* This order and judgment is not binding precedent, e xcept under the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

### MAR 18 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD G. HOGAN,

Plaintiff - Appellant, No. 02-7091

v. (E.D. Oklahoma) OKLAHOMA DEPARTMENT OF CORRECTIONS; ANITA TRAMMELL, THOMAS SHARP, BOBBY BOONE, and DONNIE WORKMAN, in their individual and official capacities; OKLAHOMA CORRECTIONS INDUSTRIES,

Defendants - Appellees. (D.C. No. 00-CV-540-P)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 In addition to defendants OCI, Trammell, Workman an d Sharp, the other

defendants in this case are the Oklahoma Departmentof Corrections (“DOC”), (continued...) -2- 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. Donald Gene Hogan, proceeding pro se and in forma pauperis , appeals the district court’s grant of summary judgment to defen dants in this 42 U.S.C. § 1983 action alleging that Hogan’s Eighth Amendment right s were violated while he was an inmate in the Mack Alford Correctional Center (“ MACC”) in Stringtown, Oklahoma. We affirm.

BACKGROUND In December 1996, while incarcerated in the Davis C orrectional Facility (“DCF”) in Oklahoma, Hogan was placed on a medical restriction when he was diagnosed with a 6 cm. ventral hernia. The restric tion still existed in 1998. On March 16, 2000, Hogan was transferred from DCF t o MACC, where he alleges he was assigned to the farm crew and requir ed to lift rocks “in excess of 200 lbs.” Appellant’s Br. at 7. He alleges that h e showed the DCF medical records to defendants Anita Trammell (the MACC UnitManager), Donnie Workman (the Farm Supervisor for defendant OklahomaCorrection Industries (“OCI”)), and to Thomas Sharp (the MACC Investigating Officer). 1 He1 (...continued)

and Bobby Boone, the MACC Warden.

2 The Rush affidavit actually states that Hogan worke d on the farm crew with no medical incidents from March 27, 2001 until April 21, 2001 . We assume that the year referenced was a typographical error, inasmuch as it is undisputed (continued...) -3- submitted to the district court two affidavits from fellow inmates Robert Carr and Ernest Tillman. The Carr affidavit stated that Car r, while on the farm crew with Hogan, observed “Hogan g[i]ve Donnie Workman some p aperwork.” Carr Aff., Mot. to Enter Exhibits, Ex. A-1, R. Vol. 1 at Tab 4 0. The Tillman affidavit stated that Tillman, also on the farm crew, “was present M arch 25th 2000 when Donald Hogan gave medical records to Don Workman during or ientation . . . and . . . to Anita Trammell and Thomas Sharp and they would not honor them.” Tillman Aff., id. , Ex. A. Defendants provided an affidavit from Mary Lou Rush, the Warden’s Assistant at MACC, who stated that: Inmate Hogan was received at [MACC] on March 17, 20 00. When he arrived at this facility there was a Medical Tra nsfer History Summary sheet in his medical records from [DCF] the sending facility that stated that the inmate was basically healthy and without restrictions for travel. In medical progress notes it states that inmate Hogan had not had a physical exam since April 17, 1 996. There were no restrictions noted at that time nor was there any mention of a hernia or hemorrhoids, there was documentation of v aricose veins. Rush Aff., Resp. to the Court’s Order of 2/5/02, Ex . A, R. Vol. 1 at Tab 39. She further stated that “[Hogan] worked on the Farm Tra ctor Crew from March 27, 200[0] until April 21, 200[0] with no medical issues.” Id. 2 Defendant Workman2 (...continued)

that the events relevant to this action occurred in 2000, not 2001. -4- filed an affidavit in which he stated, “[a]t no tim e while I was [Hogan’s] supervisor did he present me with any medical restr iction slip until after his appointment with MACC medical services on April 21, 2000.” Workman Aff., id. , Ex. C. On April 21, 2000, Hogan reported to the medical un it at MACC complaining that he felt he had a hernia that was a bout to rupture. The medical staff apparently did not diagnose a hernia, but pla ced Hogan on a medical restriction prohibiting lifting over 10 lbs., with no repetitive stooping and bending. When he returned for another evaluation o n April 26, the lifting restriction was modified to prohibit lifting over 2 5 lbs. and he was diagnosed with an oblique muscle strain. Marcus Pogue, the Health Services Administrator at MACC, stated in his affidavit that medical restrict ions lasted for ninety days, following which an inmate would need to see a docto r again to determine if an extension of the restriction was warranted. The me dical restrictions for Hogan contained in the record verify that ninety day duration. The Pogue affidavit further states that “Hogan has not sought medical attention for . . . the supposed hernia (oblique muscle strain) or hemorrhoids since May 8, 2000.” Pogue Aff., id. , Ex. B.-5-

Hogan failed to report for work on May 1, 2, 3, 4, and 8, nor did he inform his supervisor that he was ill. He was issued five misconduct reports, four of which were ultimately dismissed and expunged from h is record, with the result that he lost 25 earned credits and was placed in re strictive housing for five days. Hogan then filed a 42 U.S.C. § 1983 action, allegin g that defendants’ actions had violated his Eighth Amendment right to be free from cruel and unusual punishment. He also sought restoration of his good time credits and alleged his due process rights were violated by his placement in restrictive housing. Defendants filed a motion to dismiss the complaint, which the district court granted, pursuant to 28 U.S.C. § 1915(e), on the ground that it was frivolous. The district court did so apparently on the recommendation of then United States Magistrate Judge James H. Payne. Hog an appealed that dismissal, and a panel of this court reversed the district cou rt’s dismissal and remanded the case to the district court. Hogan v. Okla. Dept. of Corrections , No. 01-7091, 2002 WL 12272 (10th Cir. Jan. 4, 2002). The only i ssue on remand was whether defendants violated Hogan’s Eighth Amendment rights because they knowingly forced him to engage in work which caused him pain and/or aggravated a prior medical condition. On remand, the case was assigned to former Magistrate Judge Payne, who had by this time been appointed a United States dis trict court judge. Defendants-6-

filed a response to this court’s order and filed a motion for summary judgment, which the district court granted. Hogan appeals, arguing that the district court erre d in granting summary judgment to defendants on his Eighth Amendment clai m. In support of this argument, Hogan asserts ten specific errors alleged ly committed by the district court: (1) Judge Payne suffered from a conflict of interest in this case because he was the magistrate judge who had previously recomme nded dismissal of the action as frivolous; (2) defendants’ response to th is court’s remand was “declared ‘moot’ for being filed out of time,” Appellant’s Br . at 2, and therefore should not have been considered by the district court; (3) the medical policies upon which defendants relied in treating Hogan were dated July23, 2001, some ten months after Hogan’s civil rights complaint was initially filed, and therefore could not be invoked as justification for their conduct, nor cou ld the court rely upon defendants’ affidavits, which Hogan asserts were un notarized; (4) the district court erred in denying Hogan’s motion for a defaultjudgment when defendants “were in fact in default for failing to respond in the allowable time frame,” id. at 3; (5) the district court erred in denying Hogan’s motion for a restraining order or injunction “when the plaintiff[’]s mail to the court is being removed from the correctional center post office and or disappearing in a suspicious manner,” id. ; (6) the district court erred in refusing to permit Hogan to amend his complaint;-7-

(7) the district court erred in refusing to conside r issues raised in a supplemental brief filed by Hogan; (8) “whether the lower distri ct court can totally ignore sworn and notarized affida[v]its from two witnesses who saw the medical records being handed along with memos to Anita Trammell, Th omas Sharp, then to Donnie Workman on the farm at the same time that th e plaintiff was assigned there,” id. ; (9) whether any defendants are entitled to immuni ty; and (10) whether defendants’ attorney, Linda Soper, can properly rep resent defendants when she allegedly failed to make an entry of appearance bef ore the district court.

DISCUSSION We review the grant of summary judgment de novo, ap plying the same standard as did the district court. Arndt v. Koby , 309 F.3d 1247, 1250 (10th Cir. 2002). “Summary judgment is proper when the ‘plead ings, depositions, answers to interrogatories, and admissions on file, togethe r with the affidavits, if any, show that there is no genuine issue as to any mater ial fact and that the moving party is entitled to a judgment as a matter of law.’” Id. at 1250-51 (quoting Fed. R. Civ. P. 56(c)). Hogan argues in conclusory fashion that Judge Payne should have recused himself because of bias, on the ground that, while serving as a magistrate judge, he had recommended that Hogan’s complaint be dismis sed with prejudice. We-8-

perceive no basis for recusal. To the extent Hogan argues that Judge Payne’s prior adverse ruling suggested bias, we reject thatas a basis for seeking recusal.
See Liteky v. United States , 510 U.S. 540, 555 (1994); Sac & Fox Nation v.
Cuomo , 193 F.3d 1162, 1168 (10th Cir. 1999) (noting that“merely adverse rulings can almost never constitute grounds for dis qualification”). To the extent Hogan seeks an evidentiary hearing on this matter, assuming he sought such a hearing before the district court, we conclude no s uch hearing is or was warranted. Hogan’s argument relating to defendants’ allegedly “moot” response to this court’s order in the first appeal lacks factual sup port. The district court directed defendants to file a response to this court’s orderremanding Hogan’s Eighth Amendment claim. Defendants timely filed a motion for enlargement of time to file their response. Because defendants then filed the response before the district court ruled on the motion for enlargement of time, the court accepted the response and found the motion for enlargement of time moot. No error occurred in connection with that ruling. Hogan’s request for adefault judgment was apparently premised in part upon defendants’ motionfor enlargement of time, and in part upon defendants’ alleged failure to include the letter “P” following the case number in all pleadings. We discern no error in the district court’s denial of Hogan’s motion for a default judgment.3 Hogan argues that in granting summary judgment to d efendants, the

district court erroneously relied upon medical poli cies dated after the events at issue in this case, and upon unnotarized affidavits from defendants. We disagree. There is no evidence that the district court relied upon those medical policies in granting summary judgment, nor do we perceive any d eficiency in defendants’ affidavits. -9- Hogan’s arguments relating to the denial of his mot ion for a restraining order or injunction, the district court’s alleged f ailure to permit him to amend his complaint, and the court’s refusal to consider argu ments made in his supplemental brief all stem from his allegation that prison auth orities were interfering with his mail, thereby interfering with his pursuit of this action. The district court correctly observed that the only issue on remand fr om this court was Hogan’s Eighth Amendment claim, and any new allegations wou ld need to be presented in a new action. Finally, the record does not supportHogan’s allegation that Ms. Soper is not the proper attorney of record for defe ndants. Hogan’s remaining claims of error are all subsumed within the merits of his primary argument, which this court remanded to the district court, that defendants violated his Eighth Amendment rights by ignoring hi s alleged medical restrictions. We affirm the district court’s grantof summary judgment to defendants on this claim. 3 First, the court correctly held that defendants DOC and OCI are immune from suit under the Eleventh Amendment. See Sturdevant v. Paulson , 218 F.3d-10-

1160, 1164 (10th Cir. 2000). The court also correc tly held that defendant Warden Boone should be dismissed from the case because Hog an failed to allege any personal participation by the Warden and “[p]ersona l participation is an essential allegation in a § 1983 claim.” Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir. 1996). [I]n cases where prisoners allege that inadequate o r delayed medical care violated their Eighth Amendment rights, it has been established that prison officials violate the Eighth Amendment [only] when they are deliberately indifferent to the serious medical needs of prisoners in their custody. Eighth Amendment claims alleging inadequate or delayed medical care thus involve both an objective and a subjective component, such that we must determine both whetherthe deprivation is sufficiently serious and whether the [government] official acted with a sufficiently culpable state o f mind. Oxendine v. Kaplan , 241 F.3d 1272, 1276 (10th Cir. 2001) (citations and quotations omitted); see also Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). The district court correctly granted summary judgme nt to the remaining defendants on the Eighth Amendment claim, finding t hat defendants established the absence of any genuine issue of material fact a s to either the subjective or objective components of that claim. Defendants’ af fidavits establish that when Hogan was transferred from DCF to MACC, he had no m edical restrictions, that he worked for a month with no medical problems, and that when he sought medical care at MACC, he was never diagnosed with a hernia, but he was in fact-11-

placed on a medical restriction. He does not dispu te those facts, nor allege that he was forced to continue work while on the medical restriction imposed by MACC medical staff. While Hogan’s supporting affid avits indicate he tried to show MACC work staff his DCF medical restrictions, those restrictions were two to four years old and expired. We therefore affirm the district court’s grant of summary judgment to defendants.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge