UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHRISTOPHER GILMORE, 

 Plaintiff - Appellant, 

v. 

VITAL CORE, LLC; (FNU) DeMARCO; 

JENNIFER (LNU); ANNA (LNU); (FNU) 

NEPH, 

 Defendants - Appellees. 

No. 23-3135 

(D.C. No. 5:23-CV-03113-JWL) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BACHARACH, KELLY, and MORITZ, Circuit Judges.**

_________________________________ 

Plaintiff-Appellant Christopher Gilmore, appearing pro se, appeals from the 

district court’s judgment dismissing his claims for excessive force, deliberate 

indifference to serious medical needs, and a failure to train regarding DefendantAppellee Vital Core, LLC. Gilmore v. Vital Core, LLC, No. 23-3113, 2023 WL 

4637412 (D. Kan. July 20, 2023). On appeal, he argues that the district court did not 

* This order and judgment is not binding precedent, except under the doctrines 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. ** 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 24, 2024

Christopher M. Wolpert 

Clerk of Court

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include in its decision the facts in his complaint, his case citations, and his responses, 

all of which satisfied the requirement of a short and plain statement of the facts. See 

Fed. R. Civ. P. 8(a)(1). He also argues that the district court should have ordered a 

Martinez report as it did in another case.1

We take the well-pleaded facts contained in the complaint as true and in the 

light most favorable to Mr. Gilmore. Young v. Davis, 554 F.3d 1254, 1256 (10th 

Cir. 2009). Mr. Gilmore currently resides at Larned State Hospital, a psychiatric 

facility. In 2022, he was a civilly committed patient in the custody of the Sedgwick 

County Jail. On December 2, 2022, Mr. Gilmore sought treatment for breathing 

difficulties resulting from his dentures and the jail-mandated denture adhesive. 

Some of the claims in this case overlap with those in Gilmore v. Neph, No. 23-

3134, in which we reversed the judgment only insofar as the single claim raised on 

appeal: dismissal of Mr. Gilmore’s excessive force claim regarding his trip to the jail 

medical clinic. Gilmore v. Neph, No. 23-3134, 2024 WL 48989 (10th Cir. Jan. 4, 

2024). We follow the same course here — on remand the district court should 

consider the excessive force claim in light of that disposition. We affirmed the 

district court’s judgment in No. 23-3134 in all other respects, so Mr. Gilmore cannot 

raise the same claims in this case. 

We review a dismissal under Federal Rule of Civil Procedure 12(b)(6) 

pursuant to 28 U.S.C. § 1915A(b)(1) de novo, asking whether the complaint has 

1

 We disagree. Each case turns on its own facts, and a Martinez report is not 

always required. See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). 

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sufficient facts to yield a claim that is plausible on its face. See Young, 554 F.3d at 

1256. To state a claim for deliberate indifference to serious medical needs, a pretrial 

detainee must allege an objective component and a subjective component. Lucas v. 

Turn Key Health Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023). The subjective 

component requires the defendant to be “aware of the facts from which the inference 

of a substantial risk of serious harm could be drawn and also draw that inference.” 

Id. at 1137. The district court dismissed Mr. Gilmore’s claim concerning deliberate 

indifference to serious medical needs because he could not show that any defendant 

was aware of facts indicating a substantial risk of serious harm regarding his ongoing 

lack of access to chronic-care breathing treatments, and then drew the necessary 

inference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). The district court 

noted that Mr. Gilmore had complained of breathing problems associated with 

denture issues, not asthma, and that he had been taken off chronic-care breathing 

treatments prior to December 2, 2022, the date of the incident involving the excessive 

force claim. 

Though Mr. Gilmore indicates that he needed the breathing treatment for 

objectively serious medical needs, asthma and sarcoidosis, we read the district 

court’s order as involving the subjective component of the claim. Although Mr. 

Gilmore later disclaimed any reliance on his problems with denture adhesives, the 

district court correctly focused on the gravamen of his claims — the actions 

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occurring on December 2 — and reasonably concluded that the facts did not 

demonstrate deliberate indifference.2

We also agree with the district court that Mr. Gilmore’s reliance on state-law 

claims or operational regulations and policies does not provide federal claims. See 

West v. Atkins, 487 U.S. 42, 48 (1988) (§ 1983 claims must involve a violation of a 

federal constitutional right under color of state law). Insofar as Mr. Gilmore alleges 

that Vital Core is attempting to cut costs by reducing care and failing to train its 

employees, such allegations lack the necessary facts to state a plausible claim and we 

affirm based on the lack of adequate facts tending to show a constitutional violation, 

let alone causation. See Lucas, 58 F.4th at 1144. 

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings 

consistent with this order and judgment. We GRANT Mr. Gilmore’s motion to 

proceed on appeal without prepayment of fees or costs, and remind him that he is 

responsible for the full amount of the filing fee.3

 

Entered for the Court 

Paul J. Kelly, Jr. 

Circuit Judge 

2

 We reiterate that Mr. Gilmore brought similar claims in Gilmore v. Neph, 22-

3316, which the district court dismissed, and this court affirmed the dismissal as to 

those claims. Gilmore v. Neph, No. 22-3316, 2023 WL 3040452, at *6–7 (D. Kan. 

Apr. 21, 2023), aff’d in part, rev’d in part, No. 23-3134, 2024 WL 48989 (10th Cir. 

Jan. 4, 2024). 

3

 Mr. Gilmore has submitted a “Supplemental Affidavit” claiming that the 

Sedgwick County Sheriff’s Department has stolen from funds to be used to satisfy 

PLRA assessments. We do not consider materials not before the district court. 

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