                                                                FILED
                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                     July 17, 2013

                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

ARTHUR DEAN CONLEY,

       Plaintiff - Appellant,

v.                                                        No. 13-3091
                                                 (D.C. No. 5:11-CV-03200-SAC)
DAVID MCKUNE, Warden, Lansing                               (D. Kan.)
Correctional Facility, in his official and
individual capacity; KYLE DEERE,
Associate Warden, Lansing Correctional
Facility, in his official and individual
capacity; REX PRYOR, Associate Warden,
Lansing Correctional Facility, in his official
and individual capacity; ELLEN BARTZ,
Health Services Administrator, Correct
Care Solutions, Lansing Correctional
Facility in her official and individual
capacity; JOE PANTANO, M-Unit
Counselor, Lansing Correctional Facility, in
his official and individual capacity; KENT
MURRY, Dentist, Correct Care Solutions,
Lansing Correctional Facility, in his official
and individual capacity; BRETT
PETERSON, Lansing Correctional Facility,
in his official and individual capacity; RAY
ROBERTS, Secretary of Corrections, in his
official and individual capacity; SAM
BROWNBACK, Governor, State of
Kansas, in his individual capacity; JERRY
BOYLE, CEO and President, Correct Care
Solutions, in his individual and official
capacity; CORRECT CARE SOLUTIONS,
LLC; FNU BRYAN, Corrections Officer,
Lansing Correctional Facility, in his official
and individual capacity; ANDREW
 PARKS, Unit Team Manager, Lansing
 Correctional Facility, in his official and
 individual capacity; DAVID LAWHORN,
 Regional Medical Director, Correct Care
 Solutions,

           Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Appellant Arthur Dean Conley, a prisoner incarcerated with the Kansas

Department of Corrections (“DOC”), filed a 42 U.S.C. § 1983 action against numerous

defendants alleging constitutional violations stemming from the handling of his dental

care.1 He appeals from a district court order dismissing his complaint and two motions

for a preliminary injunction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm

in part and reverse in part.

       *After examining Appellant’s brief and the 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) and 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.
       1
         Mr. Conley proceeds pro se. Accordingly, we construe his pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.”).

                                             -2-
                                   I. BACKGROUND

       Mr. Conley filed a § 1983 complaint and request for preliminary injunction in

November 2011. After reviewing the 56-page complaint and 251 pages of attached

exhibits, the district court identified multiple failings in the complaint and granted Mr.

Conley leave to amend.

       Mr. Conley filed his amended complaint in September 2012, along with a renewed

motion for a preliminary injunction. He filed a second preliminary injunction motion in

January 2013. The complaint alleged the defendants violated Mr. Conley’s Eighth

Amendment right against cruel and unusual punishment, his right to due process under

the Fourteenth Amendment,2 and his First Amendment right to freedom of expression.

The district court determined Mr. Conley’s amended complaint stated no plausible claim

upon which relief could be granted and dismissed it pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). It also denied Mr. Conley’s motions for preliminary injunction. Mr.

Conley now appeals.

                                     II. DISCUSSION

       We first address the denial of Mr. Conley’s two preliminary injunction motions


       2
         Mr. Conley’s complaint also asserted that the state defendants violated his due
process rights under the Fifth Amendment. But as we explained in Koessel v. Sublette
County Sheriff’s Department, -- F.3d --, 2013 WL 1960568 (10th Cir. May 14, 2013),
allegations of conduct by state authorities provide no basis for a Fifth Amendment claim.
Id. at *9 n.2. Moreover, “because § 1983 imposes liability only for actions taken under
state law, even if there were a federal actor involved there would be no Fifth Amendment
claim under § 1983.” Id. We therefore do not address any Fifth Amendment claim.

                                             -3-
and then turn to whether his § 1983 complaint stated a claim for constitutional violations.

                    A. Denial of Motions for Preliminary Injunction

       The district court denied Mr. Conley’s two motions for a preliminary injunction.

We review the court’s decision for an abuse of discretion. Schrier v. Univ. of Colo., 427

F.3d 1253, 1258 (10th Cir. 2005). Mr. Conley “must show that the district court

committed an error of law (for example, by applying the wrong legal standard) or

committed clear error in its factual findings.” Id. (quotations omitted). We will not

reverse the district court’s decision unless it was “an arbitrary, capricious, whimsical, or

manifestly unreasonable judgment.” Id. (quotations omitted).

       In one motion, Mr. Conley sought not only dental restoration, but also items he

believes are necessary to self-treat his dental condition: medical marijuana, an iPod, a

single cell in a medium security facility, and pornography. At this stage, Mr. Conley has

not shown a substantial likelihood of success on the merits, and the district court’s denial

of the requested injunctive relief was therefore not an abuse of discretion.

       In the second motion, Mr. Conley sought relief to enable him to file documents

electronically with the court while he was confined in segregation at the Lansing

Correctional Facility (“LCF”). Mr. Conley complained about the filing system at LCF

and the personnel in charge of helping him file documents. The district court determined

that Mr. Conley failed to satisfy the preliminary injunction standard and also held that his

motion was moot because he had been transferred out of LCF. We cannot say the denial

of this motion was an abuse of discretion.
                                             -4-
                                  B. Constitutional Claims

       The district court dismissed Mr. Conley’s complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failing to state a plausible constitutional claim upon which relief

could be granted. We review this dismissal as we would a dismissal under Fed. R. Civ.

P. 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).

       Our review is de novo. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.

2012). To avoid dismissal, the “complaint must contain enough allegations of fact, taken

as true, ‘to state a claim to relief that is plausible on its face,’” not merely possible or

conceivable. Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

plaintiff’s use of “mere labels and conclusions” or “a formulaic recitation of the elements

of a cause of action will not suffice,” and the complaint’s “factual allegations [must]

plausibly suggest the defendant is liable.” Id. at 1190-91 (quotations omitted).

       Mr. Conley argues that the district court erred in dismissing his Eighth and

Fourteenth Amendment claims.3 We address these claims in turn.

1. Eighth Amendment

       “To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins,

487 U.S. 42, 48 (1988). Mr. Conley alleges various state defendants violated his right

       3
       Mr. Conley does not appear to dispute the dismissal of his First Amendment
claim. We agree with the district court that this claim should be dismissed.

                                               -5-
against cruel and unusual punishment under the Eighth Amendment. See U.S. Const.

amend. VIII.

       “[T]he treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (citation omitted). The Supreme Court has instructed that the

Eighth Amendment prohibits “unnecessary and wanton infliction of pain,” including

“deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429

U.S. 97, 104 (1976). A prisoner’s serious medical needs may include dental care. Ramos

v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980); see also Penrod v. Zavaras, 94 F.3d 1399,

1405-06 (10th Cir. 1996).

       “The test for constitutional liability of prison officials involves both an objective

and a subjective component.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)

(quotations omitted). First, the prisoner must “produce objective evidence that the

deprivation at issue was in fact ‘sufficiently serious.’” Id. (quoting Farmer, 511 U.S. at

834). “[A] medical [or dental] need is sufficiently serious if it is one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s [or dentist’s] attention.” Id.

(quotations omitted). Second, under the subjective component, the prisoner must

establish deliberate indifference to his serious medical needs by “present[ing] evidence of

the prison official’s culpable state of mind.” Id. He must show that the prison “official

acted or failed to act despite his knowledge of a substantial risk of serious harm.”
                                             -6-
Farmer, 511 U.S. at 842. “The Supreme Court [has] cautioned that ‘an inadvertent

failure to provide adequate medical care’ does not rise to a constitutional violation.”

Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Estelle, 429 U.S. at

105-06).

       a. Objective component

       To survive dismissal, Mr. Conley’s complaint must allege facts showing a serious

dental need. This court has recognized that “considerable pain” may qualify as a

substantial harm under the Eighth Amendment. Mata, 427 F.3d at 751. Similarly, the

Second Circuit has stated that “[a] cognizable claim regarding inadequate dental care,

like one involving medical care, can be based on various factors, such as the pain

suffered by the plaintiff, the deterioration of the teeth due to lack of treatment, or the

inability to engage in normal activities.” Chance v. Armstrong, 143 F.3d 698, 703 (2d

Cir. 1998) (citations omitted). In Chance, allegations of extreme pain, tooth

deterioration, and failure to eat properly were sufficient to show a serious dental

condition at the pleading stage. Id.

       Here, the district court dismissed Mr. Conley’s Eighth Amendment claim, finding

he “relie[d] on his disagreement with the dental procedures routinely provided prisoners”

and that his “own assessment of his condition and the treatment needed is not the proper

basis for a constitutional claim.” Dkt. 84 at 6. The district court’s analysis misinterprets

Mr. Conley’s allegations of a serious dental condition involving chronic pain, the

inability to engage in normal life activities, and the threat of future physical harm.
                                              -7-
       The complaint states that Mr. Conley’s “teeth are overlapped, bucked, crowded

and crooked to the point [he] chew[s] holes on the insides of [his] cheeks causing pain”

and bleeding. Dkt. 68 at 9, 11.4 The complaint describes his pain as intense and chronic.

According to the complaint, the spacing of Mr. Conley’s teeth results in a speech

impediment, clogs his sinuses, and prevents him from correctly chewing food, closing his

mouth, and holding in saliva. Further, “[l]arge food particles get caught between and

behind [his] teeth and . . . dislodge in [his] throat,” causing him to choke. Id. at 9. He

alleges he lives with the constant fear of choking to death in his sleep.

       According to Mr. Conley, prison dentist and Defendant Dr. Murry told him during

a dental appointment that he needed cosmetic restoration or braces, that his issues were

related to orthodontics, and that treatment was beyond Dr. Murry’s capabilities. Mr.

Conley alleges that at a later meeting with LCF officials, Dr. Murry stated that Mr.

Conley needed cosmetic restorative dental procedures to “preserve [his] life.” Mr.

Conley received no orthodontic care and alleges he was told such care was not allowed,

even though DOC Internal Management Policy and Procedure 10-115 (“IMPP 10-115”)

allows for orthodontic care in some circumstances. Aplt. Br. Attach. 1.

       We conclude the complaint alleges objective evidence that Mr. Conley’s dental

condition is sufficiently serious to raise Eighth Amendment concerns.

       b. Subjective component

       4
        Citations to the amended complaint refer to the document page number rather
than Mr. Conley’s own pagination.

                                             -8-
       Under the subjective component, Mr. Conley “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.” Martinez, 563 F.3d at 1089. Mr. Conley’s complaint

satisfies this standard.

       Mr. Conley alleges that he mailed a letter to Defendants McKune, Deere, Pryor,

Bartz, Pantano, Murry, Peterson, Roberts, and Brownback explaining his dental condition

and constant pain. Further, he alleges that LCF officials who received this letter held a

meeting where Dr. Murry informed them that Mr. Conley required restorative dental

procedures to “preserve [his] life.” Dkt. 68 at 21. Mr. Conley alleges that Defendant

Bartz stated the recommended procedure was too controversial and expensive, that Mr.

Conley should never have been told of his need for such treatment, and that informing

him he needed procedures armed him with “evidence.” Id.

       Mr. Conley further alleges that after filing a grievance with Defendants Parks and

McKune, Defendant Parks told Mr. Conley he would be sent to a “max facility” if he

continued complaining about his dental issues. Id. at 23.5 According to Mr. Conley,

Defendant McKune stated he would not help resolve the dental problems because Mr.

Conley had complained to the governor about his condition. Mr. Conley alleges that


       5
         Mr. Conley alleges he filed multiple grievances over the denial of dental
treatment. We do not discuss whether Mr. Conley has exhausted his administrative
remedies, as required under the Prison Litigation and Reform Act, 42 U.S.C. § 1997e et
seq., because exhaustion is an affirmative defense, not a pleading requirement. See Jones
v. Bock, 549 U.S. 199, 212-17 (2007).

                                            -9-
Defendants Parks and McKune each instructed him to stop complaining and that both

said they hoped Mr. Conley would choke to death, which appears to be a reference to Mr.

Conley’s claim that his dental condition causes him to choke on food particles.

       Mr. Conley alleges that Defendant Bryan threatened him for filing grievances and

said the “warden” (Defendant McKune) and Defendant Parks had mentioned “something

about braces” and wanted Mr. Conley “out of here.” Id. at 25. Mr. Conley alleges

Defendant Bryan wrote disciplinary reports in retaliation for Mr. Conley’s complaints,

resulting in his being sent to “lockdown” at a maximum security facility. Id.

                                      *      *       *

       In short, the complaint alleges that Mr. Conley suffers a serious dental condition

and that certain defendants knew of this condition, purposely denied him treatment to

correct the condition, and retaliated against him for filing grievances. His allegations,

taken as true at this stage, state a plausible Eighth Amendment claim. Dismissal of this

claim was error.

       We recognize that much of Mr. Conley’s complaint is irrelevant to the Eighth

Amendment analysis. His allegations that his dental condition has lowered his self-

esteem and caused him to envy individuals with straight, white teeth fail to state a serious

condition under the Eighth Amendment. Nor do his allegations of complications with his

body hair and sexual orientation state a plausible constitutional violation. Further, Mr.

Conley alleges he has been denied access to items he needs to self-treat his dental

condition, including medical marijuana, an iPod, a laptop, unlimited access to digital
                                            -10-
music, and pornography. Mr. Conley has failed to show that denial of these items

constitutes cruel and unusual punishment. Going forward, the focus of Mr. Conley’s

Eighth Amendment claim should be on the alleged denial of orthodontic or other

specialized dental care to correct a serious dental condition.

       c. Individual defendants

       Finally, for Mr. Conley’s § 1983 claim under the Eighth Amendment to succeed

against any defendant, he “must show personal involvement or participation in the

incident.” Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996). Because “§ 1983

imposes liability for a defendant’s own actions[,] personal participation in the specific

constitutional violation complained of is essential.” Henry v. Storey, 658 F.3d 1235,

1241 (10th Cir. 2011); see also Schneider v. City of Grand Junction Police Dep’t, -- F.3d

--, 2013 WL 2421071, at * 5 (10th Cir. June 5, 2013).

       Mr. Conley has failed to allege facts showing personal involvement of Defendants

Brownback, Roberts, Boyle, and Lawhorn. His formulaic recitation that these defendants

knew of his condition and were deliberately indifferent to it fails to demonstrate an

affirmative link to the alleged constitutional violation.

       The complaint also fails to state a claim against Correct Care Solutions, LLC

(“CCS”). Mr. Conley essentially alleges that this corporation, which contracts with the

DOC to provide dental care, is vicariously liable for the acts of its employees. Apart

from whether CCS is a state actor, vicarious liability is not a basis for a § 1983 claim

against a corporate defendant. DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d
                                             -11-
714, 722-23 (10th Cir. 1988). In addition, to the extent Mr. Conley alleges CCS is liable

as a supervisor, he has not plausibly alleged that it authorized, supervised, caused, or

participated in the alleged cruel and unusual punishment. See Snell v. Tunnell, 920 F.2d

673, 700 (10th Cir. 1990).

       Although Dr. Murry was personally involved in Mr. Conley’s dental care, the

complaint fails to state a claim against him. Rather than being deliberately indifferent to

Mr. Conley’s condition, Dr. Murry allegedly informed LCF officials of the need to

provide him with restorative care.

       As to Defendants McKune, Deere, Pryor, Parks, Pantano, Peterson, and Bartz,6 the

complaint alleges each attended a meeting where they were informed of Mr. Conley’s

serious condition and where it was determined he would not be provided the

recommended dental services. At this stage, these allegations show personal

participation by showing these defendants “knew [Mr. Conley] faced a substantial risk of

harm and disregarded that risk, by failing to take reasonable measures to abate it.”

Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotations omitted). In

addition, Mr. Conley has alleged actions and statements by these defendants that suggest

an intentional unwillingness to address his dental condition.

       Finally, with respect to Defendant Bryan, the complaint alleges he knew of Mr.


       6
        Mr. Conley’s complaint alleges that Defendant Bartz is “an employee of the state
who is [also] the manager of [Correct Care Solutions] [c]ontracted personnel.” Dkt. 68 at
3. This allegation is sufficient to show she is a state actor for § 1983 purposes.

                                            -12-
Conley’s condition and retaliated against him by filing disciplinary reports to remove him

from LCF. This is sufficient to show personal participation in the alleged constitutional

violation.

2. Fourteenth Amendment

       a. Procedural due process

       The district court determined Mr. Conley failed to state a procedural due process

claim under the Fourteenth Amendment. We affirm the dismissal of this claim.

       “The first step in assessing a claimed procedural due process violation is to

identify a constitutionally protected liberty or property interest. A liberty interest can

either inhere in the Due Process clause or it may be created by state law.” Elwell v.

Byers, 699 F.3d 1208, 1213 (10th Cir. 2012) (quotations omitted). “For state law to

create a liberty interest, it must establish substantive predicates to govern official

decisionmaking and mandate an outcome when relevant criteria have been met.” Id. If a

state policy “does not guarantee a particular substantive outcome, it does not confer a

protected liberty interest.” Id.

       Mr. Conley’s complaint identifies DOC policies—in particular IMPP 10-115—as

creating a liberty interest in orthodontic care. We agree with the district court that the

policies Mr. Conley has identified do not create a liberty interest.

       IMPP 10-115 identifies the procedure that medical and dental personnel follow to

determine whether “orthodontic devices and other aids to impairment may be provided.”

Aplt. Br. Attach. 1 (emphasis added). But “an expectation of receiving process is not,
                                             -13-
without more, a liberty interest protected by the Due Process Clause.” Elliott v. Martinez,

675 F.3d 1241, 1246 (10th Cir. 2012) (quotations omitted). Further, the use of “may” in

IMPP 10-115 does not create an unqualified right to orthodontic treatment giving rise to a

liberty interest. See Riddle v. Mondragon, 83 F.3d 1197, 1206-07 (10th Cir. 1996);

Roberts v. Spalding, 783 F.2d 867, 871-72 (9th Cir. 1986). IMPP 10-116, another policy

Mr. Conley asserts creates a liberty interest, similarly outlines the process for routine

dental examinations and consultations with dental specialists. An entitlement to

procedure does not give rise to a liberty interest.

       b. Substantive due process

       Mr. Conley also asserts that the defendants violated his substantive due process

rights under the Fourteenth Amendment. However, we have previously declined to

review a substantive due process argument where a prisoner’s claim of the denial of

medical treatment was more accurately asserted under the Eighth Amendment. See

Riddle, 83 F.3d at 1202 (“[W]here constitutional protection is afforded under specific

constitutional provisions, alleged violations of the protection should be analyzed under

those provisions and not under the more generalized provisions of substantive due

process.”). Having analyzed Mr. Conley’s Eighth Amendment claim, we similarly

decline to address his substantive due process claim.

                                    III. CONCLUSION

       We affirm the district court’s denial of Mr. Conley’s motions for a preliminary

injunction and its dismissal of his procedural due process claim. We affirm the district
                                             -14-
court’s dismissal of Mr. Conley’s Eighth Amendment claim as to Defendants

Brownback, Roberts, Boyle, Lawhorn, Murry, and Correct Care Solutions. As to the

remaining defendants, we reverse the dismissal of Mr. Conley’s Eighth Amendment

claim alleging deliberate indifference to his serious dental needs.7

           Finally, we grant Mr. Conley’s motion to proceed in forma pauperis and remind

him that he must continue making partial payments until the filing fees he owes are paid

in full.

                                            ENTERED FOR THE COURT



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




           7
         Mr. Conley sued the defendants in their official and individual capacities. We
leave to the district court on remand whether the official capacity claims survive Eleventh
Amendment concerns because he alleges an ongoing violation of federal law and seeks
injunctive relief. See Ex parte Young, 209 U.S. 123, 157 (1908); Muscogee (Creek)
Nation v. Pruitt, 669 F.3d 1159, 1166-67 (10th Cir. 2012).
       In dismissing Mr. Conley’s complaint, the district court ruled that his motion for
appointment of counsel was moot. Mr. Conley challenges that decision on appeal. We
decline to address this issue, although Mr. Conley may renew the motion in the district
court on remand.

                                             -15-
