UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

KEVIN CALLEN, SR., 

 Plaintiff - Appellant, 

v. 

WYOMING DEPARTMENT OF 

CORRECTIONS; ROBERT O. 

LAMPERT, Director, Wyoming 

Department of Corrections; WYOMING 

STATE PENITENTIARY; WYOMING 

MEDIUM CORRECTIONAL 

INSTITUTION; STEVE HARGETT, 

Warden, Wyoming Department of 

Corrections Medium Correctional 

Institution; WYOMING DEPARTMENT 

OF CORRECTIONS MEDICAL 

DEPARTMENT; JOHN COYLE, MD -

Physician, Wyoming State Penitentiary 

Health Services; CORIZON HEALTH, 

INC.; TED CHURCH, Physician, 

Wyoming Department of Corrections 

Medium Correctional Institution Health 

Services; HANS, Physician, Wyoming 

Department of Corrections Medium 

Correctional Institution Health Services; 

J.C. LAWSON, Wyoming Department of 

Corrections Parole Officer; PATRICK 

ANDERSON, Wyoming Department of 

Corrections, Board of Parole Executive 

Director; ANNE CYBULSKISANDLIAN, Wyoming Department of 

Corrections Health Services Program 

Manager; JEFF SHANAHAN, Wyoming 

Department of Corrections Medium 

Correctional Institution Health Service 

Administrator; KURT JOHNSON, 

Wyoming Department of Corrections 

No. 14-8057 

(D.C. No. 2:13-CV-00187-ABJ) 

(D. Wyo.)

FILED 

United States Court of Appeals 

Tenth Circuit 

March 30, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Medium Correctional Institution Health 

Services Regional Manager; WYOMING 

DEPARTMENT OF CORRECTIONS 

MEDICAL STAFF; WYOMING 

DEPARTMENT OF CORRECTIONS 

MEDIUM CORRECTIONAL 

INSTITUTION MEDICAL STAFF, 

individually, and in their official 

capacities, 

 Defendants - Appellees. 

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges. 

 

 Kevin Callen, Sr., proceeding pro se, appeals from the district court’s 

dismissal with prejudice of his 42 U.S.C. § 1983 civil rights action. Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm in part, vacate in part, and remand. 

 We agree with the district court that dismissal with prejudice is appropriate for 

claims that cannot proceed for various legal reasons. We also agree with the district 

court that a claim in the nature of malicious prosecution is barred by Heck v. 

Humphrey, 512 U.S. 477 (1994), but we remand with instructions for the district 

 

*

 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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court to modify its judgment to a dismissal without prejudice on that claim. Finally, 

with regard to those claims the district court dismissed for failure to allege sufficient 

facts, we vacate and remand for the district court to give Mr. Callen the opportunity 

to seek leave to file an amended complaint, as required by this court’s precedent. 

Background 

 Mr. Callen is an inmate in the Wyoming Department of Corrections (WDOC) 

with numerous serious health conditions, including cancer, diabetes, and dental 

problems. He was released on medical parole in 2011, but that parole was revoked in 

2012, and he was re-incarcerated. In August 2013, he filed a complaint regarding his 

medical treatment while in WDOC’s custody. The complaint also alleged a parole 

officer had committed perjury in his parole revocation hearing. The defendants filed 

three motions to dismiss: one for Corizon Health, Inc. (Corizon), the entity 

contracted to provide health services in Wyoming prisons, and two of its employees; 

one for WDOC, its prisons, and its employees; and one for John Coyle, D.O. 

 After defendants filed their motions, Mr. Callen supplemented his complaint 

with additional allegations about his medical treatment. The district court accepted 

the supplement and allowed defendants to supplement their motions to dismiss. In a 

comprehensive order, the district court then granted judgment to defendants under 

Fed. R. Civ. P. 12(b)(6). The court held that several claims were barred by various 

legal doctrines, including the applicable statute of limitations, Eleventh Amendment 

immunity, qualified immunity, Heck v. Humphrey, and the Wyoming Governmental 

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Claims Act (WGCA), Wyo. Stat. Ann. §§ 1–39–101 to 1–39–121. It further held that 

Mr. Callen had failed to attribute any acts to the WDOC-associated individual 

defendants, and that he had failed to plead sufficient facts to establish deliberate 

indifference on the part of the Corizon-associated defendants. The district court 

dismissed the entire complaint with prejudice. 

Analysis 

Legal Standards 

 We review a Rule 12(b)(6) dismissal de novo. See Gee v. Pacheco, 627 F.3d 

1178, 1183 (10th Cir. 2010). Under the Supreme Court’s decisions in Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), 

federal pleading “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Gee, 627 F.3d at 1184 (internal quotation marks omitted). 

“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.” Iqbal, 

556 U.S. at 678 (internal quotation marks omitted). “The plausibility standard is not 

akin to a probability requirement, but it asks for more than a sheer possibility that a 

defendant has acted unlawfully. Where a complaint pleads facts that are merely 

consistent with a defendant’s liability, it stops short of the line between possibility 

and plausibility of entitlement to relief.” Id. (citation and internal quotation marks 

omitted). 

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 “Iqbal establishes the importance of context to a plausibility determination.” 

Gee, 627 F.3d at 1185. In the context of § 1983 claims, which “often include the 

government agency and a number of government actors sued in their individual 

capacities,” we have stated that it is “particularly important . . . 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.” Robbins v. Oklahoma, 

519 F.3d 1242, 1249-50 (10th Cir. 2008). 

Discussion 

 The district court correctly held that: (1) § 1983 does not allow Mr. Callen to 

pursue claims of vicarious liability; (2) Corizon’s alleged failure to pay medical bills 

did not establish a deprivation of a liberty or property interest, as required to state a 

claim under § 1983; (3) the allegations against Dr. Coyle are barred by the statute of 

limitations; (4) Mr. Callen could not proceed with allegations that established only 

his disagreement with a doctor’s medical decision; (5) the claims against WDOC, the 

WDOC prisons, and the WDOC employees in their official capacities for monetary 

damages are barred by the Eleventh Amendment; and (6) the state-law claims are 

barred by the WGCA. We therefore affirm the dismissal with prejudice of those 

claims for substantially the reasons set forth in the district court’s order filed on 

July 2, 2014. 

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 The district court also correctly held that Mr. Callen’s malicious-prosecution 

claim against the parole officer is barred by Heck v. Humphrey, and we affirm the 

dismissal of that claim for substantially the reasons set forth in the July 2, 2014, 

order. But Heck-based dismissals should be without prejudice, rather than with 

prejudice. See Fottler v. United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996). 

Therefore, we remand this claim for the district court to modify its judgment to 

reflect a dismissal without prejudice. 

 Finally, the district court dismissed several claims on the ground that 

Mr. Callen had not alleged sufficient facts to state a plausible claim for relief. For 

the Corizon defendants, these claims included allegations about (1) Dr. Hans’ 

prescription of Prozac; (2) Dr. Kurt Johnson’s involvement with Mr. Callen’s 

dentures and the replacement of his defibrillator batteries; and (3) Corizon’s policies 

and practices, and how such policies and practices would relate to Mr. Callen’s 

alleged injuries. For the WDOC defendants, the district court determined that 

Mr. Callen had failed (1) to set forth any factual allegations involving the individual 

WDOC employees, including allegations that would show that the those employees 

prevented him from receiving medical treatment; and (2) to identify any clearly 

established constitutional right that defendants had violated. The district court also 

noted that Mr. Callen had not set forth any facts relevant to finding an exception to 

Eleventh Amendment immunity under Ex Parte Young, 209 U.S. 123 (1908). We 

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agree with the district court that, as presented, the claims failed to set forth sufficient 

factual allegations to state a plausible claim for relief. 

 We disagree, however, with the district court’s dismissal of these claims with 

prejudice. “‘[D]ismissal 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 

(quoting Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001)). “‘The plaintiff 

whose factual allegations are close to stating a claim but are missing some important 

element that may not have occurred to him, should be allowed to amend his 

complaint.’” Id. (brackets omitted) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 

(10th Cir. 1991)). There is no indication that the district court considered allowing 

Mr. Callen to amend his complaint, or that it determined that any opportunity to 

amend would be futile. Therefore, as directed by Gee, we remand for the district 

court to allow Mr. Callen an opportunity to seek leave to file an amended complaint 

that satisfies federal pleading standards for those claims that were dismissed for 

insufficient factual allegations (meaning, Mr. Callen is not free to amend his 

allegations regarding those claims that the district court dismissed on other grounds 

and that this court has affirmed in this decision). See id. “The district court may 

place appropriate restrictions on any amended complaint, such as directing 

[Mr. Callen] only to elaborate on the events that were identified in his original 

complaint [and supplement], and not to attempt to add any additional or different 

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claims.” Id. And Mr. Callen is cautioned that any amended complaint must “make 

clear exactly who is alleged to have done what to whom, to provide each [defendant] 

with fair notice as to the basis of the claims against him or her [or it], as 

distinguished from collective allegations . . . .” Robbins, 519 F.3d at 1250. 

Conclusion 

 The judgment of the district court is affirmed in part, vacated in part, and 

remanded. This matter is remanded to the district court for its modification of its 

judgment on the Heck-barred claim to a dismissal without prejudice, and for the 

district court to allow Mr. Callen an opportunity to seek leave to amend with regard 

to those claims that were dismissed for failure to plead sufficient facts to establish a 

plausible claim for relief. 

 Entered for the Court 

 Mary Beck Briscoe 

 Chief Judge 

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