1 The Honorable Paul A. Magnuson, United St ates District Judge for the District of Minnesota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 05-2773/3163

___________ Otha Smith, *
* Appellant, * * Appeals from the United States v. * District Court for the * District of Nebraska. Harold Clarke; Patrick Colerick, *
* Appellees. *

__________ Submitted: March 17, 2006 Filed: August 7, 2006

___________ Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON, 1 District Judge.

___________ ARNOLD, Circuit Judge.
Inmate Otha Smith sued Dr. Patrick Colerick and Harold Clarke, the director of the Nebraska Department of Correctional Services, for violation of his civil rights and for negligence. The district court granted the defendants' motion for summary judgment. We affirm in part and reverse in part.-2- I. After Mr. Smith accidentally splashed cleaning fluid in his left eye while he was working in the kitchen of a Nebraska pris on in March, 1999, he complained of pain and asked to see a doctor. The record re flects that an eye examination was scheduled for him in June of that year, but he was not examined at that time. In November, Dr. Colerick conducted an examination and determined that the response of Mr. Smith's pupils to light was normal; the doctor told Mr. Smith that his vision trouble was caused by a cataract. Six months later, Mr. Smith complained about redness in the eye, and Dr. Cole rick examined him again. Dr. Colerick attributed the redness to Mr. Smith's age and exposure to the sun.

In May, 2001, Dr. Colerick examined Mr. Smith's eye for a third time. At this examination, the doctor observed that Mr. Smith's pupils were not reacting normally, and he referred him to an opthamologist. The opthamol ogist determined that a tumor on Mr. Smith's pituitary gland was pinching his optic nerve. Although Mr. Smith had the tumor surgically removed, he was left without the use of his left eye.

Mr. Smith filed this action, claiming, under 42 U.S.C. § 1983, that Mr. Clarke and Dr. Colerick violated his constitutional rights by failing to treat the tumor in a timely manner. He also claimed that th e defendants were ne gligent under Nebraska law. The district court granted summary judgment to the defendants. Regarding the § 1983 claims, the court determined that Mr. Smith failed to produce any evidence indicating that Dr. Colerick knew of the tu mor before May, 2001, and that there was no evidence that Mr. Clarke was involved in the medical treatment of inmates. The district court also determined that Mr. Clarke and Dr. Colerick were both state employees and thus Mr. Smith's negligence claims were barred b ecause he had failed to file an administrative claim agains t them before pro ceeding in court. See Neb. Rev. Stat. § 81-8,213.-3- After Mr. Smith filed a notice of appeal, he moved to reopen the district court's judgment under Fed. R. Civ. P. 60(b). In that motion, Mr. Smith offered evidence that he had indeed filed an administrative clai m before filing his lawsuit and maintained that he therefore should be allowed to pr oceed on his negligence claims. The district court denied the motion on the ground that Mr. Smith had the burden of presenting this evidence prior to judgment in response to the defendants' summary judgment motion.

II. We consider first whether the defendants were entitled to summary judgment on Mr. Smith's civil rights claims. We review de novo the district court's order granting summary judgment. Gibson v. Weber , 433 F.3d 642, 646 (8th Cir. 2006).

Mr. Smith maintained that the failure to detect the tumor on his eye, despite his repeated complaints, amounted to "deliberat e indifference to serious medical needs," in violation of the eighth and fourteenth amendments. Estelle v. Gamble , 429 U.S. 97, 105-06 (1976). To succeed on a deliberate-indi fference claim, an inmate must show that the defendant "knew of and disregarded a serious medical need." Phillips v. Jasper County Jail , 437 F.3d 791, 795 (8th Cir. 2006). The defendants concede that the pituitary tumor was a serious medical n eed. We focus, then, on whether Mr. Smith presented any evidence that the defendant s knew of and disregarded the tumor. See Farmer v. Brennan , 511 U.S. 825, 837 (1994). We review the evidence in the light most favorable to Mr. Smith, the nonmoving party. Parsons v. Pioneer Seed Hi-Bred Int'l, Inc. , 447 F.3d 1102, 1104 (8th Cir. 2006)

. Although Mr. Clarke is the chief administrator of Nebraska's prison system, we have repeatedly held that a supervisor cannot be held liable for an eighth amendment violation if he or she is neither aware of the conduct nor "personally involved in the violation." Meloy v. Bachmeier , 302 F.3d 845, 849 (8th Cir. 2002); Camberos v. Branstad , 73 F.3d 174, 176 (8th Cir. 1995). There is no evidence that Mr. Clarke was-4- personally aware of Mr. Smith's health pr oblems or his medical treatment. The only evidence that Mr. Smith presented in support of his eighth-amendment claim against Mr. Clarke were copies of grievances and other communicati ons that he filed with the prison staff and responses from prison empl oyees. Mr. Smith contends that because one of the forms that he completed was answered by a "subordinate" of Mr. Clarke, a factfinder could conclude that Mr. Clarkeknew of Mr. Smith's condition. We think that inference is impermissible, partic ularly given the absence of evidence that Mr. Clarke was aware of the corresponden ce or that he regularly reviewed such communications. Cf. Boyce v. Moore , 314 F.3d 884, 889 (7th Cir. 2002); Vance v. Peters , 97 F.3d 987, 994 (7th Cir. 1996), cert. denied , 520 U.S. 1230 (1997).

As for Dr. Colerick, the ev idence reveals that he ex amined Mr. Smith on three different occasions, each time performing te sts on Mr. Smith's eyes. Dr. Colerick stated in an affidavit that until the thir d examination there was no reason to believe that Mr. Smith's eye problems could stem from a tumor. Dr . Colerick also presented the affidavit of the doctor who removed Mr . Smith's tumor; that doctor said that Mr. Smith received appropriate diagnostic care and treatment and that the tumor in question was difficult to detect in an ordinary examination. Mr. Smith did not present any other evidence that suggested Dr. Cole rick inferred the existence of the tumor prior to May, 2001, or that he delayed Mr. Smith's treatment after that examination. Malpractice alone is not actionable under the eighth amendment. Estelle , 97 U.S. at 106. Without evidence that Dr . Colerick was aware of facts from which the inference of the tumor's existence could be draw n and that he drew that inference, see Farmer , 511 U.S. at 837, the district court correctly granted Dr. Colerick summary judgement on Mr. Smith's constitutional claim. Cf. Johnson v. Quinones , 145 F.3d 164, 168-70 (4th Cir. 1998).

III. In the second and third counts of hi s amended complaint, Mr. Smith laid negligence claims against Mr. Clarke and Dr. Colerick based on Nebraska law. The-5- district court, exercising its supplemental jurisdiction over these claims, see 28 U.S.C. § 1367, granted the defendants' summary j udgment motion. The court concluded that Mr. Smith failed to show thathe had exhausted the admini strative remedies for claims against state employees as required by the Nebraska State Tort Claims Act (NSTCA). Because we find significant differences betweenMr. Clarke's and Dr. Colerick's status under the NSTCA, we address the claims against them separately.

A. As director of the Nebraska Departme nt of Correctional Services, Mr. Clarke clearly qualifies as an "employee of the state" under the NSTCA. See Neb. Rev. Stat. § 81-8,210(3). The NSTCA requires those wi th tort claims against state employees to file a claim with the Stat e Tort Claims Board before filing an action in court. See Neb. Rev. Stat. § 81-8,213. Mr. Smith's a llegations of negligence qualify as "tort claims" under the Act. See Neb. Rev. Stat. § 81-8,210(4).

In their summary judgment motion, th e defendants conte nded that Mr. Smith had not filed a complaint with the state Tort Claims Board beforebringing his federal action, and Mr. Smith concedes that he presented no evidence of his administrative filing in response to the defendants' motion. After the district court granted summary judgment, however, Mr. Smith apparently r ecalled that he had, in fact, filed a complaint with the Board prior to initiating th e court case, and so he filed a Rule 60(b) motion asking the district court to set aside its judgment. While conceding that he was partly responsible for failing to bring the ad ministrative claim to the court's attention, Mr. Smith argued that the state should have been aware of the filing and that its employees should not be allowed to prevail on the strength of an incorrect assertion made in their summary judgment motion. Th e district court declined to set aside its judgment. We review that decision for an abuse of discretion. Miller v. Baker Implement Co. , 439 F.3d 407, 414 (8th Cir. 2006).-6- Given Mr. Smith's failure to bring his administrative filing to the attention of the district court, we cannot say that the c ourt abused its discreti on in declining to set aside the judgment. A party's failure to produce evidence that was available to it at the time that the matter was before the court is not the kind of mistake or neglect that will support granting the extraordinar y relief provided by Rule 60(b). See Mas Marques v. Digital Equip. Corp. , 637 F.2d 24, 29-30 (1st Cir. 1980); Jinks v. AlliedSignal, Inc. , 250 F.3d 381, 387 (6th Cir. 2001); Jarrett v. US Sprint Commun. Co. , 22 F.3d 256, 262 n.4 (10th Cir. 1994), cert. denied , 513 U.S. 951 (1994). Nor does the record yield any deliberate fraud by the state attorney general's office when it incorrectly asserted that Mr. Smith ha d not filed a complaint as required by the NSTCA. Without clear and convincing ev idence that the misrepresentation was knowing and intentional, see E.F. Hutton & Co. v. Berns , 757 F.2d 215, 216-17 (8th Cir. 1985), the district court had no obligation to grant the motion.

B. The district court concluded that Dr. Co lerick also qualified as a state employee under the NSTCA. Mr. Smith contends that Dr . Colerick is an independent contractor, not a state employee, and therefore the neg ligence action against him is not subject to the requirements of the NSTCA. We agree.

The district court determined that the Nebraska legislature intended to include Dr. Colerick in the NSTCA's definition of employee, based on the language of Neb. Rev. Stat. § 81-8,239.08: "Any person who, at the request of the director of a state agency, provides medical ... services" to a state prisoner "may be represented by the Attorney General in the same manner as a state officer or employee ... in any civil action under ... 42 U.S.C. § 1983, which arose as a result of providing such services." The provision also authorizes the indemnification of such providers "for liability for violations of civil rights in the same ma nner as a state officer or employee." Neb. Rev. Stat. § 81-8,239.08. The district court read this statute to bring providers of-7- prison medical services, such as Dr. Colerick, within th e full spectrum of protection provided by the NSTCA.

We think that the scope of § 81-8,239.08 is much narrower. By its terms, the statute does not say that medical services providers are "employees" for purposes of the NSTCA. In fact, it intimates quite plainl y that they are not state employees. The statute merely authorizes the NebraskaAttorney General to represent medical providers who are sued under the federa l civil rights laws and provides state indemnification if the providers are found liable for violating those laws. The right to state representation and indemnification in § 1983 actions is not equivalent to the wider procedural and substantive protecti ons that state employees receive under the NSTCA. If the Nebraska legislature intend ed to extend the full scope of NSTCA's protection to medical services providers like Dr. Colerick, it coul d have done so very easily by including them in the definition of "employee of the state" contained in § 81- 8,210(3). Instead, § 81-8,239.08 affords medi cal services contractors only a few of the NSTCA's protections and then only in cases arising under § 1983.

Legislative history supports our construction of the statute. The Nebraska attorney general's office ha s reviewed § 81-8,239.08 and not ed that the "[l]egislative staff who presented the bill to the Committ ee on the Judiciary informed the committee that the bill was narrowly tailored to address only the civil rights act and not medical malpractice ." Neb. Op. Att'y Gen. 04016, 2004 WL 858921, at *1 (April 14, 2004) (emphasis added) (citing Neb. Comm. on Judi ciary, L.B. 560, Fe b. 28, 1991, p. 26). The legislative history indicates that § 81- 8,239.08 was enacted to address the specific fear that the state would be unable to fi nd any medical services practitioners willing to care for its prisoners unless it protected those practitioners from federal civil rights actions that might arise. Att'y Gen. Op . at *1 (citing Neb. Comm. on Judiciary, L.B. 560, Feb. 28, 1991, p.27). This explains why the benefits th at § 81-8239.08 bestows-8- upon medical services providers are limite d to actions arising under § 1983, and do not cover ordinary negligence claims like the one that Mr. Smith made against Dr. Colerick.

In the district court, Dr. Colerick relied entirely on § 81-8,239.08 to demonstrate that he should be considered an "employee" for purposes of the NSTCA. Because we hold that this section does not provide contracted medical service providers the full scope of protection o ffered by the NSTCA, summary judgment was proper only if Dr. Colerick qualifies as an "employee of the state" pursuant to § 81- 8,210(3). Nebraska courts look at the totality of the circumstances to decide whether one is an employee or an independent contractor. See Reeder v. State , 11 Neb. App. 215, 221-22, 649 N.W.2d 504, 511-12 (2002). The record before the district court established that Dr. Colerick was not a regular, full-time state employee, but was instead hired on a contract basis. The plead ings indicate that he kept a separate place of business. Dr. Colerick had consid erable freedom to schedule appointments, prescribe any necessary medicine, and dia gnose and treat the inmates whom he saw. We believe that for purposes of the NS TCA, Dr. Colerick wa s not "an employee of the state" at the relevant time as a matter of law, and therefore the NSTCA is inapplicable to Mr. Smith's negligence acti on against him. We thus find it necessary to reverse the order of summary judgment w ith respect to this claim. We note that Dr. Colerick moved for summary judgmen t on grounds other than the one on which the district court granted judgment, and th at the district court may on remand consider those grounds. We note, too, that the district court may reconsider whether it should continue to assert supplemental jurisdicti on over Mr. Smith's state-law action against Dr. Colerick. See 28 U.S.C. § 1367(c).

IV. For the reasons stated, weaffirm the judgment with respect to Mr. Smith's claims against Mr. Clarke, and with respect to his federal claim against Dr. Colerick. We reverse the summary judgment entered in favor of Dr. Colerick on Mr. Smith's state-law claims, and we remand for further proceedings consistent with this opinion.

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