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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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BRORBY, Circuit Judge.

Plaintiff, Joe Martinez, an inmate at the Utah State 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 testicle. He claims that these

conditions were diagnosed by a physician in June 2002, 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 improved 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 they can do for [his] condition

because he has missed medical appointments.” R. I., doc. 7 at 3-4. He alleges
1

 None of the defendants were served in the district court. Thus, there are no

responses to the complaint, nor do they appear in this court on appeal. 

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that he has “not been informed of the medical appointments,” 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 exhaustion of his

administrative remedies, seeks redress for violation of his Eighth Amendment

right against cruel and unusual punishment, including compensatory and punitive

damages and an order directing defendants to provide the prescribed medical care.

THE STANDARD OF REVIEW 

This court reviews a decision to dismiss for failure to state a claim de novo,

and “[d]ismissal of a pro se complaint . . . is proper only where it is obvious that

the plaintiff cannot prevail on the facts he has alleged 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 inferences that might be drawn

from them, in the light most favorable to the plaintiff.” Id. (citation omitted). 1

THE EIGHTH AMENDMENT
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A “deliberate indifference to serious medical needs of prisoners constitutes

the unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment.” Estelle v. Gamble , 429 U.S. 97, 104 (1976) (citation omitted). 

“This is true whether the indifference is manifested by prison doctors in their

response to the prisoner’s needs or by prison guards in intentionally denying or

delaying access to medical care or intentionally interfering with the treatment

once prescribed. Regardless of how evidenced, deliberate 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 objective and a subjective

component.” Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). 

The objective component is met if the deprivation is “sufficiently serious.” 

Farmer v. Brennan , 511 U.S. 825, 834 (1994) (quotation omitted). “A medical

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 official knows of and

disregards an excessive risk to inmate health or safety.” Id. (quotation omitted). 

In measuring a prison official’s state of mind, “the official must both be aware of
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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 in Mr. Martinez’s

complaint were sufficient to establish an objectively serious deprivation. 

However, the court found that the allegations failed 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 the 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 failure 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 reasonable inferences

therefrom in the light most favorable to Mr. Martinez, the complaint can be read

to allege that defendants knew of his serious medical condition, and despite this
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knowledge, failed to ensure that he received treatment. Knowledge of his medical

condition, coupled with the alleged failure to inform him of medical appointments

or to arrange transportation, may give rise to an inference that defendants acted

with deliberate indifference. Alternatively, because Mr. Martinez also alleges

that he was never informed of the medical appointments, one could infer that

defendants did not make the appointments, thus also potentially establishing

deliberate indifference. 

The district court’s summary conclusion that “[d]efendants have attempted

to provide [Mr. Martinez] treatment by arranging medical appointments for him,”

R. I., doc. 22 at 5, is not supported by any evidence, disregards the allegations

that he has never been informed of the medical appointments, and improperly

construes the allegations in the complaint and the reasonable inferences drawn

from them against Mr. Martinez, instead of in his favor. In reaching this

conclusion, we do not express any opinion regarding the merits of the case. 

The district court’s order dismissing the complaint is 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 partial payments until he has paid

the filing fee in its entirety.
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