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

### December 13, 2005

Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOE MARTINEZ,

Plaintiff-Appellant,

v. DR. RICHARD GARDEN, M.D., at the Utah State Prison, individually; DR. KENNON TUBBS, M.D., at the Utah State Prison, individually; DR. SIDNEY ROBERTS, M.D., at the Utah State Prison, individually; CHRIS ABBOTT, P.A., at the Utah State Prison, individually; TERRY JEFFERIES, P.A., at the Utah State Prison, individually; JOHN DOES 1-10, employees at the Utah State Prison, individually,

Defendants. No. 05-4019

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 2:03-CV-230-DB)
Submitted on appellant’s brief: Joe Martinez, Pro Se, Appellant.

Before LUCERO , ANDERSON , and BRORBY , Circuit Judges.* After examining the brief and appellate record, thi s panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- BRORBY , Circuit Judge.
Plaintiff, Joe Martinez, an inmate at the Utah Stat e Prison, appeals from an order of the district court dismissing his pro se, 42 U.S.C. § 1983 complaint for failure to state a claim on which relief may be granted. For the reasons below, we reverse the order and remand the case for further proceedings. *
THE COMPLAINT According to the allegations in the complaint, Mr. Martinez has a cyst on his left testicle and epididymis of his right testi cle. He claims that these conditions were diagnosed by a physician in June 20 02, and he was told that if his symptoms did not resolve themselves within a month, he would need surgery. Mr. Martinez alleges that his condition never impro ved and that defendants failed to provide the required surgery at either the prison or an outside facility. He alleges that he is in constant pain as a result of the failure to treat him. As to the failure to provide medical treatment, Mr. Martinez claims that defendants have told him that “there is nothing the y can do for [his] condition because he has missed medical appointments.” R. I. , doc. 7 at 3-4. He alleges1 None of the defendants were served in the di strict court. Thus, there are no

responses to the complaint, nor do they appear in this court on appeal. -3- that he has “not been informed of the medical appoi ntments,” and that he is “required to rely upon the staff at the Department of Corrections” to schedule and “arrange transportation” for his appointments. Id . at 4. His § 1983 complaint, which was filed following exh austion of his administrative remedies, seeks redress for violatio n of his Eighth Amendment right against cruel and unusual punishment, includi ng compensatory and punitive damages and an order directing defendants to provid e the prescribed medical care.
THE STANDARD OF REVIEW This court reviews a decision to dismiss for failur e to state a claim de novo, and “[d]ismissal of a pro se complaint . . . is pro per only where it is obvious that the plaintiff cannot prevail on the facts he has al leged and it would be futile to give him an opportunity to amend.” Gaines v. Stenseng , 292 F.3d 1222, 1224 (10th Cir. 2002) (quotation omitted). In addition to construing a pro se complaint liberally, this court “must accept the allegations of the complaint as true and construe those allegations, and any reasonable infe rences that might be drawn from them, in the light most favorable to the plaintiff.” Id . (citation omitted). 1
THE EIGHTH AMENDMENT-4-

A “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain prosc ribed by the Eighth Amendment.” Estelle v. Gamble , 429 U.S. 97, 104 (1976) (citation omitted). “This is true whether the indifference is manifeste d by prison doctors in their response to the prisoner’s needs or by prison guard s in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deli berate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” Id . at 104-05. “‘Deliberate indifference’ involves both an objecti ve and a subjective component.” Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). The objective component is met if the deprivation i s “sufficiently serious.”
Farmer v. Brennan , 511 U.S. 825, 834 (1994) (quotation omitted). “Amedical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock , 218 F.3d at 1209 (quotation omitted). “The subjective component is met if a prison offici al knows of and disregards an excessive risk to inmate health or safety.” Id . (quotation omitted). In measuring a prison official’s state of mind, “th e official must both be aware of-5-

facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Riddle v. Mondragon , 83 F.3d 1197, 1204 (10th Cir. 1996) (quotation omitted).

THE DISTRICT COURT ORDER The district court concluded that the allegations i n Mr. Martinez’s complaint were sufficient to establish an objective ly serious deprivation. However, the court found that the allegations faile d to meet the subjective test of deliberate indifference. In reaching this conclusion, the district court found that the “only factual allegation regarding deliberate indifference was th e alleged statement by Defendants that ‘there is nothing they can do for [ him] because he has missed medical appointments.’” R. I., doc. 22 at 5. The court attributed the lack of treatment to inadvertence or negligence on the part of defendants, and dismissed the complaint because a negligent or inadvertent fa ilure to provide medical care is not actionable in a § 1983 lawsuit. See Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980). Instead, viewing the allegations and drawing the re asonable inferences therefrom in the light most favorable to Mr. Martin ez, the complaint can be read to allege that defendants knew of his serious medic al condition, and despite this-6-

knowledge, failed to ensure that he received treatm ent. Knowledge of his medical condition, coupled with the alleged failure to info rm him of medical appointments or to arrange transportation, may give rise to an i nference that defendants acted with deliberate indifference. Alternatively, becau se Mr. Martinez also alleges that he was never informed of the medical appointme nts, one could infer that defendants did not make the appointments, thus also potentially establishing deliberate indifference. The district court’s summary conclusion that “[d]ef endants have attempted to provide [Mr. Martinez] treatment by arranging me dical appointments for him,” R. I., doc. 22 at 5, is not supported by any eviden ce, disregards the allegations that he has never been informed of the medical appo intments, and improperly construes the allegations in the complaint and the reasonable inferences drawn from them against Mr. Martinez, instead of in his f avor. In reaching this conclusion, we do not express any opinion regardingthe merits of the case. The district court’s order dismissing the complaintis REVERSED, and this matter is REMANDED for proceedings consistent with this opinion. Mr. Martinez’s motion to proceed in forma pauperis is GRANTED, and he is reminded of his continuing obligation to make parti al payments until he has paid the filing fee in its entirety.-7-