Gilmore v. Vital Core

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 24, 2024
• Docket: 23-3135
• Status: Unpublished

Opinion

Appellate Case: 23-3135 Document: 010110989167 Date Filed: 01/24/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 24, 2024 _________________________________ Christopher M. Wolpert Clerk of Court CHRISTOPHER GILMORE,

Plaintiff - Appellant,

v. No. 23-3135 (D.C. No. 5:23-CV-03113-JWL) VITAL CORE, LLC; (FNU) DeMARCO; (D. Kan.) JENNIFER (LNU); ANNA (LNU); (FNU) NEPH,

Defendants - Appellees. _________________________________

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 Defendant-

Appellee 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-3135 Document: 010110989167 Date Filed: 01/24/2024 Page: 2

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). 2 Appellate Case: 23-3135 Document: 010110989167 Date Filed: 01/24/2024 Page: 3

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

3 Appellate Case: 23-3135 Document: 010110989167 Date Filed: 01/24/2024 Page: 4

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. 4