*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of this
-2-

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore

ordered submitted without oral argument.

Pro se plaintiff, Dino Bellazerius, an inmate at the federal correctional

institution at Florence, Colorado, claims the prison warden and medical staff were

deliberately indifferent to his serious hernia condition, 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 treating prison physician Dr. Barnes

to compel surgery to repair his hernia and sought damages for pain and suffering

endured during his wait for surgery. Mr. Bellazerius subsequently received surgery,

and now seeks only damages in the amount of $5000 from 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 of 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. Bellazerius further complains that,

upon receipt of the surgeon's recommendation to operate, the prison medical staff

waited an additional two months, until the filing of Mr. Bellazerius' lawsuit, to

arrange for his surgery and to perform necessary pre-operative blood tests. During
-3-

the two-year wait for surgery, Mr. Bellazerius alleges he suffered pain and fear that

his hernia would develop into a life threatening condition. 

The district court ordered a Martinez report pursuant to Martinez v. Aaron, 570

F.2d 317, 319 (10th Cir. 1978). The Martinez report 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 lower bunk. Mr. Bellazerius was

seen by the Florence medical staff several times over the next three years: four times

for hernia evaluation, four times for other medical complaints. On several occasions,

he requested and received prescription refills. At his hernia examinations, Mr.

Bellazerius’ condition was evaluated, his allowable work lifting limit was reduced

twice, and he was prescribed a rest period each hour. 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 permission to receive surgery was

obtained on December 8, and the surgery was performed on January 31, 1996.

Mr. Bellazerius responded to the Martinez report 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 his 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' . . . proscribed 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 indifference does not arise from

a difference in opinion about an inmate-patient's treatment 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 evaluated at regular intervals by

prison medical staff. His lifting limit was reduced twice and rest was prescribed

during each hour. The prison officials neither ignored nor aggravated Mr.

Bellazerius’ condition. Mr. Bellazerius is now doing 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 surgery should have been performed,

and “a complaint that a physician has been negligent in diagnosing or treating a

medical condition does not state a valid claim of medical mistreatment under the

Eight Amendment.” Id. at 106. 

The district court expressed sympathy, as does this court, for Mr. Bellazerius'

serious medical condition and any pain he might have suffered while waiting for

surgery. But a difference of opinion between Mr. Bellazerius and the prison medical
-5-

staff about his medical condition, and a wait of two 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