United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2027

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Beck, formerly known as David

Wayne Vanderbeck,

Appellant,

v.

Eric Skon; DavidCrist;Christopher

Ceman, Dr.,

Appellees.

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Appeal from the United States

District Court for the

District of Minnesota.

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Submitted: February 16, 2001

 Filed June 7, 2001

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Before RICHARD S. ARNOLD, LAY, and HANSEN, Circuit Judges. 

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HANSEN, Circuit Judge.

David Wayne Vanderbeck (Beck) is an inmate at the Minnesota Correctional

Facility in Stillwater, Minnesota, where he is serving a 360-month sentence for

committing second degree murder. Beck appeals the district court's grant of summary

judgment in his 42 U.S.C. § 1983 (Supp. IV 1998) action against defendants. Beck

contends that defendants violated his constitutional rights under the Eighth and

Fourteenth Amendments by failing to relocate him to a different cell, failing to

provide him with a prescribed medical device, and conditioning his having needed
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surgery on his execution of a release of liability. Because there is a genuine issue of

material fact about whether the surgical consent forms were releases of prospective

liability, as Beck contends, or merely forms authorizing treatment, we reverse the

district court's order in part and remand for further proceedings.

I.

Beck suffered a gunshot wound on August 23, 1978, that left him with a bullet

permanently lodged near his spine that affects his neural functioning. Beck began

having pain, cramping, and numbness in his back and lower extremities in 1996.

Beck's physicians determined that walking and climbing stairs were exacerbating his

injury and recommended that prison officials relocate Beck to a cell that was closer

to the cafeteria and infirmary to minimize further discomfort. Beck demanded that

he be placed in cell hall D--the cell hall closest to the cafeteria--or be transferred to

another penitentiary that housed a medical unit. The Stillwater nursing supervisor

explained to Beck that the prison could not fulfill his specific relocation request

because Beck did not meet the prison's criteria for cell hall D inmates; cell hall D was

restricted to inmates with certain job assignments who comported with stringent

behavioral standards. Furthermore, he was not diagnosed with an acute or terminal

illness necessitating placement in a medical unit. Instead of relocation, prison

officials offered to allow Beck to use a wheelchair or to have meals delivered to his

cell. Beck refused both accommodations.

Beck also suffers from a right-sided hernia that was diagnosed when he was

referred to Dr. Michael Tran in October 1997. Dr. Tran recommended that Beck

undergo surgery to repair the hernia, but Beck refused to execute the requisite

medical permit forms so the surgery was indefinitely postponed. As a temporary

alternative to surgery, Dr. Tran recommended that Beck use a medical device known

as a truss. A truss functions similarly to a girdle by holding a muscle wall firmly in

place and stabilizing a hernia. Beck refused to be fitted for or to wear a truss.
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Dr. Christopher Ceman began caring for Beck in January 1999. Dr. Ceman

opined that Beck's hernia had appreciably worsened and that surgery was the desired

course of treatment. Beck, however, still refused to sign the surgical permit forms,

and his hernia remained unrepaired. 

Beck filed his current action in May 1999 against Dr. Ceman; David Crist,

warden at the Stillwater correctional facility; and Erik Skon, the assistant

commissioner of the Minnesota Department of Corrections. In recommending that

defendants' motions for summary judgment be granted, the magistrate judge

concluded that "[n]othing in the record demonstrates that any Defendant was

deliberately indifferent to Plaintiff's medical needs. . . . [T]he record indicates that

Plaintiff has refused to undergo proposed treatment which would be beneficial to his

complaints." (Report & Recommendation at 17.) The district court adopted the

magistrate judge's report and recommendation and granted summary judgment to

defendants over Beck's objections. Beck appeals, asserting that because genuine

issues of material fact are present, summary judgment was inappropriate.

II.

The district court's grant of summary judgment is reviewed de novo. Jolly v.

Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). We reverse an award of summary

judgment only if we find that a material issue of fact does exist or that the district

court made an incorrect conclusion of law. See Fed. R. Civ. P. 56(c). "[W]e must

take as true those facts asserted by the plaintiff that are properly supported in the

record." Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001). Beck contends that

even if we fail to find a genuine issue of material fact, this case must be remanded

regardless because the district court neglected to advise him as a pro se litigant how

to properly respond to defendants' motions for summary judgment. We disagree.

Although several of our sister circuits require a district court to provide particularized

instructions to a pro se litigant at the summary judgment stage, we have not. Cf.
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Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d. 852, 856 (8th Cir. 1996)

(recognizing that pro se representation does not excuse a party from complying with

the Federal Rules of Civil Procedure); Carman v. Treat, 7 F.3d 1379, 1381 (8th Cir.

1993) (failing to allow pro se prisoner to disregard Federal Rules of Civil Procedure).

Like any other civil litigant, Beck was required to respond to defendants' motions

with specific factual support for his claims to avoid summary judgment. See Fed. R.

Civ. P. 56(e) ("[An] adverse party may not rest upon the mere allegations or denials

of . . . [his] pleading, but . . . [must], by affidavits or as otherwise provided in this

rule, . . . set forth specific facts showing that there is a genuine issue for trial.");

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52 (1986) (explaining that

nonmovant must offer controverting affidavits or evidence from which a reasonable

jury could return a verdict in his favor). Moreover, Beck is a frequent litigator in our

court and understands the jurisprudential process.

"We look to the substantive law to determine whether an element is essential

to a case, and '[o]nly disputes over facts that might affect the outcome of the suit

under the governing law will properly preclude the entry of summary judgment.'"

Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997) (quoting Anderson, 477

U.S. at 248). A claim under the Eighth Amendment, as applied to the states through

the Fourteenth Amendment, must show both that the state action has denied the

prisoner "'the minimal civilized measure of life's necessities,'" and that the state actors

have shown deliberate indifference to the prisoner's medical needs. Wilson v. Seiter,

501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981));

see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (holding failure to supply

medical care constitutes an Eighth Amendment violation if it is the result of

deliberate indifference to a prisoner's serious medical needs; allegations of

"inadvertent failure to provide adequate medical care" are insufficient to establish

culpability); Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990) (stating that denial of

essential care violates the Eighth Amendment). 
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We have no doubt that Beck suffers from a broad range of physical complaints.

He has, however, been seen in the prison infirmary at least sixty times for these

complaints, and twenty-six of those visits were with Dr. Ceman during the period

from January 11, 1999, to September 30, 1999. Multiple contacts with medical

personnel do not necessarily preclude a finding of deliberate indifference, see, for

example, Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991), cert. denied, 506

U.S. 836 (1992), but in this case, the record clearly reflects that prison officials have

conscientiously attempted to meet Beck's medical needs and have continually been

rebuffed by Beck's refusal to comply with recommended treatment. Prison officials

offered accommodations to Beck, which were intended to minimize his walking such

as the use of a wheelchair or to eat meals in his cell, but he refused both of these

options. Prison officials repeatedly offered to fit Beck with a truss, but again he

refused. Having carefully reviewed the summary judgment materials pertaining to

these two issues and the offered care that Beck has received for them, we agree with

the district court that Beck has failed to present a triable issue of fact evidencing a

violation of his Eighth Amendment rights. Beck's disagreements with the prison

medical staff about his care do not establish deliberate indifference and is not

actionable. See Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (holding prison

officials do not violate Eighth Amendment when, in exercising professional

judgment, they refuse to implement inmate's requested course of treatment). 

The issue of the surgery consent forms is a far more problematic matter. Dr.

Ceman stated in an August 23, 1999, progress note that Beck would agree to have his

hernia repaired, but "only if he didn't have to sign an informed consent and only if he

could be put under general anaesthesia [sic]." (Appellant's App. at A243.) In a sworn

reply to the defendants' motions for summary judgment filed in the district court,

Beck steadfastly maintained that in order for his hernia to be repaired, the prison

conditioned the procedure on Beck's release of all future liability that might arise

from the surgery. Subsequent to this case being submitted to our court, defendants

Skon and Crist filed a motion to supplement the record with sworn statements and
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In August 2000, Dr. Ceman filed a motion to supplement the record with a

June 2000 physician progress note. We deny his request.

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documents purporting to be substantially similar to those forms presented to Beck.1

We are troubled by the absence of the consent forms in the summary judgment record.

Although mere discomfort and inconvenience do not implicate the Constitution, see

Whitnack v. Douglas County, 16 F.3d 954, 956-58 (8th Cir. 1994), if prison officials

indeed conditioned a necessary medical procedure on Beck's release of liability, their

action could establish a deliberate indifference to Beck's Eighth Amendment rights

to basic medical care. See Crooks v. Nix, 872 F.2d 800, 804 (8th Cir. 1989) ("Where

a prisoner needs medical treatment prison officials are under a constitutional duty to

see that it is furnished."). Beck has had no opportunity to challenge the authenticity

of these forms or to depose the affiants about them. Whether Beck will in fact be able

to prove that defendants conditioned surgery on a total release of liability is another

matter, but for purposes of this appeal, our concern is otherwise. Based upon the

insufficiency of the record and the apparent conflicting sworn statements, summary

judgment on this issue was premature.

III.

For the forgoing reasons the decision of the district court is affirmed in part and

reversed in part. Defendants' motions to supplement the record are denied. The case

is remanded for proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.