* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### JUL 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEONARD J. PELTIER, Plaintiff - Appellant, vs. FEDERAL BUREAU OF PRISONS, agents, employees, servants and physician contractors of the Bureau; J.W. BOOKER, JR., USP - Leavenworth, Defendants - Appellees. No. 98-3319 (D.C. No. 98-CV-3272) (D.Kan.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Mr. Peltier, a federal prisoner who appeared pro se in the district court but is now represented by counsel, brought this action under 42 U.S.C. § 1983 alleging that Defendants Federal Bureau of Prisons, Warden J.W. Booker, Jr., and- 2 -

other prison officials denied him adequate medical care and subjected him to cruel and unusual punishment in violation of the Ei ghth Amendment. After Mr. Peltier had paid the filing fee, but before service of summons on Defendants, the district court dismissed the matter sua sponte, hol ding that Mr. Peltier’s complaint failed to state a claim for relief. Mr. Peltier argues on appeal that the district court erred in dismissing his complaint before service of process could be made a nd without affording him an opportunity to amend his complaint and/or present e vidence on his claims. We review de novo a district court's order dismissing a prisoner's case for failure to state a claim pursuant to 28 U.S.C. § 1915A. See McGore v. Wrigglesworth , 114 F.3d 601, 604 (6th Cir. 1997); see also Perkins v. Kansas Dep't of Corrections , 165 F.3d 803, 806 (10th Cir. 1999) (establishing th e de novo standard of review for a dismissal under 28 U.S.C. S 1915(e)(2)(B)(ii) for failure to state a claim). Although it is unclear whether the district court b ased its dismissal of Mr. Peltier’s complaint on Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B)(ii), or 28 U.S.C. § 1915A(b)(1), the district court properl y dismissed the complaint sua sponte regardless of the basis invoked. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (appellate court is f ree to affirm a district court decision on any grounds supported by the record). Section 1915A(a) requires the court to “review, bef ore docketing . . . or . . .- 3 -

as soon as practicable after docketing” all civil c omplaints “in which a prisoner seeks redress from a governmental entity of officeror employee of a governmental entity.” The court then must dismiss the complaint if it “fails to state a claim upon which relief may be granted.” § 1915A(b)(1); see also Wrigglesworth , 114 F.3d at 612 (stating that, under § 1915A, “co urts have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal”). Further, a district court may always dismiss a claim sua sponte under Rule 12(b)(6) “when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” McKinney v. Oklahoma Dep’t of Human Se rvs. , 925 F.2d 363, 365 (10th Cir. 1991) (internal quotation marks and citations omitted). Thus, if Mr. Peltier’s complaint failed to state a claim, the di strict court did not err in dismissing it sua sponte. Prison officials violate the Eighth Amendment when they are deliberately indifferent to the serious medical needs of prisone rs in their custody. See Estelle v. Gamble , 429 U.S. 97, 104-106 (1976). In his complaint, M r. Peltier alleged that as a result of a negligently performed surgeryat the Medical Center for Federal Prisoners in Springfield, Missouri, he “has suffered great physical pain and anguish from constant jaw pain, headaches, faci al pain, difficulty chewing and swallowing food . . . and has had [a] disfiguri ng injury.” R. doc. 1 at 3.- 4 -

Further, although Defendants have offered additiona l surgery in Springfield, they have refused to permit treatment at the Mayo Clinic in Rochester, Minnesota, as requested by Mr. Peltier. See id. Accepting these allegations as true, see Gagan v. Norton , 35 F.3d 1473, 1474 n.1 (10th Cir. 1994), and construing Mr. Pelti er’s pro se pleadings liberally,

see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), we are satisfied that Mr. Peltier could not possibly obtain relief under the facts alleged. At most, he states a claim for medical malpractice. “[A] complaint th at a physician has been negligent in . . . treating a medical condition doe s not state a valid claim of medical mistreatment under the Eighth Amendment. M edical malpractice does not become a constitutional violation merely becaus e the victim is a prisoner.” Estelle , 429 U.S. at 106. Further, the question of where Mr. Peltier’s follow-up surgery should take place is “a matter for medical judgment,” id. at 107, and a decision not to allow treatment at the Mayo Clinic does not represent cruel and unusual punishment. Mr. Peltier has failed to stat e a claim for relief under the Eighth Amendment.
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge