* This order and judgment is not binding precedent, except under the doctrines of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 of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 16 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERWIN BARTLETT,

Plaintiff - Appellant, No. 97-2160

v. (D. New Mexico) CORRECTIONAL MEDICAL SERVICES, INC.; LARRY RUSTIMIER, Physician Assistant; JOE WISE, Medical Director; HARVEY STOWE, Physician Assistant; MARY JONES, Doctor; DR. ETTINGER; DR. SWABOLA; DR. ROBESON; ELI FRESQUEZ, Bureau Chief of Health Services; DAVID ARCHULETA, Housing and Security Administrator; ELMER BUSTOS, Associate Warden; JOHN SHANKS, Warden; JOHN DOE, Doctors 1-3; and KENNETH TREMKO, Programs Director,

Defendants - Appellees. (D.C. No. CIV-96-1620-SC)

ORDER AND JUDGMENT *

Before ANDERSON , HENRY , and BRISCOE , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Erwin Bartlett, an inmate at the New Mexico peniten tiary, appeals from the dismissal, for failure to state a claim, of his 42 U.S.C. § 1983 action against numerous medical and other corrections personnel. He alleges in his complaint that he is being cruelly and unusually punished in violation of the Eighth Amendment because the defendants: refuse to treat his hepatitis C with Interferon Alpha, an FDA approved drug; refuse to provide a sp ecial diet for those having hepatitis C; refuse medication for his pain, nauseaand other hepatitis symptoms; and refuse to let him “lay-in” when his hepatitis s ymptoms render him too weak and sick to work. Mr. Bartlett’s complaint, inclusive of its attachme nts, shows on its face that treatment of hepatitis C with interferon Alpha is o nly effective in 20% of cases. R. Vol. I, Tab 1 at 9. Additionally, Bartlett’s attachments indicate that relapse is common with such treatment (50% of cases), and thatthe treatment may cause serious side effects such as neuropsychiatric sympt oms. Id. , Tab. I at Ex. A, p.4. In such cases, doses must be reduced to potentiallyineffective levels in 14% of cases and completely stopped in 7% of cases. Id. Thus, while Bartlett complains-3-

that some defendants misleadingly refer to interfer on A as experimental, obviously such references concern the questionable, marginally effective, and problematic usefulness of this drug treatment. Notwithstanding Mr. Bartlett’s allegations about th e state’s refusing treatment solely on financial grounds, the complain t shows that this is a quarrel between Mr. Bartlett and multiple doctors regarding the appropriate handling of his medical condition. As the district court corre ctly noted, a difference over medical treatment does not state an Eighth Amendmen t claim of deliberate indifference. See Estelle v. Gamble , 429 U.S. 97, 105-06 (1976); Handy v. Price , 996 F.2d 1064, 1067 (10th Cir. 1993); Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980). Mr. Bartlett also alleges violations of existing po licies and failure to include hepatitis C on the list of chronic medical conditions governed by special policies. While corrections authorities may, and p robably will, develop guidelines regarding the use of interferon A for tr eating some inmates, neither the cited policies or regulations, or the absence of a policy, confers a constitutional right under the Fourteenth Amendment. See Sandin v. Conner , 515 U.S. 472, 115 S. Ct. 2293, 2300 (1995). Accordingly, for these reasons and substantially fo r those stated in the Memorandum Opinion of the district court, filed Apr il 29, 1997, we affirm the-4-

district court’s dismissal of the complaint for fai lure to state a claim about these issues.The district court did not specifically address Mr. Bartlett’s claims regarding denial of treatment for allegedly excruci ating symptoms stemming from what we assume for this analysis is a serious case of hepatitis C: pain, nausea, and fatigue. And, the district court did not addre ss related claims concerning the need for, and denial of, a special diet, or Mr. Bartlett’s allegedly being forced to work when unable. As for these claims, Mr. Bartlett’s complaint fails adequately to show personal participation by most of the defendants, s ee Mitchell v. Maynard , 80 F.3d 1433, 1441 (10th Cir. 1996) (personal particip ation is an essential allegation of a § 1983 claim) and Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (conclusory allegations are insufficient); or, the requisite culpable state of mind.
See Farmer v. Brennan , 511 U.S. 825, 834 (1994); Wilson v. Seiter , 501 U.S. 294 298-99 (1991); Estelle , 429 U.S. at 104; Handy , 996 F.2d at 1066-67. However, taking the allegations of the complaint as true, we cannot say the same for five of the defendants: Warden John Shank s, Medical Director Joe Wise, Dr. Mary Jones, Physician Assistant Harvey St owe, and Physician Assistant Larry Rustimier. Because no report pursuant to Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978) or Gee v. Estes , 829 F.2d 1005, 1007-08 (10th Cir. 1987),-5-

was obtained from the prison, we cannot tell whethe r Mr. Bartlett’s complaints as to these defendants rise to the level of seriousnes s or risk to Mr. Bartlett’s health, or degree of subjective culpability, necessary to s tate an Eighth Amendment claim of denial of medical care. See Estelle , 429 U.S. at 104-05. While such a report or related hearing may not be used to resolve disputed issues of fact or to pass on the credibility of witnesses, see Janke v. Price , 43 F.3d 1390, 1392 (10th Cir. 1994); Gee , 829 F.2d at 1007, it is useful in informing the a llegations of the complaint and digging beneath conclusory allegation s. Gee , 829 F.2d at 1007; Hall , 935 F.2d at 1109. And, affidavits and additional materials may go further and permit disposition of the case on summary judgm ent, see , e.g. , Handy , 996 F.2d at 1065-69; but, of course, that would require service of the complaint, an answer and a motion. In any event, we are obliged at this juncture to reverse the judgment of the district court as to these five def endants with respect to the claims indicated. Accordingly, we AFFIRM the judgment of the districtcourt in part, REVERSE in part, and REMAND for further proceedings

. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge