Like the district 

court, we assume there is such a contractual relationship 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 mistakenly failed to file this 

contract in the district court and that the court did not advise him of his error until it 

denied his motion for reconsideration of service. But the district court did not 

dismiss his complaint until more than six months later. Thus, Weldon had ample 

opportunity to submit this contract 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 Virginia, sued Virginia prison officials in federal court in 

New Mexico. Id. at 1214-15. He alleged that court had personal jurisdiction over the 

Virginia defendants because they had received 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 came about because of a contract between the State of New 

Mexico and the State of Virginia is not enough, on its own, to subject the Virginia 

defendants to suit in New Mexico.” Id. at 1219 n.10. Likewise, the Minnesota 

Defendants here were not subject to jurisdiction in Wyoming based on the 

assumption of a contract between the states of Wyoming and Minnesota. 

 We reach the same conclusion with respect to Weldon’s statutory argument. 

He cites provisions of the Western Interstate Corrections Compact (“WICC”), 

Wyo. Stat. Ann. § 7-3-401, as establishing minimum contacts by the Minnesota 

Defendants with the state of Wyoming. Specifically, under the WICC (1) the 

receiving state acts as an “agent” for the sending state, id., Art. IV(a); (2) inmates 

remain subject to the jurisdiction 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 does not, by its terms, give 

 

review documents that were “not before the 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 state 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 Mexico district court power to 

exercise personal jurisdiction.” Id. at 1219 n.10.4

3. Personal Jurisdiction Based on Allegations of Conspiracy 

 Weldon next argues the district court had jurisdiction over some of the 

Minnesota Defendants based on the acts of their co-conspirators in Wyoming. He 

cites Melea, Ltd., in which we observed, “The existence of a conspiracy and acts of a 

co-conspirator within the forum 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 conspiracy theory to exist, the plaintiff must offer more than 

bare allegations that a conspiracy 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 (10th Cir. 2011) (limiting “facts that must be 

accepted for purposes of the jurisdictional analysis to those well-pled (that is, 

plausible, non-conclusory, and non-speculative)” (quotation omitted)). To state a 

valid conspiracy claim under § 1983, “a plaintiff must allege specific facts showing 

 

4

 The relevant terms of the ICC adopted in New Mexico and construed in 

Trujillo are identical to the 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 action 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 nonresident co-conspirator. In Melea, 

Ltd. we cautioned, “[T]o hold that one co-conspirator’s presence in the forum creates 

jurisdiction over other co-conspirators threatens to confuse the standards applicable 

to personal jurisdiction and those applicable to liability.” 511 F.3d at 1070. 

Accordingly, there still must be minimum contacts as to each defendant, although 

they can be based on the co-conspirator’s presence in the forum 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 jurisdiction over a nonresident defendant based on a 

co-conspirator’s presence in the forum state because (1) there was no evidence of a 

“meeting of the minds”; and (2) no injury related to the conspiracy occurred in the 

forum state and the nonresident defendant’s only contact with the forum state with 

regard to any purported conspiracy was the receipt of communications from the 

forum state, which did not give 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 conspiracy 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 authorities 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 Ruttgers 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 his 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 and Lanz would be checking on him and 

keeping Ruttgers advised. Lanz then reiterated Ruttgers’ threats and asked Weldon if 

he understood them. 

Even if these allegations support a prima facie showing of a conspiracy, they 

are insufficient to establish 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 grievances and claims against Minnesota prison 

officials. The injury he suffered was a denial of his right to access 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 insufficient 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 McComb, 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 State 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 into in an attempt to prevent Plaintiff from 

pursuing Civil Remedies for his 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 transferred there from Minnesota, but his factual 

assertions are insufficient to support a prima facie showing of a conspiracy. 

Weldon’s bare allegation of a “collusive 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 Cir. 2004) (holding plaintiff failed to state § 1983 

conspiracy claim where he did not allege specific facts showing agreement, concerted 

action, or “manner in which 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 the 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 the claims against the Wyoming Defendants 

for failure to state a claim upon which relief could be granted. “We review de novo 

the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Gee v. 

Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010). 

To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible 

on its face. A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged. 

Id. at 1184 (quotation omitted). “It is particularly important 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 collective 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 after 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 limitations for personal-injury 

actions sets the limitations period for § 1983 actions,” and the applicable limitations 

period in Wyoming is four years. Gee, 627 F.3d at 1189-90 (citing Wyo. Stat. Ann. 

§ 1-3-105(a)(iv)(C)). “Although state law determines the applicable statute of 

limitations, federal law governs the particular point in time at which a claim 

accrues.” Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 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 basis for the unlawful 

destruction of Plaintiff’s legal files and the subsequent illegal threats of retaliation 

made by Defendants Ruttgers, McComb, and Lanz as stated in Claims one and two.” 

R. at 8, 9, 11, 12, 13. The 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 actions occurred. He 

argues the statute of limitations 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 words, “Equitable tolling applies only where a 

party has more than one legal remedy available to him[, and] [t]he doctrine acts to 

toll the statute of limitations 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 deadline. 173 P.3d at 412-13. 

Because Weldon had not identified more than one legal remedy applicable to his 

allegations in Claims 1 through 10, the district court concluded equitable tolling, as 

narrowly construed in Enron, would not extend the limitations 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 here the district court cited Wyoming case 

(continued) 
- 17 - 

Weldon does not directly challenge the district 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 Wyoming 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 prison official inhibits 

an inmate from utilizing an administrative process through threats or intimidation, 

that process can no longer be said to be ‘available.’”). But the district court did not 

dismiss Claims 1 through 10 because Weldon failed to exhaust his administrative 

remedies as required by the PLRA. Weldon fails to show how the district court erred 

in concluding equitable tolling (if even available) would not extend the statute of 

limitations on Claims 1 through 10 and the claims are barred by the applicable statute 

of limitations.7

2. Dismissal of Claim 11 

 Weldon alleges in Claim 11 that Lampert, Wilson, and Murphy conspired with 

certain Minnesota Defendants to transfer Weldon from the Minnesota prison to 

prisons in Wyoming and Virginia in retaliation for his pursuit of civil remedies for 

 

law discussing the doctrine, declining to apply it in one context, and acknowledging 

its potential application in very narrow circumstances in another. 

7

 Although we liberally construe 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 insufficient to support a prima facie showing of a 

conspiracy. As to Weldon’s claims against Lampert, Wilson, and Murphy, the 

district court held that Claim 11 fails to state a claim because: 1) a prisoner has no 

protected interest requiring incarceration in a particular institution; 2)Weldon failed 

to allege specific facts showing the alleged retaliation occurred based on his attempt 

to pursue his civil remedies; and 3) he failed to allege facts showing personal 

involvement by Lampert, Wilson, or Murphy. 

The district court’s first 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 entitled to due process protections prior 

to such a transfer, prison 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 omitted). 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 facts showing retaliation because of the exercise of the prisoner’s 

constitutional rights.” Id. at 562 n.1. Weldon’s allegations in Claim 11 are 
- 19 - 

conclusory. He identifies no grievances or claims he filed 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 was a “trouble maker, problem case, and the 

worst of the worst,” R. at 13 (quotations omitted), is insufficient to establish a causal 

connection between the transfers and his exercise of constitutional rights. See 

Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (“[A] plaintiff must prove 

that ‘but for’ the retaliatory motive, the incidents to which he refers . . . would not 

have taken place.” (quotation omitted)). Nor has Weldon “identif[ied] specific 

actions taken by particular defendants that could form the basis of a constitutional 

violation.” Brown v. Montoya, 662 F.3d 1152, 1165 (10th Cir. 2011) (quotation 

omitted). Instead, he groups numerous defendants into a single cause of action 

without isolating any of their allegedly unconstitutional 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 therefore alleges no 

connection between Lampert, Wilson, or Murphy and any constitutional 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 from cruel and unusual punishment through 

their failure or refusal to ensure he had constitutionally adequate 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 sufficiently serious. 

A medical need is sufficiently 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 would easily recognize the necessity for 

a doctor’s attention. The subjective component is met if a prison 

official knows of and disregards an excessive risk to inmate health or 

safety. 

Id. (citations and quotations omitted). The deliberate indifference standard also 

applies to claims alleging unconstitutional conditions 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 indifference—that he or she both 

knew of and disregarded an excessive risk to inmate health or safety” in case alleging 

injury due to asbestos exposure (footnote omitted)). 

Some of the allegations in Claim 12 require little discussion. Once again, 

Weldon alleges no specific acts by Murphy or Wilson that could form the basis of a 

constitutional violation. The district court was therefore correct in concluding Claim 

12 failed to state a claim against these defendants. Weldon also complains that 

Virginia prison officials confiscated his prescribed knee braces and hernia belts. This 

allegation is insufficient “to raise a right to relief beyond a speculative level” because 

he fails to “plead facts from which a plausible inference can be drawn that the action 
- 21 - 

was not reasonably related to a legitimate penological interest.” Gee, 627 F.3d at 

1187, 1188 (quotation omitted). 

The remaining allegations against Lampert and Gaylor relate to Weldon’s 

exposure to mold at the Virginia prison; the Virginia prison officials’ failure to treat 

his hernia with surgery; and their refusal to provide him with a specific migraine 

medication. He claims Lampert and Gaylor are responsible under Wyoming law for 

the health and welfare of Wyoming prisoners incarcerated in other states’ prison 

systems. In particular, he contends these defendants can be held liable if they 

“personally directed the [constitutional] 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 combination 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 repeatedly “lay on the floor or ground and 

force his intestines back into 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 bases 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 and disregarded an 

excessive risk to [his] health or safety” related to his exposure to mold at the Virginia 

prison. Smith, 561 F.3d at 1104 (reversing dismissal of Eighth Amendment claim 

against some defendants because plaintiff’s factual allegations were sufficient to 

show they were aware of presence of asbestos in prison). His allegation that Gaylor 

had a duty to inspect the prison facility, but failed to do so, is insufficient to establish 

deliberate indifference. “The Eighth Amendment does not outlaw cruel and unusual 

‘conditions’; it outlaws cruel and unusual ‘punishments.’” Farmer v. Brennan, 

511 U.S. 825, 837 (1994). Thus, “an official’s failure to alleviate a significant risk 

that he should have perceived 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 Lampert were deliberately indifferent to his 

serious medical needs. He alleges they were aware, through 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 prison officials’ refusal to 

surgically repair the hernia or give him the migraine medication he wanted. Weldon 

states that he “ultimately received a response from the grievance review board 

denying all responsibility for [his] health and welfare and stating that they cannot 

affect Virginia DOC Policy and that [he] would 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 assert that they refused all treatment for a hernia or for 

his migraines. And he fails to indicate what treatment they did offer him. He alleges 

only their refusal to provide him the only course of treatment he believed to be 

effective in each case. These allegations are insufficient to show a constitutional 

violation. For example, in Fitzgerald v. Corrections Corp. of America, 403 F.3d 

1134, 1137 (10th Cir. 2005), a doctor opined that either 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, even if it constituted 

malpractice, was insufficient to show acts or omissions sufficiently harmful to 

evidence deliberate indifference of serious medical needs. See id. at 1143. In Gee

we rejected an Eighth Amendment 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 concerning 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 therefore 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 rights 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 alleged constitutional violation, yet denied an appeal of 

his grievance. We concluded, “Whatever knowledge [the 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 his 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 Peter G. Arnold, a Wyoming state-court 

judge, violated his federal constitutional rights by construing the scope of the 

Wyoming habeas corpus statute, Wyo. Stat. 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 habeas statute has “deprived [him] of his 

 

9

 According to the Wyoming Supreme Court a state habeas corpus action is 

“seriously limited in scope so that defendants may only raise a claim going to the 

subject matter or personal jurisdiction of the court.” Nixon v. Wyoming, 51 P.3d 851, 

854 (Wyo. 2002); see also Wyo. Stat. Ann. § 1-27-125 (“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 manner.”). It is not clear from 

Weldon’s complaint whether he contends Judge Arnold applied 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 dismissed it as barred by absolute judicial immunity. 

“[J]udges are generally immune from suits for money damages,” with two 

exceptions: “(1) when the act is not taken in the judge’s judicial capacity, and 

(2) when the act, though judicial in nature, is taken in the complete 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). Construing Weldon’s allegations 

as referring to Judge Arnold’s denial of his 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 not support Weldon’s contention that 

Judge Arnold was acting in an administrative capacity in construing the Wyoming 

habeas statute. His conclusory assertions of non-judicial action are insufficient 

where he alleges no facts showing Judge Arnold acted other than in a judicial 

capacity. Weldon also claims Judge Arnold’s “suspension of the writ of habeas 

corpus for prisoners[] is clearly extra-judicial conduct not covered by the Eleventh 

Amendment.” Aplt. Opening Br. at 17. But the complaint again fails to allege facts 

showing Judge Arnold took action in the complete 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 legislature has waived judicial immunity. 

He cites Wyo. Stat. Ann. § 1-27-108, which provides: “Any judge . . . who 

wrongfully and willfully refuses the allowance of the writ when properly applied for, 

shall forfeit to the party aggrieved the sum of one thousand dollars.” 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 individual 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 Cir. 2011). The district court 

dismissed Claim 13 against Judge Arnold in his official capacity as barred by 

Eleventh Amendment immunity, concluding 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 seeks 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 against state officials seeking to enjoin alleged ongoing violations 

of federal law.” Id. at 1154 (citation omitted). “[I]n determining whether the 

doctrine of Ex parte Young applies, a court need only conduct a straightforward 

inquiry into whether the complaint alleges an ongoing violation of federal law and 

seeks relief properly characterized as prospective.” Id. at 1155 (quotation and 

brackets omitted). Although Weldon contends his complaint satisfies this two-part 

inquiry, we conclude otherwise; it fails at the first step. Weldon alleges Judge 

Arnold has construed the Wyoming habeas statute to deny all relief to Wyoming 

prisoners. Weldon makes a conclusory statement that Judge Arnolds’s construction 

of the state statute also deprives him of his federal constitutional “guarantee” to the 

writ of habeas corpus, R. at 15, but he alleges 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 declaratory relief was unavailable.” 42 U.S.C. 

§ 1983. 

11 In order to state a claim against Judge Arnold for declaratory relief, Weldon 

also must overcome the hurdle of establishing 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 relief was moot given the remote possibility the plaintiff 

would again be subjected to probation revocation 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 complaint. Weldon contends 

he needs discovery to allege sufficient facts to state a plausible claim for relief. But 

he identifies no facts that are unavailable 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 was 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 Defendants 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 question 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 affirming the dismissal of Claims 11, 12 and 13 do 

not necessarily preclude the possibility that 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’ motion 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 the district court dismissed 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 under 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 pleading 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 leave to amend . . . .”). It was incumbent 

upon him to do so, and his failure indicates that he “elected to appeal 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 complaint 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 particular basis for the 

amendment.” Calderon, 181 F.3d at 1186. Weldon 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 respect 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 without an opportunity to amend. 

D. Failure to Transfer Claims Against Minnesota Defendants to Minnesota 

District Court 

 

 Weldon contends the district court should have transferred his claims against 

the Minnesota Defendants to a federal district court in Minnesota, rather than 

dismissing them without prejudice. “A court may sua sponte cure jurisdictional and 

venue defects by transferring a suit under the 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 exercise its discretion 

is an abuse of discretion, we remanded the issue for the district court to determine in 

the first instance. Id. at 1223. 

 Here the district court did not mention or evaluate whether transfer of the 

claims against the Minnesota Defendants was appropriate. The factors a court should 

consider are whether “the new action would be time-barred”; whether “the claims are 

likely to have merit”; and whether the original action was filed after the plaintiff 

should have realized the chosen forum was improper. Id. at 1223 n.16. Although 
- 31 - 

transfer is ultimately committed to the district court’s discretion, 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 sanction would be abuse of discretion). 

III. Conclusion 

 We affirm the district court’s dismissal without prejudice of all claims against 

the Minnesota Defendants and its dismissal with prejudice of all claims against the 

Wyoming Defendants, Richard H. Miles, and Correctional Medical Services, Inc. 

The Motion to Affirm and to Dismiss Appellees 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 been paid in full. 

Entered for the Court 

 Terrence L. O’Brien 

 Circuit Judge 

 

12 Claims 1 through 10 are time-barred regardless of the parties named as 

defendants, and our grounds for 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.