*This order and judgment is not binding precedent, except under the doctrines of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.
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After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

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

ordered submitted without oral argument.

Erwin Bartlett, an inmate at the New Mexico penitentiary, 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 special diet for those having

hepatitis C; refuse medication for his pain, nausea and other hepatitis symptoms;

and refuse to let him “lay-in” when his hepatitis symptoms render him too weak

and sick to work. 

Mr. Bartlett’s complaint, inclusive of its attachments, shows on its face that

treatment of hepatitis C with interferon Alpha is only 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 that the treatment may cause

serious side effects such as neuropsychiatric symptoms. Id., Tab. I at Ex. A, p.4. 

In such cases, doses must be reduced to potentially ineffective levels in 14% of

cases and completely stopped in 7% of cases. Id. Thus, while Bartlett complains
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that some defendants misleadingly refer to interferon A as experimental,

obviously such references concern the questionable, marginally effective, and

problematic usefulness of this drug treatment.

Notwithstanding Mr. Bartlett’s allegations about the state’s refusing

treatment solely on financial grounds, the complaint shows that this is a quarrel

between Mr. Bartlett and multiple doctors regarding the appropriate handling of

his medical condition. As the district court correctly noted, a difference over

medical treatment does not state an Eighth Amendment 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 policies and failure to

include hepatitis C on the list of chronic medical conditions governed by special

policies. While corrections authorities may, and probably will, develop

guidelines regarding the use of interferon A for treating 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 for those stated in the

Memorandum Opinion of the district court, filed April 29, 1997, we affirm the
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district court’s dismissal of the complaint for failure to state a claim about these

issues.

The district court did not specifically address Mr. Bartlett’s claims

regarding denial of treatment for allegedly excruciating 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 address 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, see Mitchell v. Maynard, 80

F.3d 1433, 1441 (10th Cir. 1996) (personal participation 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 Shanks, Medical Director Joe

Wise, Dr. Mary Jones, Physician Assistant Harvey Stowe, 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),
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was obtained from the prison, we cannot tell whether Mr. Bartlett’s complaints as

to these defendants rise to the level of seriousness or risk to Mr. Bartlett’s health,

or degree of subjective culpability, necessary to state 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 allegations of the

complaint and digging beneath conclusory allegations. 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 judgment, 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 defendants with respect to the

claims indicated. 

Accordingly, we AFFIRM the judgment of the district court in part,

REVERSE in part, and REMAND for further proceedings.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge