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

### May 9, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLIFFORD HOOD,

Plaintiff - Appellant, No. 05-3198

v. D. Kansas PRISONER HEALTH SERVICES, INC.; MARVIN L. METTSCHER, R.N., Health Services Administrator, Hutchinson Correctional Facility; JIM BAKER, M.D., State Medical Director, Hutchinson Correctional Facility, official and individual capacity; DENNIS GOFF, Advanced Registered Nurse Practitioner, Hutchinson Correctional Facility, official and individual capacity; LOUISIA OSBORNE, Director of Nursing, Hutchinson Correctional Facility, official and individual capacity official and individual capacity; BOB ATKINSON, Clinical Director, Hutchinson Correctional Facility, official and individual capacity; LOUIS E. BRUCE, Warden, Hutchinson Correctional Facility, official and individual capacity; NADINE K. BELK, Employee of Prison Health Services, Hutchison Correctional Facility, official and individual capacity; (FNU) SANDERSON, Ms., Prison Health Services, Lansing Correctional Facility, official and individual capacity; (FNU) CHMUDLING, Ms., Prison Health Services, Lansing Correctional Facility, LPN acting in (D.C. No. 02-3305-GTV)-2-

official and individual capacity; (FNU) MUDLINGS, Ms., Prison Health Services, Lansing Correctional Facility, LPN acting in official and individual capacity; (FNU) NAIK, Dr., Prison Health Services works at Lansing Correctional Facility, official and individual capacity; DAVID R. MCKUNE, Warden, Lansing Correctional Facility, official and individual capacity; DEBRA WHEAT, Employee of Prison Health Services and works at El Dorado Correctional Facility, Health Services Administrator, official and individual capacity; (FNU) PHAM, Dr., Prison Health Services works at El Dorado Correctional Facility, official and individual capacity; MICHAEL A. NELSON, Warden, El Dorado Correctional Facility, official and individual capacity; WILLIAM L. CUMMINGS, Secretary Designee, KS Department of Corrections; J. HICKS, Deputy; (FNU) OGLETREE, Unit Team Manager, KDOC, in his official and individual capacity; (FNU) GIBBONS, Unit Team Manager, KDOC, Lansing Correctional Facility, in his official and individual capaicty; RON ROGERS, KDOC, Unit Team Member, in his official and individual capacity; (FNU) HOUNG, Doctor, Prison Health Services, Lansing Correctional Facility, in his official and individual capacity; PATRICK MCKEE, in his official and individual capacity; ARAMARK CORRECTIONAL SERVICES, INC.;* 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. This order and judgment is not binding precedent, except under the doctrines o f 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.

1 In his amended complaint, Mr. Hood cites 28 U.S.C . § 1983, but he clearly intends to invoke 42 U.S.C. § 1983. Given our liberal construction of pro se filings, see Haines v. Kerner , 404 U.S. 519, 520–21 (1972) , we will correct the error, as did the district court.

2 None of the defendants was served with the compla int. Thus, there are (continued...) -3- LANSING CORRECTIONAL

FACILITY; KANSAS DEPARTMENT OF CORRECTIONS,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before TACHA , HARTZ , and TYMKOVICH , Circuit Judges.

Appellant Clifford Hood has been a prisoner in the custody of the Kansas Department of Corrections (KDOC) since February 199 8. On September 23, 2002, he filed a civil rights complaint under 42 U. S.C. § 1983 1 in the United States District Court for the District of Kansas. 2 He alleged violations of his2 (...continued)

no responses to the complaint, nor do they appear i n this court on appeal. -4- rights to be free of cruel and unusual punishment, to due process, and to equal protection under both the Kansas and United States Constitutions. The district court summarily dismissed all his claims under 28 U .S.C. § 1915(e)(2)(B), and Mr. Hood appeals that decision. Mr. Hood’s amended complaint alleges that he suffer s from a “‘cavernous’ hemangioma of the left lower extremity, present sin ce birth, which results in left ankle swelling, recurrent ulcerations, and infectio ns, and is attributed to a very large arterial venous malformation involving the le ft leg and left lower quadrant of the abdomen.” R. Doc 17 at 13. All his claims in this suit stem from alleged inadequacies in the treatment of his condition by d efendant Prison Health Services, a KDOC contractor, during his incarcerati on at three different KDOC facilities, and insufficient attention by KDOC and prison officials to restrictions on housing and work necessitated by his physical li mitations. In two orders dated January 28, 2003, and (after Mr. Hood’s filing of an amended complaint) March 28, 2005, the district court dismissed all cl aims on a variety of substantive and procedural grounds. We have jurisdiction under28 U.S.C. § 1291 and, for substantially the same reasons stated in the distri ct court’s orders, we affirm.-5-

Recognizing the statutory duty to exhaust administr ative remedies before filing a federal complaint, see 42 U.S.C. § 1997e(a); Fitzgerald v. Corr. Corp. of
America , 403 F.3d 1134, 1140-41 (10th Cir. 2005) (“42 U.S. C. § 1997e(a) requires exhaustion of administrative remedies as aprecondition to bringing litigation, and requires dismissal where a litiganthas failed to complete such exhaustion.”), Mr. Hood’s complaints cited and atta ched 15 administrative grievances that he filed with KDOC between December1999 and April 2003, while he was incarcerated at the Hutchinson Correct ional Facility, the Lansing Correctional Facility, and the El Dorado Correction al Facility. (Although the district court acknowledged that after the filing o f Mr. Hood’s complaint he had sent the court some correspondence indicating that he continued to have issues with his treatment, the court correctly refused to address those claims because they had not been exhausted through the grievance p rocess.) The district court concluded that a two-year statut e of limitations applied to Mr. Hood’s claims under § 1983, so all the claims r egarding his treatment at Hutchinson Correctional Facility were time-barred. We review that determination de novo. See Plaza Speedway, Inc. v. United States , 311 F.3d 1262, 1266 (10th Cir. 2002). We have previously held that Kansas’s two-year statute of limitations applies to § 1983 claims. See Hamilton v. City of Overland Park, 730 F.2d 613, 614 (10th Cir. 1984). The statute can be tolled fo r inmates “imprisoned for a-6-

term less than [their] natural life” if they do nothave “access to the court for purposes of bringing an action,” Kan. Stat. Ann. § 60-515(a); but Mr. Hood neither presents any facts tending to show that he lacked access to the courts (in fact, when this suit was ultimately filed, he remai ned in KDOC custody) nor argues on appeal that the statute of limitations wa s incorrectly applied by the district court or should have been tolled. Therefo re, we agree with the district court that all claims arising before September 23, 2000 are barred. As to the allegations in the eight administrative g rievances relating to his treatment at Lansing Correctional Facility and El D orado Correctional Facility, we find no error in the district court’s determinat ion that these fail to state a claim for the deprivation of a right under federal law. Five of the eight grievances relate entirely to the quality of the medical care that Mr. Hood has received for his vascular condition. As the district court conc luded, however, his factual allegations, which include failure to diagnose bloo d clots resulting from his condition, denial of his preferred pain medication, delays in providing prescribed medications and treatments, and refusal to send him to an outside specialist, cannot establish a constitutional violation: The administrative responses provided with the comp laint clearly establish that plaintiff has repeatedly sought and obtained extensive medical attention, and that an appropriate non-narc otic medication has been offered as an alternative to the narcotic medication prescribed prior to plaintiff’s incarceration. Alt hough plaintiff may not care for the treatment decisions made by prison staff, his-7-

disagreement with the medical care provided is insu fficient to state a cognizable constitutional claim for seeking relief under § 1983. R. Doc. 4 at 2-3 (Dist. Ct. Order, Jan. 28, 2003). Such disagreements with the treatment provided by prison medical staff do not i n themselves rise to the level of deliberate indifference necessary to violate the Eighth Amendment. See Perkins v. Kan. Dept. of Corr. , 165 F.3d 803, 811 (10th Cir. 1999). Furthermore, inadvertent or negligent failure to provide medical care, however serious the consequences, does not rise to “deliberate indiffer ence to serious medical needs” and is not a constitutional violation. See Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980); see also Fitzgerald, 403 F.3d at 1143. (“Medical malpractice does not become a constitutional violation merely b ecause the victim is a prisoner.” (internal quotation marks omitted)). Another grievance, in addition to making similar cl aims related to his medical care, also alleges that he was assaulted by his treating physician at the PHS clinic. Accepting as true the allegations of M r. Hood, as we must when reviewing a dismissal for failure to state a claim, see Gaines v. Stenseng , 292 F.3d 1222, 1224 (10th Cir. 2002), a PHS physician, after telling Mr. Hood that there did not appear to be anything wrong with him, “grab[bed him] by [his] shirtfront yank[ed him] out of [his] chair and yank [ed him] into the hallway.” R. Doc. 1 Ex. J at 2. For the use of physical force i n a prison setting to be a constitutional violation, however, it must involve the “unnecessary and wanton-8-

infliction of pain.” See Sampley v. Ruettgers , 704 F.2d 491, 495 (10th Cir. 1983); see also Hudson v. McMillian , 503 U.S. 1, 9-10 (1992) (“The Eighth Amendment’s prohibition of cruel and unusual punish ments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” (internal quotation marks omitted)). We agree with the distr ict court that the alleged minor physical encounter with a PHS doctor is not suffici ently serious to constitute a constitutional violation. Mr. Hood’s final two claims relate to housing and w ork assignments that were inconsistent with his documented medical restr ictions. Both incidents appear to have resulted from careless, even neglige nt, recordkeeping, but each was corrected upon Mr. Hood’s filing of a grievance . Such incidents of negligence, while unfortunate, cannot be the basis of a constitutional claim of either deliberate indifference to his medical needs under the Eighth Amendment or of a deprivation of due process under the Fourte enth Amendment. See Board of County Comm’rs of Bryan County v. Brown , 520 U.S. 397, 410 (1997) (“[D]eliberate indifference is a stringent standard of fault, requiring proof that [an] actor disregarded a known or obvious consequen ce of his action.” (internal quotation marks omitted)); Harris v. Maynard, 843 F.2d 414, 415 (10th Cir. 1988) (“[U]nder the due process clause of the Fourteenth Amendment no constitutional-9-

deprivation occurs as a result of the negligent act s of prison officials . . . .”). We affirm the district court’s dismissal of these clai ms. Mr. Hood also alleges falsification of his records in a conspiracy to obfuscate the errors in his housing and work-assign ment records. Because these errors were soon corrected, as mentioned above, we fail to see how he sustained any injury, let alone an injury of constitutional m agnitude, from the alleged coverup, which appears to fall somewhere between a confu sion over his medical status and affirmative misstatements about the reasons foroverlooking that status in his housing and work assignments. The same can be saidfor his assertion of a violation of due process from the prison’s consolid ation of two of his grievances for purposes of an administrative response. We fai l to understand how there was any denial of due process by combining the two separately filed grievances, although it is unclear from the record why this act ion was taken. Furthermore, both we and the district court have addressed the a llegations in both grievances, so Mr. Hood has suffered no prejudice from consolid ation. As for Mr. Hood’s allegations of violations under the Kansas constitution, the district court correctly noted that they are no t cognizable under § 1983. See Jones v. City and County of Denver , 854 F.2d 1206, 1209 (10th Cir. 1988). The court thus lawfully exercised its discretion not to assert supplemental jurisdiction under 28 U.S.C. § 1367.-10-

We further affirm the district court’s judgment as to all other claims and defendants for the reasons stated by that court. We AFFIRM the judgment of the district court. Mr. Hood’s motion for appointment of counsel for this appeal is DENIED.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge