                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                            December 23, 2005
                        FOR THE TENTH CIRCUIT
                                                               Clerk of Court

EDWARD CHARLES FRANKLIN,

            Plaintiff-Appellant,

v.                                               No. 05-3166
                                         (D.C. No. 03-CV-3090-GTV)
KANSAS DEPARTMENT OF                               (D. Kan.)
CORRECTIONS; ROGER
WERHOLTZ, Secretary, Kansas
Department of Corrections, in his
individual capacity; DAVID R.
MCKUNE, Warden, Lansing
Correctional Facility; L. E. BRUCE,
Warden, Hutchinson Correctional
Facility; KANSAS CORRECTIONAL
INDUSTRIES, Director, Prison Base
Industry, Lansing, Kansas; PRISON
HEALTH SERVICES; TRESA
SANDERSON, Prison Health Services
Admin; (FNU) HAUN; (FNU) NAIK,
Medical Doctors, Lansing Correctional
Facility; JEANNIE (LNU), Head
Nurse Med, Prison Health Services
Clinic, Lansing Correctional Facility;
PRISON HEALTH SERVICES,
Hutchinson Correctional Facility;
JANET MYERS, HSA, Prison Health
Services Clinic, Hutchinson
Correctional Facility; (FNU)
ALBERT; (FNU) WATSON, Medical
Doctor, Prison Health Services Clinic,
Hutchinson Correctional Facility;
IMPACT DESIGN EMBROIDERY,
Lansing Correctional Facility; R.
PRIOR, Warden, Lansing Correctional
Facility; R. BROWN, Captain, Shift
Supervisor, Lansing Correctional
Facility; PEGGY FORTIER;
MICHAEL M. CHMIDLING; J. FOX;
HENRY COVINGTON, Lieutenants,
Lansing Correctional Facility; R.
THORTON, Lieutenant, Disciplinary
Administrator, Lansing Correctional
Facility; MARCELLE MCGOWEN,
CSI, I & I, Lansing Correctional
Facility; K. JACOBS; (FNU)
NEEDHAM; G. MELVIN; J. K.
JONES, CSI's, OIC, Lansing
Correctional Facility; J. R. STYNZEL;
J. VELASQUEZ; (FNU) CO II'S,
LANSING CORRECTIONAL
FACILITY, CO II's, Lansing
Correctional Facility; (FNU)
TINSLEY; (FNU) KARLIN; (FNU)
CLARK, Colonels, Shakedown,
Lansing Correctional Facility; (FNU)
CHESNE; (FNU) BLACKETER;
(FNU) DAVIDSON; (FNU)
LAWSON; (FNU) SHELLER,
Colonels, Lansing Correctional
Facility; (FNU) WISE, Colonel, OIC
Clinic Med, Lansing Correctional
Facility; K. E. LAWRENCE; S. L.
LAUN; R. JEWELL, Unit Team
Managers, Lansing Correctional
Facility; CASE MANAGEMENT
COMMITTEE, Prison Health Services,
Lansing Correctional Facility; JACKIE
SULLIVAN; SHARON AMES; JUDY
(LNU), Nurses, Prison Health
Services, Lansing Correctional
Facility; ANGELA GOERHING, HSA,
Prison Health Services Clinic, Lansing
Correctional Facility; RODD EGLI,
Physicians Assistant, Prison Health


                                         -2-
    Services Clinic, Lansing Correctional
    Facility; (FNU) HOANG, Doctor,
    Prison Health Services Clinic, Lansing
    Correctional Facility; RONALD A.
    ARNEY, General Manager, Impact
    Design Embroidery, Lansing
    Correctional Facility; (FNU)
    BOLLER; J. KOHEN, Unit Team,
    Hutchinson Correctional Facility;
    N. F. SHEETS, Unit Team, Lansing
    Correctional Facility,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BRORBY, Circuit Judges.



         Edward Franklin appeals the dismissal of his civil rights complaint under

42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291. We AFFIRM

the dismissal of Franklin’s claims, but we REMAND to the district court to

clarify the terms of dismissal of his state law claims.


*
  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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.

                                             -3-
                                         I

      At the times relevant to this action, Franklin was incarcerated at Lansing

Correctional Facility (LCF) and Hutchinson Correctional Facility (HCF) in

Kansas. In March 2001, while he was working in a prison job at LCF, Franklin

injured his lower back. Over the next two years, he was examined and treated by

various prison medical personnel. However, Franklin continued to complain of

constant back pain, and he repeatedly requested to be referred to an outside

specialist. His requests were refused.

      On February 19, 2003, Franklin filed an action under 42 U.S.C. § 1983

against a myriad of defendants. The court ordered Franklin to show cause why

his complaint should not be dismissed for failure to exhaust his administrative

remedies. Franklin then filed a motion for leave to file supplemental complaint

and a supplemental complaint. He also filed a formal response to the order to

show cause, a motion requesting leave to amend the complaint, and a second

amended complaint. This second amended complaint set forth claims alleging

that prison officials failed to adopt policies and procedures for workplace safety

training and inspection, claims alleging the breach of contracts to which Franklin

was a third-party beneficiary, and claims concerning the continued denial of

medical treatment by a specialist.


                                         -4-
      The district court granted Franklin’s motion to amend his complaint and

accepted the second amended complaint for filing. The court indicated that it had

doubts about whether administrative remedies had been exhausted, but assumed

for purposes of its decision that all claims had been exhausted. It then dismissed

the complaint for failure to state a claim upon which relief could be granted

pursuant to 28 U.S.C. § 1915.

                                         II

      We review a § 1915 dismissal for failure to state a claim de novo, accepting

all allegations in the complaint as true and construing them in the light most

favorable to the plaintiff. See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806

(10th Cir. 1999). “Dismissal 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.” Id. As the

district court’s order does not state otherwise, we presume its dismissal was a

dismissal with prejudice, especially here where Franklin sought to amend his

original complaint several times.

      Under 42 U.S.C. § 1997e(a), prisoners are required to exhaust their

administrative remedies prior to filing a complaint in court. Under 42 U.S.C.

§ 1997e(c)(2), a court may dismiss an action that fails to state a claim upon which




                                         -5-
relief may be granted without considering exhaustion of administrative remedies.

Like the district court, we proceed under 42 U.S.C. § 1997e(c)(2).

                                           A

         Franklin states that he intended all of his various filings and amended

complaints to add additional claims and theories and to “relate back” to his

original complaint, and that he did not intend to drop claims and defendants by

not including them in the second amended complaint, as assumed by the district

court.

         An amended complaint supersedes the original complaint and renders the

original complaint of no legal effect. See Miller v. Glanz, 948 F.2d 1562, 1565

(10th Cir. 1991); Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990).

Consequently, once the second amended complaint was accepted for filing, the

district court did not err in examining only those claims that were included in

Franklin’s second amended complaint.

                                           B

         Franklin sued Kansas, Kansas agencies or arms, and various individuals in

their official and individual capacities, requesting monetary and injunctive relief

from each defendant. Well-settled law bars his claims against Kansas and its

agencies or arms, his claims for money damages from Kansas employees in their

official capacities, and his claims for injunctive relief.


                                           -6-
          The Eleventh Amendment generally bars suits in federal court against states

and entities considered arms of the state. See Edelman v. Jordan, 415 U.S. 651,

663-64 (1974); Unified Sch. Dist. No. 480 v. Epperson, 583 F.2d 1118, 1121

(10th Cir. 1978). It also generally bars federal suits against state officers in their

official capacities for money damages. Edelman, 415 U.S. at 663. Moreover, the

Supreme Court has held that neither states nor state officers sued in their official

capacities are “persons” within the meaning of 42 U.S.C. § 1983. Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989).

          Further, because Franklin has been transferred away from both LCF and

HCF, his claims for injunctive relief are moot. See McAlpine v. Thompson, 187

F.3d 1213, 1215 (10th Cir. 1999) (stating that release from prison generally moots

claims for injunctive relief); Love v. Summit County, 776 F.2d 908, 910 n.4

(10th Cir. 1985) (indicating that the general rule applies to a transfer between

prisons).

          For these reasons, Franklin’s § 1983 claims against Kansas and its agencies

or arms, his claims for money damages from Kansas employees in their official

capacities, and his claims for injunctive relief were properly dismissed. Thus, the

only remaining claims are those for money damages against individuals, mostly

Kansas employees sued in their individual capacities, and a non-governmental

entity.


                                           -7-
                                         C

      Franklin argues that certain individual defendants were deliberately

indifferent to his serious medical needs by refusing his requests to be seen by an

outside specialist. 1 He contends that defendants’ persistence in refusing the

referral despite the ineffectiveness of other treatment constituted deliberate

indifference.

      “A prison official’s deliberate indifference to an inmate’s serious medical

needs is a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). An

Eighth Amendment claim of denial of medical treatment has both an objective and

a subjective component. Id. Objectively, Franklin is required to show that the

deprivation at issue was “‘sufficiently serious.’” Id. (quoting Farmer v. Brennan,

511 U.S. 825, 834 (1994)). Subjectively, Franklin must show that the officials

had a culpable state of mind, that is, that they knew of and disregarded

“‘excessive risk to inmate health or safety.’” Id. (quoting Farmer, 511 U.S. at

837). “‘[T]he official must both be aware of facts from which the inference could




1
 The defendants who are named in connection with this claim and are not
immune from suit are Roger Werholtz, L.E. Bruce, Tresa Sanderson, Dr. Haun,
Dr. Naik, Prison Health Services nurse Jeannie, Janet Myers, Dr. Albert, and
Dr. Watson, all in their individual capacities.

                                         -8-
be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.’” Id. (quoting Farmer, 511 U.S. at 837).

      Franklin’s claims of suffering severe pain for an extended period of time

satisfy the objective component for the purpose of stating a claim. Id. at 755; see

also Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001); Sealock v.

Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The subjective component,

however, is not satisfied. Whether a specialist should be consulted is generally

considered an exercise of medical judgment that is not subject to redress under

the Eighth Amendment. See Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir.

1992); see also Estelle v. Gamble, 429 U.S. 97, 107 (1976) (the “question whether

. . . additional diagnostic techniques or forms of treatment [are] indicated is a

classic example of a matter for medical judgment”). Of course, if “even a lay

person would easily recognize the necessity for a [specialist’s] attention,” the

failure to refer the patient could be actionable. Oxendine v. Kaplan, 241 F.3d

1272, 1278 (10th Cir. 2001) (quotation omitted). We do not believe that

Franklin’s pleadings support such an inference in this case.

      Franklin complains that he was denied access to a back specialist for over

two years. However, he discusses numerous doctor visits and various treatments

that the prison doctors provided to relieve his pain. Franklin saw four different

doctors and other medical personnel during his incarceration at LCF and HCF.


                                         -9-
To the extent that Franklin quarrels with the treatment provided by prison medical

staff, medical malpractice does not violate the Eighth Amendment. See Estelle,

429 U.S. at 106. A difference of opinion between Franklin and the prison

medical staff about medical treatment does not constitute deliberate indifference.

See Perkins, 165 F.3d at 811. Finally, there is no indication that Franklin’s

condition obviously required unusual medical skill or ability, or that the prison

medical personnel were incapable of attempting to treat Franklin in the first

instance. Cf. Oxendine, 241 F.3d at 1278. Under these circumstances, the failure

to refer Franklin to a specialist does not constitute deliberate indifference to his

health or safety. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); Ledoux,

961 F.2d at 1537; Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976).

                                           D

      Franklin argues that certain defendants’ failure to provide any safety

training or safety measures in connection with his prison job created an

unreasonable risk of harm to him and that defendants disregarded that excessive

risk to his health or safety, also in violation of the Eighth Amendment. 2




2
 The defendants who are named in connection with this claim and are not
immune from suit are Roger Werholtz, David R. McKune, and the Kansas
Correctional Industries (“KCI”) director at LCF, all in their individual capacities,
as well as Impact Design Embroidery, Inc. (“IDEI”) and IDEI’s owner.

                                         -10-
      Prison workplaces, like other conditions of confinement, are covered by the

Eighth Amendment. See Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993).

Assuming without deciding for purposes of this appeal that the risk of which

Franklin complains (the risk of a back injury from improperly lifting heavy

objects) is objectively serious, we focus on the subjective component.

      “In the work assignment context, prison officials are deliberately

indifferent when they knowingly 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, 7 F.3d at 1374 (quotations and alterations omitted).

Franklin’s allegations do not show that officials acted with deliberate indifference

to his health or safety.

      The Eighth Amendment generally does not constitutionally embrace

workplace safety regulations. French v. Owens, 777 F.2d 1250, 1257 (7th Cir.

1985). A lack of workplace safety policies or training does not necessarily

establish deliberate indifference. Stephens v. Johnson, 83 F.3d 198, 200-01

(8th Cir. 1996). At most, Franklin’s allegations indicate that defendants may

have negligently failed to ensure that inmates were informed of and used proper

lifting techniques. Negligence does not rise to the level of an Eighth Amendment

violation. See Whitley v. Albers, 475 U.S. 312, 319 (1986); see also Stephens, 83

F.3d at 201; Choate, 7 F.3d at 1376.


                                         -11-
                                          E

      Franklin asserts that he was a third-party beneficiary of certain contracts,

and that, as such, he can assert claims for breach of contract for failure to comply

with safety standards. 3 The district court declined to exercise supplemental

jurisdiction over this issue.

      We have held that “[i]f federal claims are dismissed before trial, leaving

only issues of state law, ‘the federal court should decline the exercise of

jurisdiction by dismissing the case without prejudice.’” Bauchman ex rel.

Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997) (quoting

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). We find no error in

the decision to dismiss the breach of contract claims, but the dismissal should

have clearly stated that it was a dismissal without prejudice. Thus, we find it

necessary for the district court to clarify that this dismissal was without prejudice.

                                         III

       The judgment of the district court is AFFIRMED, but we REMAND for

the district court to modify the judgment to state that Franklin’s state law claims

are dismissed without prejudice. Franklin is reminded of his obligation to

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


3
 Franklin asserts he is a beneficiary of contracts between the Kansas Department
of Corrections (“KDOC”) and KCI, between KDOC and IDEI, and between KCI
and IDEI.

                                         -12-
       Entered for the Court



       Carlos F. Lucero
       Circuit Judge




-13-
