## United S tates Co u rt of App e als FOR THE EIGHTH CIRCUIT

________________ No. 00-2 0 27

________________ Beck , for m erl y kno wn as David Wa y ne Vand e rbeck, Appellan t ,
v. Eri c Skon; D a vi d Crist ; Chri s topher Ceman, Dr., Appelle e s. * * * * * * * * * * * Appeal from the United States Distric t Court fo r the District of Minnesota.

________________ Subm i tted: Feb r uary 1 6, 2001 Filed June 7, 2001

________________ Before RICHARD S. ARNOLD, LAY, and HANSEN, Circ u it Judg e s.

________________ HANSEN, C ircuit Judge.
Davi d Wayne V anderbeck (Beck ) is an in m ate at th e Minnesota Correctional Facilit y in Still w ater, M innesota , where h e is serving a 360- m onth senten c e for com m ittin g second degree murder. Beck a ppeals the district court's grant of sum m ary judg m en t in his 42 U

. S.C. § 1983 (Supp

. IV 1998) action against defendants. Beck contend s that defendants violated his constitutional right s under the E ighth and Fourteen t h Am endmen t s by f ailing to re l ocate hi m to a diff eren t cell, f ai l ing to provid e him w ith a pres c ribed m edical d e vice, a n d conditionin g his havin g ne eded2

surgery on his execution of a release of liability. Because thereis a genuine issu e of materialfact abou

t whether the surgic al consent

form s were r

eleases o f prospec tive lia bil ity, as Beck contends, or m erely form s authoriz ing treatm ent, we reverse the district c ourt's ord er in par t and rem and for fu rther pro ceedings.
I.
Beck suffered a gunshot wound on August 23, 1978, that left him with a bullet perm anently

lodged near

his spine tha

t affec ts his ne ural functioning. Beck began having pain, cr

ampin g, and num

bness in h is back and lo wer extr emiti es in 1996. Beck's physicians determined that walking and clim bing stairs were exacerb ating his injury and recom

mende d that priso n officia ls relocate Beck to a cell that was closer t o the cafe teria and

infirmary t o minim

ize furt her discom

fort. B eck demanded tha t he be plac ed in cell hall D-- the cell hall close st to the ca feteria --or be transf erred to another penitent iary that hous ed a medical uni t. T he S tillwater nursing sup ervisor explained to Beck tha

t the prison

could not fulfill his spec ific rel ocation re quest because Beck did no t mee t the prison 's crite ria for cell hall D inm

ates; cel l hall D was restricted to inmates with ce rtain jo b assignm ents who c ompor ted with st

ringent behavioral standards. Further more , he wa s not

diagnosed with an acute or terminal illness necessita

ting placem ent in a m edical uni t. Inste ad of rel ocation, prison official s offered to allow Beck to use a w

heelchair or to have

mea ls delivered to his cell. B eck refu sed both acc omm odations.
Beck also suffers from a right-sided hernia that was diagnosed when he w as referred to Dr. Michael Tran in Oc tober 1997. Dr. Tran recom mended that Beck undergo surgery to repair the hernia, but Beck ref used to execute t

he requisi te medical permit forms so the su rgery was indefin itely postp oned. As a tempora ry alternat ive to surgery, Dr. Tran recomm ended that Beck use a medicaldevice kn own as a truss. A truss f

unctions sim

ilarly to a girdle

by holding a

muscl e wall f

irml y in place and stabilizin g a hernia . Beck r efused to b e fitted f

or or to w ear a tr

uss.3

Dr. Christopher Ceman began caring for Be ck in January 1999. Dr. Cem an opined that Beck's hernia had apprecia bly wo rsened an d that surgery w as the desired course of treat

ment. Beck, ho wever, still ref used to sign the sur

gical per mit f orms, and his h ernia remained un repaired.
Beck filed his current ac tion in May 1999 again st Dr . Ceman; David Crist, wardenat the Stillwater correctional facility; a nd Eri k Sko n, the ass istant comm ission e r of the Minnesota Department of Corrections. I n recomm ending that defendant s' motion s for sum mary judgm ent be gra

nt e d, the magistrate

judge c oncluded that "[n] othing in the r ecord dem

onstrates that any

Defenda nt w a s delibera tely indifferent to Plaintiff's medical needs. . . . [T]he r ecord indicat es th at Plaintiff has refused to undergo proposed treatment which would be beneficial to his complai n ts." (Report & Recom menda tion at 17. ) The dis trict cour t adopted the magis trate jud ge' s re po rt a nd rec omm endation and grante d summ

ary j udgmen

t to defendant s over Bec k's object ions. Bec k appeals, asserting that beca

use genuine issues of material fact are pr esent, summ ary judgm ent was inappropriate.

II. The district c ourt's gra

nt of sum mary judgment is revi ewed de n ovo. Jolly v. K nudsen , 20 5 F. 3d 10 94 , 10 96 (8t h Ci r. 2 00 0). We re ver se a n aw ard of s umma r y judgm ent only if we find that a material issue of fact does exist or that the district court made

an incorrect concl

usion of law. S ee Fed. R. Civ. P. 56(c). "[W] e must take as true those fact s asserte d by the p laintiff that are properly supported in

the record." Tlam

ka v. Ser rell , 244 F.3d 628, 632 (8th Cir. 2001). Be ck co ntends that even if we fail to find a genuine issue of material f act, this case must be rem anded regardle ss because the districtcourt neglected to advise him as a pro se li tigant how to properly

respond to de fendants' motion s for su mm ary judgm ent. We disagree. Although several of

our sister circuits require a district court to provide particularized in str uctions to a pro se l itigant at the summary judgment stage, we h ave not. Cf.4

Ackra Direct Mktg. Cor

p. v. Fingerhut Cor

p. , 86 F.3d . 852, 85 6 (8th Cir. 1996) (recogni zing that pro se

represe ntation

does not excuse a part

y fro m com

plying with the Federal

Rules of C ivil Proce dure); Carman v. Tr eat , 7 F.3d 1 379, 1381 (8th Cir. 1993) (failing to allow pro se prisoner to disregard Federal Rules of Civil Procedure). Like any oth er civil l itigant, B eck was r equired to respond to de fendants' motion s with specificfactual support for his claim s to avoid

summ ary j udgmen

t. See Fed. R. Civ. P. 56(e ) ("[An ] adver se party may not rest upo n the mere allegatio ns or denia ls of . . . [ his] ple ading, but . . . [m ust], b y aff

idavits or a s otherwi se pr ovided in this rule, . . . s et forth sp ecific f acts sh owing that there is a genuine issue for trial."); Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 249-52 (1986) (explaining that nonmova ntmust offer controverting affidavits or evidence from which a reasonab le jury could retu

rn a verdi ct in his favor). Moreover , Beck i s a frequent litigator in our court and un derstands t

he juris prudential

process.
"We look to the substant

ive law t o determ

ine whether an element is essential to a case, and '[o]n ly d isputes over facts tha t might affect the outcom

e of the sui t underthe govern ing law will properly preclude the entry of summa

ry judgm ent.'" Dula nyv. Ca rnahan , 132 F.3 d 1234, 1237 ( 8th Cir. 1 997) (quotin g Anderson , 477 U.S. at 248). A claim

under theEighth Am

endment, as app lied to the s tates thro ugh the Fourteen

th Am endment, m

ust show both

that the st ate acti on has denie d the prisoner"'the minim

al civiliz ed me asure of l ife's ne cessities ,'" and t hat the sta te actors have shown deliberate indifference to the priso ner's medical need s. Wilson v. Seiter , 501 U.S. 294, 298 (19 91) (quoting Rhodes v. Chapman , 452 U.S. 337, 347 (1981)); see also Estelle v. Gam

ble , 429 U. S. 97, 10 4-05 (1976) (ho lding fa ilure to sup ply medical care co nstitute s an Eighth Am endment violation i f it is the r esult of delibera te indifference to a p risoner' s serious m edical ne eds; alleg ations of "inadvert ent

fai lu re t o p rov id e ad equ ate me dical c are" are insuffic ient to esta blish culpability); Smit

h v. Jenkins , 919 F.2d 90, 93 (8th Cir. 1990 ) (statin g that denial of essential care violat es the Eigh th Amendment).5

We have no doubt that Beck suffers from a broadrange of physic al com plaints. He has, how ever, be en seen in the prison infirm ary a t least sixt

y tim es for these compl aints, and twent

y-six o f those visi ts werewit h D r. Cem

an during the

period from January 11, 1999, to Septem

ber 30, 199 9. Mult iple co ntacts with medical personnel do not nece ssarily precludea finding of

delibera te indi fferenc e, see, for example, Warren v. Fan

ning , 950 F.2 d 1370, 1373 (8th Cir. 1991), cert. denied , 506 U.S. 836 (1992), but in this ca se, the record clearly ref lects thatprison off

icials hav e conscienti ously

attempted to me et Beck's medical needs and have continually been rebuffed by Beck's r efusal to compl

y wit h recom mende d treatm

ent. Pr ison offic ials offered accom modations to Bec k, which were in tended to m

inimiz e his walking

such as the use of a wheelchair or to eat m eals in his cell, but he refused both of th ese options. Prison of

ficials r epeatedl y off ered to f it Beck w ith a truss, but again h e r efused. Having ca

refully reviewe d the sum

mary judgm ent ma

terials pertaining to these two issues and the offered care that Beck has r

eceived f or them , we ag

ree wit h the district court that Beck has failed to presen t a triabl e is sue of fac t evidencing a violation of his Eig

hth Am endment rights. Beck's d isagreem ents with t

he prison medical staff ab out his care do not esta blish delibe rate indif

ference and is not acti onable. See Long v. N ix , 86 F.3d 761, 765 (8t

h Cir. 199 6) (holding p rison official s do not viol ate E ighth Amendment w hen, in exercising professional judgment, they refuse to implement inmate's req uested co urse of treat ment).
The issue of the surgery consent forms is a f ar more problematic matter. Dr. Ceman statedin an Augus t 23, 1999, progress n ote that Be ck would agree to have his hernia repaired, but "only if he didn't have to sign an inform ed consent

and only if he could be put under

general a naesthesia

[sic]. " (Appel lant's A

pp. at A243.) In

a sworn reply to the defen dants' m

otions for s ummary j udgmen t filed in t

he distric t court, Beck steadfas tly m

aintained that in order for his h ernia to be repaire d, the pri son conditioned the proce dure on Be ck's rel ease of all futur e liability

that might arise from the surger

y. S ubsequent to this case being subm itted to our court, defendant s Skon and Crist filed a m

otio n to supplem ent the re cord with sworn sta

teme nts and1 In August 20 00, Dr. Cem an filed a motion to supplement the re cord with a June 2000 phy sician pro gress note. We den y his request. 6 documents purporting to be substantially similar to those forms presented to Beck. 1 We are trou

bled by the absenc e of the c onsent forms inthe sum mary judgm ent recor

d. Although mere discom fort and in convenienc e do not im plicate th e Constitution, see Whitnack v. Douglas County , 16 F.3d 954, 956-58 (8th Cir. 1994), if prison off

icials indeed conditioned anecessar y m edical pr

ocedure on

Beck's r elease of liability , their action coul d establish a deliberate indifference to Be ck's Eig hth Amendment

rights to basic medical care

. See Crooks v. Nix , 872 F.2 d 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 opp ortunity

to challen ge the auth enticity of these for ms or to dep os e th e af fia nt s ab ou t th em. Whether Beck w ill in fac t be able to prove that

defendant s conditioned

surgery on a total r

elease of liability is another matter, but for pur

poses of thi s appeal, our conce rn is other wise. B ased upon th e insufficiency

of the record and the apparent conflicting sworn statements, sum mary judgment on this issue was prem ature.
III. For the forgoing reasons t

he decision of the district court is affirmed in part and reversed in part. Defenda

nts' m otions to suppl emen t the record ar e denied. The cas e is rem anded for

proceedings consiste nt with this opinion.
A tru e co py. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.