* This order and judgment is not binding precedent, e xcept under the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 10th Cir. R. 36.3.



### UNITED STATES COURT OF APPEALS Filed 10/29/96 TENTH CIRCUIT

DINO A. BELLAZERIUS, Plaintiff-Appellant,

v. JOE BOOKER, Warden, DR. DANIEL BURNETT, DR. BARNES, Defendants-Appellees. No. 96-1148 (D.C. No. 96-S-265) (Dist. Colo.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, KELLY 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-2-

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Pro se plaintiff, Dino Bellazerius, an inmate at th e federal correctional institution at Florence, Colorado, claims the priso n warden and medical staff were deliberately indifferent to his serious hernia cond ition, in violation of his Eighth Amendment rights. The district court dismissed the suit as legally frivolous under 28 U.S.C. § 1915(d). We affirm. Mr. Bellazerius filed a Bivens action against Warden Joe Booker, Health Services Administrator Daniel P. Burnett, and treat ing prison physician Dr. Barnes to compel surgery to repair his hernia and sought d amages for pain and suffering endured during his wait for surgery. Mr. Bellazeri us subsequently received surgery, and now seeks only damages in the amount of $5000 f rom each defendant for his pain and suffering. He alleges that he requested treatment and surgical evaluation for his hernia condition four times over a period o f twenty-three months before an appointment was scheduled with a surgeon, and that once he saw the surgeon, he was told “this surgery should have been done.” Mr. Bel lazerius further complains that, upon receipt of the surgeon's recommendation to ope rate, the prison medical staff waited an additional two months, until the filing o f Mr. Bellazerius' lawsuit, to arrange for his surgery and to perform necessary pr e-operative blood tests. During-3-

the two-year wait for surgery, Mr. Bellazerius allege s he suffered pain and fear that his hernia would develop into a life threatening co ndition. The district court ordered a Martinezreport pursuant to Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978). The Martinezreport explains that Mr. Bellazerius' hernia was noted by the prison medical staff during his intake examination in March 1993, and that he was consequently assigned to a lo wer bunk. Mr. Bellazerius was seen by the Florence medical staff several times ov er the next three years: four times for hernia evaluation, four times for other medical complaints. On several occasions, he requested and received prescription refills. Athis hernia examinations, Mr. Bellazerius’ condition was evaluated, his allowable work lifting limit was reduced twice, and he was prescribed a rest period each hou r. In October 1995, he requested and appears to have received medical idle status while he awaited consultation with a contract surgeon. That consultation occurred on November 28, at which time the surgeon recommended surgery. Administrative permis sion to receive surgery was obtained on December 8, and the surgery was perform ed on January 31, 1996. Mr. Bellazerius responded to the Martinezreport without noting any significant differences between his account and that of the prison officials. His primary complaint is that he did not get surgery for h is medical condition as quickly as he believes he should have. The district court concluded that these facts do not support a claim for deliberate indifference.-4-

"[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' . . . p roscribed by the Eighth Amendment.” Estelle v. Gamble , 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia , 428 U.S. 153, 182-183 (1976)). Deliberate indiff erence does not arise from a difference in opinion about an inmate-patient's t reatment plan, rather it arises from a refusal to treat a serious medical condition, or action taken to aggravate a condition. Id. at 104, n.10. In this case, Mr. Bellazerius was seen and evaluate d at regular intervals by prison medical staff. His lifting limit was reduce d twice and rest was prescribed during each hour. The prison officials neither ign ored nor aggravated Mr. Bellazerius’ condition. Mr. Bellazerius is now doin g well and has suffered no harm from any delay in receiving surgery. At most, Mr. Bellazerius has a difference of opinion with the medical staff as to when his surge ry should have been performed, and “a complaint that a physician has been negligen t in diagnosing or treating a medical condition does not state a valid claim of m edical mistreatment under the Eight Amendment.” Id. at 106. The district court expressed sympathy, as does this c ourt, for Mr. Bellazerius' serious medical condition and any pain he might hav e suffered while waiting for surgery. But a difference of opinion between Mr. B ellazerius and the prison medical-5-

staff about his medical condition, and a wait of tw o months for a surgery once it was considered necessary, do not constitute deliberate indifference. We therefore affirm-6-

the district court's dismissal of Mr. Bellazerius' claim as frivolous under 28 U.S.C. § 1915(d). ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge