* This order and judgment is not binding precedent, e xcept under the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. 

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

### FEB 23 2005 

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

HAROLD HORTON,

Plaintiff-Appellant,

v. RON WARD, individually and in his official capacity as Director Oklahoma Department of Corrections; JO ANN RYAN, individually and in her official capacity as Chief Medical Officer of DOC; MIKE JACKSON, individually and in his official capacity as Regional Medical Authority and Facility Physician; PAUL JOHNSON, individually and in his official capacity as Primary Care Physician DCCC; BRADLEY PAYAS, individually and in his official capacity as Health Care Administrator DCCC; DENNIS COTNER, individually and in his official capacity as Medical Administrator ODOC, Defendants-Appellees. No. 03-6306 (D.C. No. 02-CV-1042-T) (W.D. Okla.)

ORDER AND JUDGMENT *-2-

Before TACHA , Chief Judge, HENRY , and O’BRIEN , 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. In this 42 U.S.C. § 1983 action, the district courtentered an order dismissing the claims that plaintiff-appellant Haro ld Horton, a state prisoner appearing pro se, asserted against defendants-appel lees Ron Ward, Bradley Payas, and Dennis Cotner for failure to state a claim unde r Fed. R. Civ. P. 12(b)(6). In the same order, the court granted summary judgment under Fed. R. Civ. P. 56 in favor of defendants-appellees Jo Ann Ryan, Paul Joh nson, and Michael Jackson. Plaintiff is now appealing the district court’s ord er. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.
I. Plaintiff is incarcerated at the Dick Conner Correc tional Center (DCCC) in Hominy, Oklahoma. Defendant Ward is the Director o f the Oklahoma Department of Corrections (ODOC). Defendant Payas is the Heal th Administrator at DCCC. Defendant Cotner is the Medical Services Administrator for the ODOC. Defendants Ryan, Johnson, and Jackson are physician s employed by the ODOC,-3-

and they have each provided medical care to plaintiff at DCCC. In his complaint, plaintiff alleged that defendants violated his Eighth Amendment right to be free from cruel and unusual p unishment because they were deliberately indifferent to his serious medical nee ds. Specifically, as summarized by the district court, plaintiff alleged “that defe ndants were deliberately indifferent to his serious medical needs because: ( 1) they delayed, refused, and denied him adequate medical care for an umbilical h ernia; (2) they delayed and denied treatment for liver disease in the form of aliver transplant; and (3) they interfered with medical treatment after it was pres cribed by one physician.” R.,
Doc. 39 at 1-2. Defendants filed a motion to dismiss or, in the alt ernative, for summary judgment, and the district court disposed of all of plaintiff’s claims in response to defendants’ motion. First, because plaintiff faile d to allege that they personally participated in any of the decisions regarding his medical care, the court determined that plaintiff had failed to state a cla im against defendants Ward, Payas, and Cotner. As a result, the court dismisse d plaintiff’s claims against those defendants under Rule 12(b)(6). Second, although the court determined that defendants Ryan, Jackson, and Johnson were not entitled to have the claims that p laintiff asserted against them dismissed under Rule 12(b)(6) based on their defens e of qualified immunity, the-4-

court concluded that they were entitled to summary judgment under Rule 56. In the case of defendant Ryan, the court found that pl aintiff’s claims were barred by the applicable two-year statute of limitations because “construing all facts in the record most favorably to plaintiff, the last possib le date on which [Dr.] Ryan could have treated him was May 15, 2000, more than two years before the lawsuit was filed.” Id. at 5. In the case of defendants Jackson and Johns on, the court found that they both “were involved in the medical treatment of plaintiff’s umbilical hernia and his liver disease.” Id. at 6. The court concluded, however, that plaintiff had failed to put forth sufficient e vidence to establish that defendants Jackson and Johnson had acted with delib erate indifference with regard to their treatment of his umbilical hernia a nd liver disease. Consequently, the court concluded “that the evidence [was] not su fficient to create a material fact dispute from which a reasonable jury could con clude that plaintiff’s Eighth Amendment rights have been violated.” Id. at 9.
II. We review the district court’s grant of defendants’ motion to dismiss under Rule 12(b)(6) de novo, applying the same standards as the district court. See Montgomery v. City of Ardmore , 365 F.3d 926, 935 (10th Cir. 2004). Like the district court, we must therefore assume that all o f the well-pleaded factual allegations in plaintiff’s complaint are true, and we view them in the light most-5-

favorable to plaintiff. Id. In addition, a Rule 12(b)(6) motion “should not b e granted unless it appears beyond doubt that the pla intiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (quotation omitted). Because he is pro se, we must also construe plaintiff’s pleadings liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). Similarly, “[w]e review the grant of summary judgme nt de novo applying the same standard as the district court embodied in Rule 56(c).” Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Under Rule 5 6(c), summary judgment is proper if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgmen t as a matter of law.” Fed. R. Civ. P. 56(c). “In applying this standard, we viewthe factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” Adler , 144 F.3d at 670. However, “[c]onclusory allegations th at are unsubstantiated do not create an issue of fact and are insufficient to oppose summary judgment.” Harvey Barnett, Inc. v. Shidler , 338 F.3d 1125, 1136 (10th Cir. 2003) (quotation o mitted). Having conducted the required de novo review, we co nclude that plaintiff has failed to demonstrate that the district court c ommitted reversible error under Rule 12(b)(6) or Rule 56(c). To begin with, as fou nd by the district court, plaintiff has failed to allege that defendants Ward , Payas, or Cotner personally authorized, supervised or participated in the decis ions regarding his medical care.-6-

This omission is fatal to plaintiff’s claims against those defendants. See Snell v. Tunnell , 920 F.2d 673, 700 (10th Cir. 1990) (holding that, to establish supervisory liability in a § 1983 action, a plaintiff must showthat “a supervisory defendant, expressly or otherwise, authorized, supervised, or participated in conduct which caused the constitutional deprivation”). Thus, the district court did not err in finding that plaintiff had failed to state a claim against defendants Ward, Payas, and Cotner. We also agree with the district court that defendants Ryan, Jackson, and Johnson were entitled to summary judgment. Startin g with defendant Ryan, plaintiff has failed to point to any facts which sh ow that his claims against defendant Ryan are not time-barred, and we are not persuaded by the continuing-violation and equitable tolling argument s that plaintiff has advanced in his opening brief. See Aplt. Opening Br. at 19-19C. Thus, we must affirmthe entry of summary judgment in favor of defendant Ryan. With respect to defendants Jackson and Johnson, we conclude that plaintiff has failed to put forth sufficient evidence to establish that either of these defendants acted with deliberate indifference to hi s serious medical needs. As this court has recognized, A prison official’s deliberate indifference to an i nmate’s serious medical needs violates the Eighth Amendment. See Estelle v. Gamble , 429 U.S. 97, 102, . . . (1976). “Deliberate indi fference” involves both an objective and a subjective compone nt. The1 In fact, the record shows that plaintiff was housedin the infirmary at

DCCC from February 25, 2000 until November 30, 2001. See R., Doc. 27 at 10. This was done so that the prison medical staff coul d “more closely monitor his liver condition.” Id. -7- objective component is met if the deprivation is “s ufficiently serious.” Farmer v. Brennan , 511 U.S. 825, 834 . . . (1994). A medical 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 recogni ze the necessity for a doctor’s attention.” Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999) (quoting Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980) (further quotation omitted)). The subjective component is met if a prison official “knows of anddisregards an excessive risk to inmate health or safety.” Farmer , 511 U.S. at 837. Sealock v. State of Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). Given thes e standards, it is not enough for a prisoner to estab lish that a prison doctor failed to diagnose or treat a serious medical condition prope rly, and this is true even if the doctor acted negligently. Id. at 1211. Further, while this court has recognized that a delay in providing medical care may constitu te deliberate indifference, a “[d]elay in medical care only constitutes an EighthAmendment violation where the plaintiff can show that the delay resulted in substantial harm.” Id. at 1210. In this case, there is no question that plaintiff’s liver problems constituted a serious medical condition. On the other hand, it i s also undisputed that the prison doctors and medical staff at DCCC have provided pla intiff with extensive medical care and treatment with regard to his liver problems, 1 including a number of consultations with outside medical professionals. In addition, plaintiff has failed2 Plaintiff alleges that his identical twin brother i s willing to donate a portion

of his liver to him, and we will assume that this a llegation is true for purposes of this appeal. -8- to point to any specific facts which support his cl aim that defendants Jackson and Johnson have acted with deliberate indifference with regard to his liver problems. Most importantly, although plaintiff claims that de fendants Jackson and Johnson have violated the Eighth Amendment by faili ng to make arrangements for him to undergo a liver transplant operation and rec eive a portion of his identical twin brother’s liver, 2the record shows that defendant Johnson and the su rgical team at Oklahoma University Medical Center did cons ider whether plaintiff was a candidate for a liver transplant. See R., Doc. 27, Ex. N at 2. They concluded, however, that such a procedure was too risky for pl aintiff to undergo “due to the risk of peritonitus or inflammation and/or infection of the abdominal cavity.” Id. Defendant Jackson has also opined that plaintiff is not a candidate for a liver transplant because “[h]e has an extensive history o f poor adherence to medical regimens.” Id. , Doc. 26, Ex. 1 at 2. We conclude that plaintiff has failed to show that the decision to forego a transplant operation was deliberately indifferent to his medical needs. At best, plaintiff has only est ablished a difference of opinion regarding the feasibility of a transplant, and thatis insufficient to support an Eight Amendment violation. See Johnson v. Stephan , 6 F.3d 691, 692 (10th Cir. 1993).-9-

Although it is a closer question, we also conclude that plaintiff has failed to put forth sufficient evidence to establish deliberate indifference with regard to the treatment he received for his umbilical hernia. Pl aintiff’s umbilical hernia was first diagnosed in December 1999, when defendant Ja ckson noted a “2cm umbilical hernia, easily reducible.” R., Doc. 27, Att. J at 48. Plaintiff’s medical records indicate that he was subsequently referred to Griffin Memorial Hospital and Oklahoma University Medical Center for a numberof outside consultations to determine whether the umbilical hernia could be surgically repaired. Id. , Att. K at 36-37, 41-43, 49-51. Because of concerns arising f rom plaintiff’s liver problems, the consulting physicians were initially reluctant to recommend surgery. Id. , Att. J at 66. However, plaintiff’s medical records indi cate that his umbilical hernia was increasing in size in 2001, id. at 68, and plaintiff was apparently placed on a waiting list for surgery in June 2001, id. at 69. As a result, we have no trouble concluding that plaintiff’s umbilical hernia was a serious medical condition. Nonetheless, like the district court, we conclude that plaintiff does not have sufficient evidence to establish that defendants Ja ckson and Johnson acted with deliberate indifference with regard to his umbilica l hernia. To begin with, the record shows that plaintiff cut his umbilical herni a in November 2001 during a self-mutilation episode that occurred in the infirmary at DCCC, id. at 71-72, and the resulting self-inflicted wound exacerbated the problems associated with the3 Plaintiff remains incarcerated at DCCC, and, in his opening brief, plaintiff

asserts that he finally underwent surgery to repairhis umbilical hernia in 2004. According to plaintiff, the surgery was performed w ithout any complications, and plaintiff believes that the success of the surgery demonstrates that there were no (continued...) -10- hernia and created a high risk of infection, id. , Att. N at 1. The record also shows that plaintiff was scheduled to have his umbilical hernia surgically repaired in August 2002, but, due to an error by the prison nur sing staff, plaintiff missed his appointment for the surgery. Id. , Att. J at 78-83; Att. N at 1; Att. O at 2; R., Do c. 26, Ex. 2 at 1. There is no evidence in the record indicating that either Dr. Jackson or Dr. Johnson were involved in the failure to transport plaintiff to his surgery appointment, however. Further, the record shows that the prison medical staff subsequently reevaluated the potential risks and benefits that were associated with a surgical repair of plaintiff’s umbilical hernia. Id. , Att. J at 87-89, 91. Towards that end, Dr. Jackson and Dr. Johnson eventually determined that plaintiff was not a good candidate for surgery due to the high risk of infection caused by his prior self-inflicted injury and his liver problems. Id. , Att. N at 1; R., Doc. 26, Ex. 1 at 3. Accordingly, while plaint iff may personally disagree with the decision not to reschedule the surgery, “[t]he record reflects that plaintiff received extensive and regular medical care [with r egard to his umbilical hernia], and the undisputed facts reflect that plaintiff can not show that such care evidence[d] deliberate indifference to his medical needs.” 3 R., Doc. 39 at 8.3 (...continued)

legitimate reasons to delay the surgery. See Aplt. Opening Br. at 18E-18F, 19B. Plaintiff also alleges that he was told by the doct or who performed the surgery that “[the doctor] was amazed that the hernia operation had not been performed when first diagnosed.” Id. at 18F. Plaintiff’s surgery occurred after the conclusion of the district court proceedings in thi s case, however, and we do not consider materials or arguments that were not presented to the district court. See Myers v. Oklahoma County Bd. of County Comm’rs , 151 F.3d 1313, 1319 (10th Cir. 1998). -11- The judgment of the district court is AFFIRMED. Pl aintiff’s motion to proceed without prepayment of the appellate filing fee is granted, and we remind plaintiff that he must continue making partial paym ents on court fees and costs previously assessed until such have been paid in fu ll.

Entered for the Court

Deanell Reece Tacha Chief Judge