UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

SHANNON LUCAS, 

 Plaintiff - Appellant,

v.

THE BOARD OF COUNTY 

COMMISSIONERS OF THE COUNTY 

FOR LARIMER COUNTY COLORADO, 

a governmental entity; LARIMER 

COUNTY COMMUNITY 

CORRECTIONS BOARD; LARIMER 

COUNTY COMMUNITY 

CORRECTIONS; Criminal Justice 

Services in his individual and official 

capacities; TIM HAND, Director Larimer, 

County Community Corrections, in his 

individual and official capacities; DANA 

HERSCH, Assistant Director, Larimer 

County Community Corrections, in her 

individual and official capacities; MASON 

KOPP, Program Team Lead, Larimer 

County Corrections, in his individual and 

official capacities; GWEN ASH, Program 

Case Manager, Larimer County 

Community Corrections, in her individual 

and official capacities; ERIN 

CALDWELL, Program Team Lead, 

Larimer County Community Corrections, 

in her individual and official capacities; 

LAUREN HAND, Staff Member, Larimer 

County Community Corrections, in her 

individual and official capacities, 

 Defendants - Appellees, 

and

No. 22-1259

(D.C. No. 1:19-CV-01251-RMR-SKC)

(D. Colo.)

FILED

United States Court of Appeals

Tenth Circuit

November 30, 2023

Christopher M. Wolpert

Clerk of Court

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LARIMER COUNTY PROBATION 

DEPARTMENT and GARY DARLING, 

Division Director, Criminal Justice 

Services in his individual and official 

capacities,

 Defendants.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges.

_________________________________

Shannon Lucas appeals the district court’s order denying her motion to file a 

third amended complaint (“TAC”) as futile and dismissing her claims. Exercising 

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

I. BACKGROUND

In April 2019, Ms. Lucas, who was serving an eight-year sentence in 

community corrections resulting from her conviction in Colorado state court for 

first-degree burglary, filed a complaint alleging claims against numerous individuals 

and entities under (1) state law for negligence and intentional infliction of emotional 

distress and (2) various federal statutes, including 42 U.S.C. § 1983. After 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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conferring with defendants’ counsel, Ms. Lucas filed an amended complaint that 

abandoned several claims and defendants. 

On the last day for amending the pleadings under the scheduling order, 

Ms. Lucas filed a motion for leave to file a second amended complaint, which was 

granted. The result was a complaint that brought claims under § 1983 for: 

(1) retaliation in violation of the First Amendment; (2) failure to provide medical 

care in violation of the Eighth Amendment; and (3) conspiracy to violate the First 

and Eighth Amendments. Defendants moved to dismiss on the grounds that (1) the 

First Amendment retaliation claim was barred under Heck v. Humphrey, 512 U.S. 477 

(1994), and Edwards v. Balisok, 520 U.S. 641 (1997), and (2) the complaint failed to 

state plausible claims under either the Eighth Amendment or for conspiracy. The 

district court agreed and granted the motion to dismiss; however, it also granted 

Ms. Lucas permission to file a motion for leave to file a TAC. 

Ms. Lucas filed a motion seeking leave to file a TAC, alleging the same three 

claims as the second amended complaint. The district court referred the motion to a 

magistrate judge. While the motion was under consideration, the case was reassigned 

to a different district court judge. The magistrate judge issued an order granting 

Ms. Lucas’s motion; defendants filed a timely objection. The district court 

considered the order as a report and recommendation, sustained the objection, 

vacated the magistrate judge’s order, and denied Ms. Lucas’s motion to file the TAC 

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as futile.1

 In doing so, the district court dismissed the Eighth Amendment and 

conspiracy claims with prejudice and the First Amendment retaliation claim without 

prejudice.2

 Ms. Lucas appeals. 

II. THE TAC

The following allegations are contained in the TAC. Prior to the events 

underlying her claims, Ms. Lucas was prescribed Clonazepam to treat anxiety and 

post-traumatic stress disorder. Her doctor warned her about possible serious side 

effects from discontinuing or improperly tapering her dosage. 

In July 2018, Ms. Lucas was convicted of first-degree burglary and sentenced 

to eight years in Larimer County Community Corrections (“LCCC”). She began 

serving her sentence on October 9, 2018, when she reported to a residential facility. 

Upon admission, Ms. Lucas turned over her medication to staff, who in turn 

noted the medication type, dosage, and pill count in the computer software system. 

According to Ms. Lucas, “LCCC staff input two material inaccuracies to [her] 

medication file: first, staff recorded her medication to be administered three rather 

1 The district court did not address whether plaintiff established good cause 

under Fed. R. Civ. P. 16(b)(4) to modify the deadline in the scheduling order to file 

an amended complaint. See also Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank 

Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014). The court explained that because its 

determination that the proposed amendment was futile was “dispositive,” it was 

“unnecessary . . . to determine whether the good cause standard was met.” J.A., 

Vol. II at 411.

2 Because the district court denied the motion to amend as futile, it dismissed 

Defendants’ motion to dismiss as moot. 

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than four times daily; second, staff recorded the number of pills turned in as 38 rather 

than 56.” J.A., Vol. II at 326. 

Several days later, “[o]n or around October 14, 2018, [Ms. Lucas] noticed the 

unusual dissipation of medication in her pill bottle.” Id. She reported the missing 

pills and erroneous dosing instructions to LCCC Case Manager Gwen Ash, who 

“advised [Ms. Lucas] to start taking fewer Clonazepam tablets so that they would 

‘last until the next refill.’” Id. According to Ms. Lucas, Ms. Ash “was not a licensed 

medical professional and was in no way qualified to amend prescription medication 

dosing instructions.” Id. “As a result, [Ms. Lucas] was denied her medication as 

prescribed without medical advice or oversight” and “suffered physical and mental 

side effects from benzodiazepine withdrawal,” including “sever[e] panic and anxiety, 

significant weight loss, changes in vital signs, insomnia, dizziness, stomach pain, 

confusion, and cognitive disturbances.” Id. at 327. 

A few days later, on October 18, 2018, Ms. Lucas requested an audit of her 

remaining medication. That audit, according to Ms. Lucas, confirmed that at least six 

tablets were missing. Because she feared running out of medication, she “was forced 

to request a prescription refill ahead of schedule.” Id. at 328. The following day, 

October 19, Ms. Lucas “requested and received a new prescription” that she picked 

up at the store and turned over to LCCC staff. Id. at 328-29. “[A] total of 90 

Clonazepam tablets were counted and entered into LCCC’s electronic tracking 

system.” Id. at 329. 

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On October 31, 2018, Ms. Lucas again noticed “an unusually low quantity of 

pills in her bottle.” Id. LCCC Team Lead Supervisor Mason Kopp “counted the 

remaining pills in front of [her] and confirmed that at least 26 tablets were missing.” 

Id. This time, however, instead of complaining to staff, Ms. Lucas “reported the 

missing medication to law enforcement by filing a police report at the Larimer 

County Sheriff’s Department.” Id. When law enforcement arrived to investigate, 

Mr. Kopp accused Ms. Lucas of “diverting her own medication to support a 

‘substance abuse problem.’” Id.

Ms. Lucas alleged that “[i]n retaliation for filing a report with [law 

enforcement],” several LCCC staff members “worked in concert to issue a bogus 

citation” against her for “‘false reporting.’” Id. at 330. “On or around November 1, 

2018, despite a complete lack of evidence to support the infraction,” the LCCC Board 

“upheld the citation and imposed discipline—loss of privileges, loss of ‘good time’ 

credit, and an increase in [her] required stay in the residential facility by 25 days.” 

Id. Ms. Lucas appealed; however, “[a]fter a sham process that included review of the 

merits by [a staff member] who helped perpetrate the imposition of the [bogus] 

citation, the infraction and related discipline were upheld.” Id.

On November 6, 2018, Ms. Lucas spoke to her doctor about tapering her use of 

Clonazepam, and “over time, she tapered down to two tablets daily for a total of 

14 tablets a week.” Id. at 331. 

Several months later, on March 4, 2019, Ms. Lucas had her prescription 

refilled for fourteen tablets. But when she turned in her medication, LCCC staff 

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member Lauren Hand counted just twelve tablets and suggested that the pharmacy 

made a mistake. Ms. Lucas confirmed that she received fourteen tablets and told 

Ms. Hand she would be pursuing an investigation. According to Ms. Lucas, the 

following day, Ms. Hand confronted her in the bathroom and threatened her with 

disciplinary action if she reported the missing pills. Ms. Lucas was released from the 

residential facility the following month. See id. at 323 (“Plaintiff resided at LCCC 

from October 9, 2018[,] to April, 2019.”). 

In the proposed third amended complaint, Ms. Lucas sought damages on the 

retaliation claim on the grounds that defendants “punished [her] for exercising 

constitutionally protected speech by working in concert to sustain a bogus 

disciplinary infraction against her, resulting in a material loss of privileges, good 

time, and an extension of her confinement in community corrections.” Id. at 335-36. 

She also sought damages for the alleged Eighth Amendment violation and conspiracy 

to violate her constitutional rights. 

III. STANDARD OF REVIEW

“Although [Federal Rule of Civil Procedure] 15(a)[(2)] provides that leave to 

amend shall be given freely, the district court may deny leave to amend where 

amendment would be futile.” Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Inv.’s

Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999). “A proposed amendment is futile if 

the complaint, as amended, would be subject to dismissal for any reason . . . .” 

Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001). 

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Although we generally review a district court’s denial of leave to amend a 

complaint for abuse of discretion, “[w]hen a district court denies amendment based 

on futility, our review for abuse of discretion includes de novo review of the legal 

basis for the finding of futility.” Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1218 

(10th Cir. 2022) (internal quotation marks omitted), cert. denied, 143 S. Ct. 1748 

(2023). “We thus consider de novo whether it is patently obvious that the plaintiff 

could not prevail on the facts alleged, and allowing him an opportunity to amend his 

complaint would be futile.” Cohen v. Longshore, 621 F.3d 1311, 1314-15 (10th Cir. 

2010) (internal quotation marks omitted). Because we consider this matter de novo, 

we may affirm on any legal ground supported by the record, even grounds not 

reached by the district court. See, e.g., Wolfgang v. Mid-Am. Motorsports, Inc., 

111 F.3d 1515, 1524 (10th Cir. 1997) (noting that on de novo review, “we are not 

constrained by the district court’s conclusions, but may affirm the district court on 

any legal ground supported by the record”).

IV. DISCUSSION

A. First Amendment Retaliation 

Based on our de novo review, we agree with the district court that Ms. Lucas’s 

First Amendment retaliation claim is barred under Heck and Edwards, but for a 

different reason. In Heck, the Supreme Court addressed the issue of when a prisoner 

may assert a § 1983 claim relating to her conviction or sentence. The Court held: 

[I]n order to recover damages for allegedly unconstitutional conviction or 

imprisonment, or for other harm caused by actions whose unlawfulness 

would render a conviction or sentence invalid, a § 1983 plaintiff must prove 

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that the conviction or sentence has been reversed on direct appeal, 

expunged by executive order, declared invalid by a state tribunal authorized 

to make such determination, or called into question by a federal court’s 

issuance of a writ of habeas corpus.

512 U.S. at 486-87 (footnote omitted). “The purpose behind Heck is to prevent 

litigants from using a § 1983 action, with its more lenient pleading rules, to challenge 

their conviction or sentence without complying with the more stringent exhaustion 

requirements for habeas actions.” Butler v. Compton, 482 F.3d 1277, 1279 

(10th Cir. 2007). 

In Edwards, the Supreme Court applied Heck to prison disciplinary 

proceedings and held that a prisoner may not bring a § 1983 claim challenging a 

disciplinary hearing by seeking damages or declaratory relief when her claim would 

“necessarily imply the invalidity of the punishment imposed” unless she first 

demonstrates that her disciplinary conviction or sentence was previously invalidated. 

520 U.S. at 648. 

Here, Ms. Lucas sought damages under § 1983 for the retaliatory “bogus 

[disciplinary] citation” that resulted in the loss of privileges and good-time credits 

and that extended her stay in the residential facility by twenty-five days. See J.A., 

Vol. II at 330, 335-36. This claim is barred by Heck and Edwards because it 

necessarily implicates the validity of the disciplinary charge and resulting sanctions 

and Ms. Lucas failed to show that the conviction had been invalidated. See also 

Butler, 482 F.3d at 1279 (holding that the conviction that matters under Heck is the 

conviction “tied to the conduct alleged in the § 1983 action”). Ms. Lucas’s claim is 

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precisely the type that Heck mandates should be pursued through a petition for 

habeas corpus and not a § 1983 complaint. 

Nonetheless, Ms. Lucas argues that her § 1983 claim was not barred because 

she no longer had a federal habeas remedy when she was released from the 

residential facility. In particular, she relies on Cohen, 621 F.3d at 1311, which held 

that “a petitioner who has no available remedy in habeas [to challenge the conviction 

and sentence], through no lack of diligence on his part, is not barred by Heck from 

pursuing a § 1983 claim.” Id. at 1317.

3

 

Relying on a trio of unpublished district court cases, the district court 

concluded that although Ms. Lucas was no longer in custody when she was released 

from the residential facility in April 2019 and therefore lacked a habeas remedy, her 

§ 1983 retaliation claim was barred under Heck because she had a post-conviction 

remedy under Colorado law to challenge the disciplinary conviction.4

 See Harper v.

Woodward Cnty. Bd. of Cnty. Comm’rs, No. CIV-11-996, 2016 WL 4487704, at *5 

(W.D. Okla. May 17, 2016), report and recommendation adopted, 2016 WL 4491540 

3 In reaching our holding in Cohen, we relied on the plurality opinion 

in Spencer v. Kemna, 523 U.S. 1, 21 (1998), which concluded “that a former 

prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the 

unconstitutionality of a conviction or confinement without being bound to satisfy a 

favorable-termination requirement that it would be impossible as a matter of law for 

him to satisfy.” 

4 See Colo. Rev. Stat. § 18-1-410(1) (“Notwithstanding the fact that no review 

of a conviction of crime was sought by appeal within the time prescribed therefor, or 

that a judgment of conviction was affirmed upon appeal, every person convicted of a 

crime is entitled as a matter of right to make applications for postconviction 

review.”). 

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(W.D. Okla. Aug. 25, 2016); McFadden v. City of Midwest City, No. CIV-12-1419, 

2014 WL 798013, at *2-3 (W.D. Okla. Feb. 27, 2014); Taylor v. City of Bixby, 

No. 12-CV-0066, 2012 WL 6115051, at *6 (N.D. Okla. Dec. 10, 2012). As 

explained in Harper, “Such a result is consistent with Heck’s purpose, affording the 

state an opportunity to cure any constitutional violations in the first instance.” 

2016 WL 4487704, at *5; accord McFadden, 2014 WL 798013, at *2-3 (noting that 

the remedy available under the Oklahoma Uniform Post-Conviction Procedure Act 

“affords the state an opportunity to cure any [claimed constitutional] violations, 

consistent with Heck’s purpose”). 

But we need not resolve the issue because the § 1983 retaliation claim fails for 

a different reason. Ms. Lucas was still serving her eight-year community corrections 

sentence when she was released from the residential facility, which means that she 

was “in custody” for habeas purposes when she filed the initial complaint.

This issue came to light based on a statement by Ms. Lucas in her opening 

brief that “[t]he requirement that Ms. Lucas spend 25 more days in the residential 

community corrections facility [as a result of the disciplinary conviction] affected 

where she served her community corrections sentence (in a residential facility or in a 

non-residential program) but not how long the sentence ultimately was (eight years).” 

Aplt. Opening Br. at 32. Therefore, it appeared that Ms. Lucas was still “in custody” 

after she was released from the facility and when she filed the complaint on April 30, 

2019. See Maleng v. Cook, 490 U.S. 488, 491 (1989) (“Our interpretation of the 

‘in custody’ language has not required that a prisoner be physically confined in order 

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to challenge his sentence on habeas corpus.”); Jones v. Cunningham, 371 U.S. 236, 

242-43 (1963) (recognizing that a prisoner who had been placed on parole was still 

“in custody” under his unexpired sentence); Mays v. Dinwiddie, 580 F.3d 1136, 1139 

(10th Cir. 2009) (explaining the term custody “encompasses not only individuals 

subject to immediate physical imprisonment, but also those subject to restraints not 

shared by the public generally that significantly confine and restrain freedom”). 

Because this point is dispositive, we ordered supplemental briefing from the 

parties to address: (1) Ms. Lucas’s community corrections sentence, including the 

restrictions, if any, that applied after she was released from the residential facility; 

(2) how Ms. Lucas was prevented from seeking habeas relief between November 

2018, when she was convicted of a disciplinary infraction, and April 2019, when she 

was released from the residential facility; and (3) whether Ms. Lucas was still in 

custody for purposes of habeas relief when she was released from the residential 

facility in April 2019.5

 

5 Ms. Lucas argues that defendants waived any argument about whether she 

was “in custody” because they failed to raise it in the district court or on appeal. 

Although we ordinarily decline to reach the merits of waived issues, “even when a 

party waives an issue, our precedent affords us discretion to raise and decide issues 

sua sponte, even for the purpose of reversing a lower-court judgment, because waiver 

binds only the party, not the court,” Margheim v. Buljko, 855 F.3d 1077, 1088 

(10th Cir. 2017) (brackets, ellipses, and internal quotation marks omitted). Appellate 

review of a waived issue is particularly appropriate when the issue is “a pure matter 

of law and its proper resolution is certain.” Id. (internal quotation marks omitted). 

Because the issue of whether Ms. Lucas was “in custody” for habeas purposes is a 

legal question and the parties had an opportunity to address the issue in supplemental 

briefing, we exercise our discretion to consider the issue sua sponte. 

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In her supplemental brief, Ms. Lucas declined to answer questions one and 

three.6

 As to the first question, she argued that because the record did not disclose 

the specific restrictions that applied after she left the residential facility, this court’s 

only recourse was to order a limited remand for the district court to resolve this issue 

of fact. On question three, Ms. Lucas agreed whether she was in custody for habeas

purposes was a legal question. However, she argued that the answer depended on 

what, if any, restrictions applied after she left the residential facility and, as 

explained in her response to question one, there was no record evidence on the issue. 

But whether a plaintiff is in custody under the federal habeas statutes is a 

question of law that we review de novo. Mays, 580 F.3d at 1138. We can answer 

that question by considering the statutory scheme that implemented and governed 

Ms. Lucas’s nonresidential program, together with the specifics of the Larimer 

County Non-Residential Program. Doing so, we agree with defendants that 

Ms. Lucas was “in custody” for habeas purposes as a matter of law. 

Colo. Rev. Stat. § 17-27-103(6) authorizes a community corrections board to 

establish conditions or guidelines for the conduct and supervision of offenders placed 

by the court in a community corrections program. Larimer County’s community 

corrections guidelines are found at https:www.larimer.gov/cja/comcor/non-res. We 

may take judicial notice of the guidelines. See Van Woudenberg ex rel. Foor v. 

6 On question two, Ms. Lucas agreed that nothing prevented her from filing for 

habeas relief between November 2018, when she was convicted of the disciplinary 

infraction, and April 2019, when she was released from the residential facility. 

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Gibson, 211 F.3d 560, 568 (10th Cir. 2000) (“[T]he court is permitted to take judicial 

notice of . . . facts which are a matter of public record.”), abrogated on other grounds 

by McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001); see also Stan Lee Media, Inc. 

v. Walt Disney Co., 774 F.3d 1292, 1298 n.2 (10th Cir. 2014) (“[T]he court can take 

judicial notice of a fact that is not subject to reasonable dispute because it can be 

accurately and readily determined from sources whose accuracy cannot be reasonably 

questioned.” (ellipses and internal quotation marks omitted)). 

Under Larimer County’s program, individuals, like Ms. Lucas, who are placed 

in the non-residential program are required to maintain stability with their treatment, 

living arrangements, and employment while progressing through levels of 

supervision. These levels include scheduled home visits with case managers for 

clients living in their own residence, individual meetings, medication monitoring,

and substance testing for the duration of their sentence. See

https:www.larimer.gov/cja/comcor/non-res.7

Also, a community corrections program in Colorado is defined as 

a community-based or community-oriented program that provides supervision of an 

offender in either a residential or non-residential capacity. See Colo. Rev. Stat. 

7 In her supplemental brief, Ms. Lucas relies on United States v. Schneider, 

594 F.3d 1219, 1227 (10th Cir. 2010), to argue that we cannot affirm on alternative 

grounds because whether she is “in custody” is not indisputable nor does it appear 

clearly in the record. We disagree. The alternative ground does not go outside the 

record because the statutory scheme and county program clearly impose “restraints 

not shared by the public generally that significantly confine and restrain freedom.” 

Mays, 580 F.3d at 1139. 

 

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§ 17-27-102(3). Relatedly, any offender who “fails to return within the time 

prescribed to any community corrections program . . . or leaves such offender’s 

place of employment . . . shall be deemed to have escaped from custody . . . .” 

Colo. Rev. Stat. § 17-27-106(1)(a). Notably, the Colorado Court of Appeals has 

interpreted this statute to apply to both residential and non-residential community 

placements. See People v. Forester, 1 P.3d 758, 759 (Colo. App. 2000). 

Colorado’s statutory scheme, along with Larimer County’s non-residential 

program, demonstrate that an offender like Ms. Lucas, who is sentenced to 

community corrections and placed in either a residential or non-residential program, 

is deemed to be in the custody of the community corrections program.8

Based on the foregoing, we conclude as a matter of law that Ms. Lucas 

remained “in custody” when she was released from the residential facility into a 

nonresidential program and therefore had a habeas remedy. See, e.g., Mays, 580 F.3d 

at 1138-39. Further, we affirm the district court’s order dismissing Ms. Lucas’s First 

Amendment retaliation claim without prejudice. See Fottler v. United States, 73 F.3d 

1064, 1065 (10th Cir. 1996) (holding that “[w]hen a § 1983 claim is dismissed under 

Heck, the dismissal should be without prejudice”). 

8 Colorado’s criminal escape statute was recently amended to provide that a 

person serving a sentence to community corrections was no longer considered in 

custody or confinement for the purposes of the escape statute. See Colo. Rev. Stat. 

§ 18-8-208(11). However, the amendment was limited to this specific exception to 

the criminal escape statute and did not alter the statutory scheme provided in 

Colo. Rev. Stat. § 17-27-101 et seq. 

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B. Eighth Amendment

For her Eighth Amendment claim, the TAC alleged that LCCC Director Tim 

Hand, Assistant Director Dana Hersch, Mr. Kopp, Team Lead Supervisor Erin 

Caldwell, Ms. Ash, and Ms. Hand, were deliberately indifferent to her serious 

medical needs. “[W]e review the proposed [TAC] complaint de novo to determine 

whether it states a plausible [Eighth Amendment] claim.” Chilcoat, 41 F.4th at 1218. 

Deliberate indifference to a prisoner’s serious medical needs violates the 

Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). There are “two 

types of conduct constituting deliberate indifference” to serious medical needs: 

(1) when a medical professional fails to properly treat a serious medical condition or 

(2) when a prison official prevents an inmate from receiving treatment or denies her 

access to medical personnel capable of evaluating the need for treatment. Sealock v. 

Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). 

A deliberate-indifference claim has two components, one objective and one 

subjective. Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014). The 

objective prong requires the prisoner to show her medical condition was serious 

enough to implicate the Eighth Amendment. See id. This requirement is satisfied if 

her condition was diagnosed by a medical professional as requiring treatment or was 

“so obvious that even a lay person would easily recognize the necessity for a doctor’s 

attention.” Id. at 1192-93 (internal quotation marks omitted). To satisfy the 

subjective prong, the prisoner must show the medical professional knew she faced 

“a substantial risk of serious harm and disregard[ed] that risk by failing to take 

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reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). 

Moreover, to recover damages from each of these defendants under § 1983, 

Ms. Lucas had to show that each defendant personally participated in the alleged 

constitutional violation. See Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 

1185, 1193 (10th Cir. 2007). 

There are no allegations in the TAC that Mr. Hand, Ms. Hersch, Ms. Caldwell, 

Mr. Kopp, or Ms. Hand knew that Ms. Lucas was impeded in her ability to take her 

medication as prescribed. Instead, Mr. Kopp was alleged to have misrepresented to 

law enforcement that Ms. Lucas was diverting her medication to support a substance 

abuse problem, and Ms. Hand allegedly stole some pills and threatened disciplinary 

action against Ms. Lucas if she reported the missing pills. There are no allegations 

that Ms. Hand knew that Ms. Lucas faced a risk of substantial harm if she missed 

some doses or that Ms. Lucas in fact missed any doses as a result of Ms. Hand’s 

conduct in March 2019. Likewise, there are no allegations that Mr. Hand, 

Ms. Hersch, or Ms. Caldwell knew that Ms. Lucas was not receiving her medication 

or that the failure to do so would result in substantial harm. Rather, these defendants 

were alleged to be part of a conspiracy to cover up mismanagement. Therefore, the 

TAC failed to state plausible claims for the denial of medical care or treatment 

against these defendants. 

Only Ms. Ash was alleged to have been involved in Ms. Lucas not receiving 

her prescribed doses when she “refused to change [the] dosing instructions to match 

the prescription that the medication be consumed four times daily.” J.A., Vol. II 

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at 327. According to Ms. Lucas, “[t]he danger of suddenly discontinuing or 

improperly tapering Clonazepam is well-documented in the medical community.” 

Id. at 322 n.1 (emphasis added). However, there are no allegations that Ms. Ash (or 

any other defendant) was a member of the medical community who knew or should 

have known there was a substantial risk of harm to Ms. Lucas if she received only 

three doses of Clonazepam daily. Indeed, Ms. Lucas specifically alleged that 

Ms. Ash “was not a licensed medical professional and was in no way qualified to 

amend prescription medication dosing instructions.” Id. at 326. Thus, when Ms. Ash 

allegedly refused to change the dosing instructions, she did not act with the 

knowledge that taking only three doses a day posed a substantial risk of serious harm 

to Ms. Lucas. While Ms. Ash’s directive may have been ill-advised, “deliberate 

indifference entails something more than mere negligence.” Farmer, 511 U.S. 

at 835. We agree with the district court that none of the allegations in the TAC “give 

rise to an inference that any Defendant acted with a state of mind rising to the level 

of knowing and disregarding an excessive risk to inmate health or safety.” J.A., 

Vol. II at 420 (brackets, ellipsis, and internal quotation marks omitted). 

Having failed four times to state a plausible Eighth Amendment claim, the 

district court properly dismissed the claim with prejudice. 

C. Conspiracy

For a valid § 1983 conspiracy claim, a plaintiff “must plead and prove not only 

a conspiracy, but also an actual deprivation of rights; pleading and proof of one 

without the other will be insufficient.” Dixon v. City of Lawton, 898 F.2d 1443, 1449 

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(10th Cir. 1990). Because Ms. Lucas failed to plead an actual deprivation of her 

constitutional rights under either the First or Eighth Amendments, her conspiracy 

claim also failed. 

V. CONCLUSION

The judgment of the district court is affirmed. 

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

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