## F I L E D United States Court of Appeals Tenth Circuit 

### APR 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

WILLIAM L. FLEMING,

Plaintiff-Appellant,

v. JUDY UPHOFF, Director of Corrections, State of Wyoming, in her individual and official capacity; JAMES FERGUSON, Warden of the Wyoming State Penitentiary, in his individual and official capacity; JAMES DAVIS, Health Service Administrator, Department of Corrections, State of Wyoming in his individual and official capacity,

Defendants-Appellees, and WEXFORD HEALTH SOURCES, INC., a qualified foreign corporation; JOHN PERRY, Health Care Administrator, Wexford Health Sources, Inc.; PAUL LONG, M.D., Medical Director, Wexford Health Sources, Inc., and JOHN AND JANE DOES 1-10, Defendants. No. 99-8035 (D.C. No. 97-CV-170-J) (D. Wyo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *

Before TACHA , ANDERSON , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff-appellant William L. Fleming appeals the district court’s dismissal of his civil rights complaint for failure to state a claim upon which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6). We h ave jurisdiction under 28 U.S.C. § 1291, and we affirm.
Background Plaintiff entered the Wyoming State Penitentiary inApril 1996, following a conviction for escape. Plaintiff alleged that the escape, which took him to Denver, Colorado, and then to Armadillo, Texas, was for the purpose of seeking1 Plaintiff does not reveal the exact nature or diagn osis of his circulatory

problems in any of the pleadings or supporting documents submitted to this court.

2 Plaintiff states in his brief that his claims again st Wexford were settled, and a stipulated dismissal order as to Wexford was ente red on April 5, 1999. -3- medical care from a certain surgeon for his circulatory condition. 1 Upon his entry into the Wyoming prison, plaintiff received a medic al orientation and saw a physician who prescribed medication. At this time, health care to the Wyoming institution’s inmates was provided under contract w ith defendant Wexford Health Sources, Inc. 2 In August 1996, plaintiff was transported to the Veterans Administration Center (VA) in Denver, Colorado, for evaluation. H e was also seen by a private physician in Rawlins, Wyoming. Plaintiff contends that the Wexford board denied approval for the additional tests requested by the VA and the Rawlins doctor. He alleged that he had another appointmentat the VA in Denver on December 5, 1996, which defendant Uphoff refused to allow him to keep. On December 13, 1996, plaintiff saw Dr. Long, a Wexfor d physician at the prison, who prescribed additional medication. In his complaint, plaintiff requested compensatory damages for medical malpractice, alleged a third party claim pursuant t o the contract between the Wyoming Penitentiary and Wexford, and alleged a civ il rights claim under 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs.-4-

Defendants Judy Uphoff, Jim Ferguson, and James Dav is moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and (2) for la ck of subject matter jurisdiction and pursuant to Fed. R. Civ. P. 12(b)(6) for failur e to state a claim upon which relief can be granted. Defendants further assertedthat plaintiff failed to exhaust his administrative remedies under 42 U.S.C. § 1997e

. In granting defendants’ dismissal motion as to plai ntiff’s federal claims, the district court concluded that plaintiff failed to s tate a cognizable claim for relief. In this light, the court declined to retain jurisdi ction over plaintiff’s pendant state law claims, and declined to address defendants’ exhaustion arguments. After careful review of plaintiff’s arguments and record on appeal, we agree with the district court that plaintiff failed to state a cla im upon which relief can be granted.

Discussion The legal sufficiency of a complaint is a question of law; hence, a Rule 12(b)(6) dismissal is reviewed de novo

. See Sutton v. Utah State Sch. For the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). In reviewing the district court’s grant of a Rule 12(b)(6) motion to dismiss, all well-pleaded allegations in the . . . complaintare accepted as true and viewed in the light most favorable to the nonmo ving party. A 12(b)(6) motion should not be granted unless it app ears beyond doubt that the plaintiff can prove no set of facts in sup port of his claim which would entitle him to relief.-5-

Id. at 1236 (quotation and citation omitted). The rul es create “a powerful presumption against rejecting pleadings for failure to state a claim.” Cayman Exploration Corp. v. United Gas Pipe Line Co. , 873 F.2d 1357, 1359 (10th Cir. 1989). “[D]eliberate indifference to serious medical needs of prisoners” constitutes a violation of the Eight Amendment. Estelle v. Gamble , 429 U.S. 97, 104 (1976). “However, ‘a complaint that a physician has been negligent in diagnosing or treating a medical condition does notstate a valid claim of medical mistreatment under the Eighth Amendment.’” Green v. Branson , 108 F.3d 1296, 1303 (10th Cir. 1997) (quoting Estelle , 429 U.S. at 106). In addition, neither medical malpractice nor disagreement with medical j udgment constitutes an Eighth Amendment violation. See id. Therefore, in order to prevail here, plaintiff must show a “deliberate refusal to provid e medical attention, as opposed to a particular course of treatment.” Id. Plaintiff’s only argument on appeal challenges the district court’s dismissal of his claims against the prison officials, in part icular defendant Uphoff. In dismissing these claims, the court accepted the all egation in plaintiff’s complaint that his medical condition was serious. Relying on Green , 108 F.3d at 1303, the court concluded, however, that plaintiff’s complaint alleged only a difference of-6-

opinion regarding the type and timing of medical tr eatment, which did not constitute actionable deliberate indifference. Although plaintiff alleges on appeal that Wexford c ontinued to deny him medical care during the year he was incarcerated, h e does not specifically identify any other instances after December 13, 1996, when h e requested medical care from the prison staff and was refused. Plaintiff g enerally contends that due to the denial of adequate medical care during his incarcer ation, his medical condition deteriorated resulting in the need for more complexsurgery upon his release. He does not elaborate further on either the nature of the surgery or the nature or extent of the increased complexity. Although in hi s complaint plaintiff alleged that the delay of medical care would “cause him permanent problems,” he does not describe the nature or extent of these problems . Appellant’s App. at 16. The Eighth Amendment imposes on the government the affirmative duty to provide adequate medical care to incarcerated persons. See Estelle, 429 U.S. at
103

. The standard for determining whether the governmenthas shown deliberate indifference to the medical needs of a prisoner has two components: “‘an objective component requiring that the pain or depr ivation be sufficiently serious, and a subjective component requiring that the offen ding officials act with a sufficiently culpable state of mind.’” Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996) (quoting Miller v. Glanz , 948 F.2d 1562, 1569 (10th Cir. 1991)).-7-

Delay in treatment can be actionable under Estelle , see Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999), but it must, in i tself, reflect “deliberate indifference which results in substantial harm.” Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) (quotation and citation omitt ed). Here, plaintiff’s allegations of delay reflect nothing more than his general disagreement with the course of his medical treatment. This, at most, involves a claim of medical malpractice or negligence that is not actionable un der the Eighth Amendment. See Estelle , 429 U.S. at 106; see, e.g., Tyler v. Sullivan , No. 95-1232, 1996 WL 195295 (10th Cir. April 22, 1996) (following Olson to hold “[a] difference of opinion as to the kind and timing of medical treatment does not rise to the level of an Eighth Amendment violation”) (emphasis added) (unpublished); cf. White v. Colorado , 82 F.3d 364, 367 (10th Cir. 1996) (affirming summ ary judgment because “plaintiff’s allegations of denial of, or d elay in providing, diagnostic evaluation and other means of treatment . . . impli cate only defendants’ negligence”). Further, plaintiff’s vague and concl usory allegations do not indicate how the alleged deprivation or delay “exac erbate[d] [his] medical problems” or “result[ed] in a lifelong handicap or a permanent loss,” Hunt , 199 F.3d at 1224 (quotation omitted).-8-

In conclusion, we agree with the district court’s d etermination that plaintiff’s complaint failed to state a claim upon which relief could be granted. Therefore, the judgment of the United States Distri ct Court for the District of Wyoming dismissing plaintiff’s complaint is AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge