UNITED STATES COURT 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 official 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 official and individual 

capacity; CORRECT CARE 

SOLUTIONS, Medical Provider 

Contracted by the Kansas Department of 

Corrections; (FNU) BUMGARTNER, 

Chief Physician, Correct Care Solutions, 

Hutchinson Correctional Facility, in his 

official and individual capacity; 

(FNU) GOFF, H.R.N., Assistant to 

Dr. Bumgartner, Correct Care Solutions, 

Hutchinson Correctional 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
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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 claims under 42 U.S.C. § 1983 alleging that 

various persons at the Hutchinson Correctional Facility (HCF) of the Kansas 

Department of Corrections (KDOC) violated the Eighth Amendment by denying 

necessary medical care and making him perform work beyond his physical capacity. 

He also appeals the dismissal of his amended complaint, in which he attempted to 

revive claims against prison officials at the Ellsworth Correctional Facility (ECF). 

We have jurisdiction under 28 U.S.C. § 1291 and affirm. 

 I. BACKGROUND 

 Mr. Blaurock sued KDOC and various prison officials. He also sued the 

prison medical care provider, Correct Care Solutions (CCS), a contractor providing 

medical care to inmates at Kansas correctional facilities, and two CCS employees. 

He alleged that the prison defendants were deliberately indifferent to injuries that had 

 

* 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 

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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been inflicted on him by other inmates at ECF (before his transfer to HCF) and to 

further injury caused by being required to perform prison work duties beyond his 

physical capabilities. He also alleged that he was denied adequate medical care in 

violation of the Eighth Amendment. 

 The district court reviewed the complaint 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 Amendment, (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 violation of Mr. Blaurock’s rights, see Dubbs v. Head 

Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003), and (4) the complaint failed to 

allege a cognizable Eighth Amendment claim for failure to provide medical care. 

The court ordered the complaint dismissed unless Mr. Blaurock filed an amended 

complaint that corrected 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 against prison personnel 

at ECF based on his treatment there. 
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 The district court reviewed the amended complaint, first addressing 

Mr. Blaurock’s claims against those responsible for his care at ECF. Mr. Blaurock 

had previously dismissed a separate action bringing those claims, and by the time he 

filed the amended complaint in this case, the two-year limitations period had expired. 

Accordingly, the district court held that those claims were time-barred. The court 

further determined that the proposed new claims 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 added 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 essentially the same allegations. The court 

therefore dismissed the amended complaint for failure to state a claim under 

§ 1915(e)(2)(B)(ii). Mr. Blaurock appeals. 

 II. DISCUSSION 

 We review de novo the district court’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 the complaint, as well as any reasonable 

inferences, construing them in the light most favorable to the plaintiff. See id. The 

complaint must make “specific allegations . . . [that] plausibly support a legal claim 

for relief.” Id. at 1218 (internal quotation marks omitted). Because Mr. Blaurock is 
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proceeding pro se, we liberally construe his pleadings. See Knox v. Bland, 632 F.3d 

1290, 1292 (10th Cir. 2011). 

 For substantially the same reasons stated by the district court, we affirm the 

dismissal of Mr. Blaurock’s claims against KDOC and the 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 application of settled law to undisputed facts. The other 

allegations deserve some additional analysis. 

 As for Mr. Blaurock’s allegations that 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 and the subjective prong of deliberate 

indifference.” Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010). To qualify as 

sufficiently serious, a medical 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) (internal quotation marks omitted) 

(stating standard for relation back under Rule 15(c)), the amended complaint did not 

identify any individual who allegedly failed to provide medical care at ECF. 

Therefore, Mr. Blaurock cannot obtain relief because the amended complaint failed 

to assert the requisite “personal involvement in the alleged constitutional violation.” 

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (internal quotation marks 

omitted). 
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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.” Id. at 1192 (internal 

quotation marks omitted). “To prevail on the subjective component, the prisoner 

must show that the defendants knew he faced a substantial 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. Blaurock has alleged the 

objective component for those claims and we consider whether he has satisfied the 

subjective component. 

 Mr. Blaurock asserted that Dr. Bumgartner failed to treat properly his neck, 

back, and shoulder injuries 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 chiropractic adjustments and prescribed Tylenol, 

Prednisone, and a steroid injection to treat Mr. Blaurock’s neck injury and the related 

pain and numbness. Mr. Blaurock asserted that the chiropractic adjustments were 

sporadic and the other treatment did not relieve his symptoms or pain. In addition, he 

 

2

 Mr. Blaurock also sued defendant Goff as an assistant to Dr. Bumgartner. But 

the only allegation against Mr. Goff is found in the original complaint, which was 

superseded by the amended complaint. See Mink v. Suthers, 482 F.3d 1244, 1254 

(10th Cir. 2007) (“[A]n amended complaint super[s]edes an original complaint and 

renders the original complaint without legal effect.” (internal quotation marks 

omitted)). No claim was stated against Mr. Goff in the amended complaint. 
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alleged that he had requested a medical mattress. By May or June of 2011, however, 

he had been granted a medical lay-in status, a bottom bunk restriction, permission to 

refrain from exercise, and a lifting restriction 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 treatment and, at most, a claim that the doctor’s actions 

were negligent. But “a complaint that a physician has been negligent in diagnosing 

or treating a medical condition does not state a valid claim 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 asserted that his prison job supervisor, 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 Eighth 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 officials are deliberately indifferent when they knowingly 

 

3

 Mr. Blaurock also sued defendant Hooks 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. 
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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 alterations omitted). 

An attachment to Mr. Blaurock’s complaint shows that Ms. Kroeker responded to 

Mr. Blaurock’s grievance concerning his job assignment by pointing out that he had 

no medical restrictions on work assignments, 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. Kroeker’s culpable state of mind. 

 Finally, there are two allegations in the amended complaint that were not 

addressed by the district court. One is Mr. Blaurock’s allegation that the defendants 

generally did not respond to his grievances in accordance with the prison grievance 

procedures set forth in Kan. Admin. Regs. §§ 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 support 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 exhaust. And his allegations cannot support a claim against 

any defendant because they fail to assert the requisite “personal involvement in the 

alleged constitutional violation.” Gallagher v. Shelton, 587 F.3d 1063, 1069 

(10th Cir. 2009) (internal quotation marks omitted); see id. (holding that “a denial of 

a grievance, by itself without any connection to the violation of constitutional rights 

alleged by plaintiff, does not establish personal participation under § 1983”). 
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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 district court decision on any grounds for which there is a 

record sufficient to permit conclusions of law, even grounds not relied upon by the 

district court.” (internal quotation marks omitted)). 

 The other unaddressed allegation is that Mr. Blaurock was a third-party 

beneficiary of the contract to provide medical services to prisoners between CCS and 

KDOC, and that he can therefore assert claims for breach of contract for failure to 

provide him medical care. The district court’s omission is inconsequential, however, 

because this state-law claim “is best left 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, leaving only issues of state law, the federal court should 

decline the exercise of [pendent] jurisdiction by dismissing the case without 

prejudice.” Id. at 1229 (internal quotation marks and brackets omitted). We direct 

the district court on remand to dismiss 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 

 
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dismissed without prejudice. Mr. Blaurock is reminded of his obligation to continue 

making partial payments until he has paid the entire appellate filing fee. 

 Entered for the Court 

 Harris L Hartz 

 Circuit Judge