* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 17 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

WAYLON EUGENE MAY,

Plaintiff-Appellant,

v. OKLAHOMA DEPARTMENT OF CORRECTIONS; DENNIS COTNER; JUDY WAKEN; K. RADER, RN; GRIFFIN MEMORIAL HOSPITAL; JOHN DOE, MD #1; JOHN DOE, MD #2; JOHN DOE, MD #3; C. MONTALVO, RN; JANE DOE, PA, Defendants-Appellees. No. 99-6267 (D.C. No. 98-CIV-633) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and HENRY , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). T herefore,-2-

appellant’s request for oral argument is denied, an d the case is ordered submitted without oral argument. Plaintiff Waylon Eugene May appeals the district co urt’s order adopting the magistrate judge’s report and recommendation, g ranting defendants’ motions to dismiss and for summary judgment on his 42 U.S.C . § 1983 complaint. We exercise jurisdiction pursuant to 28 U.S.C. § 12 91, and we affirm.

Background On Saturday, May 11, 1996, May, an inmate at the Bi ll Johnson Correctional Center (BJCC), injured his knee in a s oftball game. The injury was evaluated by a nurse from the BJCC medical staff, w ho treated the knee and instructed May to return on Monday for reassessment . Defendant Montalvo saw May on the following Monday, and after noting that he was probably suffering from a meniscal tear, treated the knee and recommen ded that he be seen at the orthopedic clinic as soon as possible. On May 24, May was examined at Griffin Memorial Hos pital, where the examining physician diagnosed a Grade II medial col lateral sprain and recommended that May be placed in a hinged knee bra ce and undergo six weeks of range of motion stretching exercises. The BJCC refused to issue May a hinged knee brace because it contained metal parts, but in stead issued May a neoprene-3-

knee brace. On follow-up, medical staff notes indi cate that May’s knee was healing well, and he was reminded to do his exercis es. On September 13, 1996, May was seen a second time at Griffin Memorial Hospital. Following this examination, the physician again prescribed a hinged knee brace and exercises, but released May to retur n to work with certain weight lifting restrictions. The physician did indicate t hat orthoscopy might be indicated in the future. May filed several requests for a hi nged knee brace rather than the neoprene knee brace, but his requests were denied f or security reasons. In January 1997, he again presented at the BJCC med ical center with knee pain. He stated that he twisted the knee while jog ging two weeks earlier. He was prescribed Naprosyn, but refused to take it. He fi led a request that his knee be surgically repaired, but was advised that a requestfor surgical repair would have to come from Griffin Memorial Hospital. Although M ay was offered physical therapy three times a week during late 1996 and ear ly 1997, he missed a number of appointments. His final appointment at Griffin Memorial Hospital on April 25, 1997, revealed no abnormalities in the knee. May brought this action against defendant Oklahoma Department of Corrections and a number of other defendants seekin g money damages for violations of his constitutional rights. In his co mplaint, May alleged that the BJCC’s refusal to issue him a hinged knee brace con stituted deliberate-4-

indifference to his serious medical needs. He also asserted an equal protection claim based on his allegation that another inmate h ad the use of a hinged brace. May avered that he had not received adequate medica l care and physical therapy following his knee injury. Following consideration of defendants’ motions and May’s responses, the magistrate judge issued findings and recommended th at May’s complaint against defendants Waken, Griffin Memorial Hospital, and th e John and Jane Does be dismissed for defective service. She further recom mended that the summary judgment motion of defendants Montalvo, Cotner, andRader be granted. Following de novo review of May’s objections, the d istrict court adopted the report and recommendation of the magistrate judge i n its entirety. On appeal, Mr. May raises issues asserting (1) thatthe district court erred in dismissing without prejudice his complaint as to certain defendants for failure to effect timely service of process, and (2) that t he district court erred in granting summary judgment to the remaining defendants on Mr. May’s claims of deliberate indifference to his serious medical needs.

Discussion
A. Defective Service Dismissal of a complaint for failure to effect time ly service will be set aside only for an abuse of discretion. See Espinoza v. United States , 52 F.3d 838,1 In an affidavit attached to her special appearance and motion to dismiss,

Waken asserted that she had not been at BJCC for se veral months due to an injury, and therefore did not receive notice of May ’s lawsuit until January 1999. -5- 840 (10th Cir. 1995). Fed. R. Civ. P. 4(m) provide s for dismissal of an action as to a defendant who has not been served within 120 d ays after the filing of the complaint. Here, May filed his complaint on May 6, 1998. On September 9, 1998, the magistrate judge issued an order advising May that his 120-day time limit for effecting service had expired, but granti ng him a permissive extension until September 24, 1998, to effect service or show good cause as to why service had not been effected. The order informed May thatfailure to do either would subject his complaint to dismissal. May filed retu rns on defendants Montalvo, Rader, and Cotner, but did not accomplish service o n the other defendants. May offered the district court no explanation for his f ailure to serve Griffin Memorial Hospital and the John and Jane Does. Therefore the magistrate judge correctly recommended that all claims against these defendant s be dismissed. In his response to defendant Waken’s motion to dism iss for defective service, May asserted that, because the district co urt made him pay a full filing fee, he had no funds to pay a process server, and t herefore left Waken’s complaint with a mail room employee. 1 Pursuant to Rule 4(m), a district court should ta ke a two-step approach to extensions of time for servi ce. The court should first inquire whether the plaintiff has established good cause for failing to effect2 In December 1993, amendments to Rule 4 went into ef fect that “substantially changed the scope of discretion to b e exercised by the district courts under [Rule 4].” Espinoza , 52 F.3d at 840. Before the 1993 amendment, Rule 4(j) permitted the district court to extend th e time for service of the summons and complaint only upon a showing of good c ause. In the absence of such a showing, the district court had to dismiss the case. The 1993 amendments broadened the district court’s discretion. Rule 4( j) was recodified as Rule 4(m), and amended to permit the district court to extend the time for service even if the plaintiff cannot establish good cause for the failu re to effect timely service. See Espinoza , 52 F.3d at 840-41. -6- timely service. If the plaintiff has established g ood cause, the court must extend the time for service. See Espinoza , 52 F.3d at 841. “If the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted.” 2 Id

. In considering whether May had shown good cause forhis failure to serve Waken, the magistrate judge considered whether, if the court granted May an extension of time to effect service, the statute of limitations would bar refiled claims against Waken. The magistrate judge found t hat, even though it appeared that some of the claims against Waken would be barr ed if the complaint were refiled, that alone did not constitute good cause. Although a statute of limitations problem counsels against dismissal, see Fed. R. Civ. P. 4(m) advisory committee’s note (“Relief may be justified . . . if the applicable statute of limitations would bar the refiled action.”), this f actor alone is not determinative of a finding of good cause, see, e.g., Despain v. Salt Lake Area Metro Gang Unit , 13 F.3d 1436, 1439 (10th Cir. 1994). Here, Waken d id not retrieve the complaint-7-

from her BJCC mailbox until 213 days after May file d his amended complaint. Even if placing the complaint in Waken’s mailbox co nstituted good service, it was too late. See id. (holding that “where service was never accomplishe d, in contrast to having been merely defective in form, t he court did not abuse its discretion in refusing to allow plaintiffs a second chance to effect service”). We note that it was May’s responsibility to monitorthe progress of service and to take reasonable steps to assure that Waken was timely served. See Cox v. Sandia Corp. , 941 F.2d 1124, 1125 (10th Cir. 1991). The magistrate judge concluded that May failed to s how good cause sufficient to warrant another extension of time und er Rule 4(m). We agree. “‘[G]ood cause’ determinations entail discretionaryconclusions by the district court and will not be disturbed absent an abuse of discretion.” Hendry v. Schneider , 116 F.3d 446, 449 (10th Cir. 1997) (quotation omi tted). “The trial court abuses its discretion in determining whether there is ‘good cause’ if its decision is arbitrary, capricious, or whimsical.” Id. Here, we conclude that the magistrate judge’s decision to recommend dismissal on May’s claims against Waken for failure to effect timely service was neit her arbitrary, capricious, or whimsical. While we must construe May’s pro se pleadings liberally, see Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996), his pro se s tatus does not-8-

excuse him from the obligation “to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994); Nielsen v. Price , 17 F.3d 1276, 1277 (10th Cir. 1994) (citing several cases for principle that pro se parties must comply with same procedural rules that govern all other litigan ts). Therefore, the district court’s dismissal of the action against Waken for u ntimely service of process was not an abuse of discretion. B. Summary Judgment Next, May asserts that the district court erred in granting the motion of Cotner, Rader, and Montalvo for summary judgment onMay’s Eighth Amendment claims. We review the grant of summary judgment de novo, applying the same legal standard as the district court under Fed. R. Civ. P. 56(c). See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs ., 165 F.3d 1321, 1326 (10th Cir.), cert. denied 120 S. Ct. 53 (1999). Summary judgment is appropriate only when “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matte r of law.” Fed. R. Civ. P. 56(c). In applying this standard, “we view the evi dence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms , 165 F.3d at 1326. Because “[a] verified pleading may itself be treate d as an affidavit if the facts asserted are within the pleader’s personal knowledge,” Jaxon v. Circle K-9-

Corp ., 773 F.2d 1138, 1139 n. 1 (10th Cir. 1985), we tr eat the factual allegations in May’s amended complaint as true and construe the m in the light most favorable to him. Nonetheless, if May failed to establish th e existence of an element essential to his case on which he bore the burden o f proof at trial, we will determine that there was no genuine dispute over material facts. See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). “[D]eliberate indifference to serious medical needs of prisoners” constitutes a violation of the Eighth Amendment. Estelle v. Gamble , 429 U.S. 97, 104 (1976). “However, ‘a complaint that a physicia n has been negligent in diagnosing or treating a medical condition does notstate a valid claim of medical mistreatment under the Eighth Amendment.’” Green v. Branson , 108 F.3d 1296, 1303 (10th Cir. 1997) (quoting Estelle , 429 U.S. at 106). In addition, neither medical malpractice nor disagreement with medical j udgment constitutes an Eighth Amendment violation. See id. The standard for determining whether the government has shown deliberate indifference to the medical needs of a prisoner has two components: “‘an objective component requi ring that the pain or deprivation be sufficiently serious; and a subjecti ve component requiring that the offending officials act with a sufficiently culpable state of mind.’” Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996) (quoting Miller v. Glanz , 948 F.2d 1562, 1569 (10th Cir. 1991)).-10-

May alleges that he was not adequately treated for his knee injury, that he was not adequately supervised during physical therapy, that he had to request a recheck, and that he was not issued the hinged br ace recommended by the physician at Griffin Memorial Hospital. He contend s that when he attended his physical therapy sessions, the staff “just gave [hi m] some photocopies and a rubber strap” and “[t]old [him] to read it and do t he exercises.” Appellant’s Br.
at 17. Even assuming that all of May’s contentions are tru e, his allegations reflect nothing more than his general disagreement with the course of his medical treatment. This, at most, involves a claim of medi cal malpractice or negligence that is not actionable under the Eighth Amendment. See Estelle , 429 U.S. at 106; see, e.g., Tyler v. Sullivan , No. 95-1232, 1996 WL 195295, **2 (10th Cir. April 22, 1996) (following Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) to hold “[a] difference of opinion as to the kind and timing of medical treatment does not rise to the level of an Eighth Amendment violation” ) (emphasis added) (unpublished); cf. White v. Colorado , 82 F.3d 364, 367 (10th Cir. 1996) (affirming summary judgment because “plaintiff’s al legations of denial of, or delay in providing, diagnostic evaluation and othermeans of treatment . . . implicate only defendants’ negligence and do not es tablish the more culpable state of mind necessary to support claims of the denial o f a constitutional right”).-11-

Further, plaintiff’s vague and conclusory allegatio ns do not indicate how the alleged deprivation or delay “exacerbate[d] [his] m edical problems” or “result[ed] in a lifelong handicap or a permanent loss.” Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999). Finally, we agree with the magistrate judge that May failed to assert a redressable equal protection claim in alleging thatanother inmate was allowed to have a hinged brace. May is not a member of a susp ect class nor did he assert the deprivation of a fundamental right. See Vacco v. Quill , 521 U.S. 793, 799 (1997) (holding that unless a distinction burdens a fundam ental right or targets a suspect class, courts will uphold it if it is rationally related to a legitimate end); accord Tonkovich v. Kansas Bd. of Regents , 159 F.3d 504, 532 (10th Cir. 1998). It is clear that the BJCC’s denial of May’s requestfor a hinged brace served a legitimate governmental purpose, that of p reventing the kind of security problems created by having metal objects available to inmates. The BJCC asserted that the other inmate arrived at the facil ity with the hinged brace. Be that as it may, the BJCC has the right to make adiscretionary decision to issue a hinged brace to one inmate while denying the same to another. See White v. Colorado , 157 F.3d 1226, 1234 (10th Cir. 1998) (upholding aclassification if it is rationally related to a legitimate government interest), cert. denied , 526 U.S. 10083 We note that the magistrate judge alternatively rec ommended dismissal of

the claims against defendant Cotner for lack of personal participation. See Report & Recommendation at 14 n.6 ( citing Olson, 9 F.3d at 1477) (holding that a claim of personal participation of a defendant is essenti al in a § 1983 civil rights action)). May does not challenge this finding on appeal. -12- (1999). Consequently, the BJCC’s refusal to issue a hinged brace to May did not violate his right to equal protection of the law.

Conclusion We have carefully reviewed the parties’ briefs and the record on appeal. We are unpersuaded by May’s assertions of error. H is claims against unserved defendants were properly dismissed and his disagree ment with the timing and manner of his treatment was insufficient to supporta constitutional claim. Therefore, the district court properly granted defe ndants’ motions to dismiss and for summary judgment. 3 The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. Plaintif f is reminded that he is-13-

obligated to continue making partial payments of th e filing fee until the entire fee has been paid.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge