UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ROBERT D. BLAUROCK, Plaintiff-Appellant,

v. KANSAS DEPARTMENT OF CORRECTIONS; ROGER WERHOLTZ, Secretary of Corrections, Kansas Department of Corrections, in his official and individual capacity; SAM CLINE, Warden, Hutchinson Correctional Facility, in his offi cial and individual capacity; (FNU) KROEKER, Unit Team Manager, Hutchinson Correctional Facility, in her official and individual capacity; (FNU) HOOKS, Sargent, I.G.U. Supervisor, Hutchinson Correctional Facility, in his offi cial and individual capacity; CORRECT CARE SOLUTIONS, Medical Provider Contracted by the Kansas Department of Corrections; (FNU) BUMGARTNER, Chief Physician, Correct Care Solutions, Hutchinson Correctiona l Facility, in his official and individual capacity; (FNU) GOFF, H.R.N., Assistant to Dr. Bumgartner, Correct Care Solutions, Hutchinson Correctiona l Facility, in his official and individual capacity, Defendants-Appellees. No. 12-3241 (D.C. No. 5:08-CV-03116-SAC) (D. Kan.) FILED United States Court of Appeals Tenth Circuit 

### April 17, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - ORDER AND JUDGMENT *

Before HARTZ , EBEL , and GORSUCH , Circuit Judges.

Robert D. Blaurock, a Kansas state prisoner proceeding pro se and in forma pauperis, appeals the dismissal of his cl aims under 42 U.S.C. § 1983 alleging that various persons at the Hutc hinson Correctional Facili ty (HCF) of the Kansas Department of Corrections (KDOC) viol ated the Eighth Amendment by denying necessary medical care and making him perform work be yond his physical capacity. He also appeals the dismissa l of his amended complaint, in which he attempted to revive claims against prison officials at the Ellsworth Co rrectional Facility (ECF). We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. BACKGROUND Mr. Blaurock sued KDOC and various pr ison officials. He also sued the prison medical care provider, Correct Care Solutions (CCS ), a contractor providing medical care to inmates at Kansas correc tional facilities, and two CCS employees. He alleged that the prison defe ndants were deliberately indiffe rent to injuries that had

* After examining the briefs and appellate record, this pane l 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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.- 3 - been inflicted on him by other inmates at EC F (before his transfer to HCF) and to further injury caused by being required to perform prison work duties beyond his physical capabilities. He al so alleged that he was deni ed adequate medical care in violation of the Ei ghth Amendment. The district court reviewed the complain t before service and determined that it failed to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) (district court may dismiss a case if it determines that the action “fails to state a claim on which relief may be granted”). The court held that (1) the claims against KDOC and the prison personnel in their official capacities were barred by the Eleventh Amendmen t, (2) the complaint failed to allege against Secretary Werholtz and HCF Warden Cline the personal participation necessary for liability, (3) the complaint failed to allege a CCS policy or custom that directly caused a vi olation of Mr. Blaurock’s rights, see Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1216 (10t h Cir. 2003), and (4) th e complaint failed to allege a cognizable Eighth Am endment claim for failure to provide medical care. The court ordered the complaint dismisse d unless Mr. Blaurock filed an amended complaint that co rrected the deficiencies identified by the court. Mr. Blaurock timely filed an amended complaint, in which he renewed his claims based on his medical condition and prison work duties. He also included claims ag ainst prison personnel at ECF based on his treatment there.- 4 - The district court reviewed the amended complaint, first addressing Mr. Blaurock’s claims against those responsib le for his care at ECF. Mr. Blaurock had previously dismissed a se parate action bringing those claims, and by the time he filed the amended complaint in this case, the two-year limi tations period had expired. Accordingly, the district court held that those claims were time-barred. The court further determined that the proposed new cl aims could not relate back under Federal Rule of Civil Procedure 15(c)(1)(B) to when the original complaint was filed, nor could the ECF defendants and claims be a dded under Rules 18 (joinder of claims) or 20 (joinder of parties). The court then evaluated whether the amended complaint cured the deficiencies previously identified in the original complaint, and concluded that it did not, but merely reiterated e ssentially the same al legations. The court therefore dismissed the amended compla int for failure to state a claim under § 1915(e)(2)(B)(ii). Mr. Blaurock appeals. II. DISCUSSION We review de novo the district cour t’s dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim. See Kay v. Bemis , 500 F.3d 1214, 1217 ( 10th Cir. 2007). We accept as true the factual allegations in th e complaint, as well as any reasonable inferences, construing them in the light most favorable to the plaintiff. See id. The complaint must make “specifi c allegations . . . [that] pl ausibly support a legal claim for relief.” Id. at 1218 (internal quota tion marks omitted). Because Mr. Blaurock is- 5 - proceeding pro se, we liberally construe his pleadings. See Knox v. Bland , 632 F.3d 1290, 1292 (10t h Cir. 2011). For substantially the same reasons stated by the district court, we affirm the dismissal of Mr. Blaurock’s claims against KDOC and th e prison officials in their official capacities, his claims based on his treatment at ECF, 1 the claims against CCS, and the claims against Secretary Werholtz and Warden Cline. These rulings involve the straightforward applicat ion of settled law to undisputed facts. The other allegations deserve some additional analysis. As for Mr. Blaurock’s allegations th at prison personnel failed to provide proper medical treatment, we recognize that the conditions of prisoner confinement can create an Eighth Amendment obligation on the state to provide adequate health care for prisoners. See Estelle v. Gamble , 429 U.S. 97, 103 (1976). But a plaintiff must establish “both elements of an Eighth Amendment claim—the objective prong of sufficiently serious deprivation a nd the subjective prong of deliberate indifference.” Gee v. Pacheco , 627 F.3d 1178, 1189 (10th Cir. 2010). To qualify as sufficiently serious, a medica l need must be “one that has been diagnosed by a

1 Even if Mr. Blaurock’s allegations of inadequate medical care at ECF arose from “a common core of operative facts uniting the original and newly asserted claims,” Mayle v. Felix , 545 U.S. 644, 659 (2005) (int ernal quotation marks omitted) (stating standard for relation back under Ru le 15(c)), the amended complaint did not identify any individual who allegedly faile d to provide medical care at ECF. Therefore, Mr. Blaurock cannot obtain reli ef because the amended complaint failed to assert the requisite “pers onal involvement in the allege d constitutional violation.” Gallagher v. Shelton , 587 F.3d 1063, 1069 ( 10th Cir. 2009) (int ernal quotation marks omitted).- 6 - physician as mandating treatme nt or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Id. at 1192 (internal quotation marks omitted). “To prevail on the subjective component, the prisoner must show that the defenda nts knew he faced a substa ntial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it.” Callahan v. Poppell , 471 F.3d 1155, 1159 (10th Cir. 2006) (internal quotation marks omitted). We assume for purposes of resolving this appeal that Mr. Blau rock has alleged the objective component for those claims and we consider whether he has satisfied the subjective component. Mr. Blaurock asserted that Dr. Bumgar tner failed to treat properly his neck, back, and shoulder inju ries sustained at ECF. 2 He alleged that upon his arrival at HCF on May 22, 2007, his vital signs were checked, but his request for an X-ray was declined. He received a neck X-ray on January 14, 2008. Beginning in January 2008, Dr. Bumgartner administered chiropr actic adjustments and prescribed Tylenol, Prednisone, and a steroid injection to treat Mr. Blaurock’s neck in jury and the related pain and numbness. Mr. Blaurock asserted that the chiropractic adjustments were sporadic and the other treatment did not reliev e his symptoms or pain. In addition, he

2 Mr. Blaurock also sued defendant Goff as an assistan t to Dr. Bumgartner. But the only allegation against Mr . Goff is found in the origin al complaint, which was superseded by the amended complaint. See Mink v. Suthers , 482 F.3d 1244, 1254 (10th Cir. 2007) (“[A]n ame nded complaint super[s]edes an original complaint and renders the original complaint without legal effect.” (internal quotation marks omitted)). No claim was st ated against Mr. Goff in the amended complaint.- 7 - alleged that he had requested a medical mattress. By Ma y or June of 2011, however, he had been granted a medical lay-in stat us, a bottom bunk restri ction, permission to refrain from exercise, and a lifting re striction of 10 to 15 pounds. Mr. Blaurock’s claim that he was not treated properly for his neck, back, and shoulder injuries (and the resulting pain ) asserted only a disagreement with Dr. Bumgartner’s choice of tr eatment and, at most, a clai m that the doctor’s actions were negligent. But “a comp laint that a physician has been negligent in diagnosing or treating a medical conditi on does not state a valid clai m of medical mistreatment under the Eighth Amendment.” Callahan , 471 F.3d at 1159 (internal quotation marks omitted). Next, for his claim that he was required to perform work beyond his capabilities, Mr. Blaurock asse rted that his prison job supe rvisor, defendant Kroeker, assigned him a laundry porter job, even though he could not physically do the job and his hernia worsened as a result of his efforts. 3 His allegations that his work assignments violated the Ei ghth Amendment must “show a genuine issue as to the defendants’ culpable state of mind, and an unnecessary and wanton infliction of pain.” Handy v. Price , 996 F.2d 1064, 1067 (10th Cir. 1993). “In the work assignment context, prison offi cials are deliberately indiffe rent when they knowingly

3 Mr. Blaurock also sued defendant H ooks as a prison job supervisor, but, as with Goff, the only allegation against him is found in the original complaint, which was superseded by the amended complaint, and the latter articulated no claims against him. See Mink , 482 F.3d at 1254.- 8 - compel convicts to perform physical labor which is beyond their strength, or which constitutes a danger to their health , or which is unduly painful.” Choate v. Lockhart , 7 F.3d 1370, 1374 (8th Cir. 1993) (internal quotation marks and alte rations omitted). An attachment to Mr. Blau rock’s complaint shows that Ms. Kroeker responded to Mr. Blaurock’s grievance concerning his j ob assignment by pointing out that he had no medical restrictions on work assignmen ts, a statement he does not challenge. Therefore, even if Mr. Blaurock adequately alleged the infliction of pain, he did not raise a genuine issue about Ms. Kroe ker’s culpable state of mind. Finally, there are two allegations in the amended complaint that were not addressed by the district cour t. One is Mr. Blaurock’s allegation that the defendants generally did not respond to his grievances in accordan ce with the prison grievance procedures set forth in Kan. Admin. Re gs. §§ 44-15-101, 102 & 106. It is unclear whether he is seeking relief for violation of the regulations. It appears that he is noting the violations to s upport his assertion that he exhausted administrative remedies. In any event, he is not entitled to relief. None of his claims have been dismissed for failure to exha ust. And his allegations ca nnot support a claim against any defendant because they fa il to assert the requisite “p ersonal involvement in the alleged constitutional violation.” Gallagher v. Shelton , 587 F.3d 1063, 1069 (10th Cir. 2009) (interna l quotation marks omitted); see id. (holding that “a denial of a grievance, by itself without any connection to the viol ation of constitutional rights alleged by plaintiff, does not establish personal partic ipation under § 1983”).- 9 - Therefore, any claim raised by Mr. Blaurock based on errors in grievance procedures was not improperly dismissed. See Dummar v. Lummis , 543 F.3d 614, 618 (10th Cir. 2008) (“We may affirm a dist rict court decision on any gr ounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” (internal quot ation marks omitted)). The other unaddressed allegation is th at Mr. Blaurock was a third-party beneficiary of the contract to provide medi cal services to pris oners between CCS and KDOC, and that he can therefore assert claims for breach of contract for failure to provide him medical care. Th e district court’s omission is inconsequential, however, because this state-law claim “is best le ft for a state court’ s determination.” Brooks v. Gaenzle , 614 F.3d 1213, 1230 (10th Cir. 2010). Generally, “if federal claims are dismissed before trial, leav ing only issues of state la w, the federal court should decline the exercise of [pendent] juri sdiction by dismissing the case without prejudice.” Id. at 1229 (internal quota tion marks and brackets om itted). We direct the district court on remand to dismis s this claim without prejudice. III. CONCLUSION The judgment of the district court is affirmed, but we remand for the district court to modify the judgment to state that Mr. Blaurock’s state-law claim is- 10 - dismissed without prejudice. Mr. Blaurock is reminded of his obligation to continue making partial payments until he has pa id the entire appellate filing fee.

Entered for the Court

Harris L Hartz Circuit Judge