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)
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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, 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. This order and judgment is

not binding precedent, except under the doctrines of 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 complaint. Thus, there are

(continued...)

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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 1998. On September 23,

2002, he filed a civil rights complaint under 42 U.S.C. § 19831 in the United

States District Court for the District of Kansas.2 He alleged violations of his
2

(...continued)

no responses to the complaint, nor do they appear in this court on appeal.

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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 suffers from a “‘cavernous’

hemangioma of the left lower extremity, present since birth, which results in left

ankle swelling, recurrent ulcerations, and infections, and is attributed to a very

large arterial venous malformation involving the left 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 defendant Prison Health

Services, a KDOC contractor, during his incarceration at three different KDOC

facilities, and insufficient attention by KDOC and prison officials to restrictions

on housing and work necessitated by his physical limitations. 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 claims on a variety of substantive

and procedural grounds. We have jurisdiction under 28 U.S.C. § 1291 and, for

substantially the same reasons stated in the district court’s orders, we affirm.
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Recognizing the statutory duty to exhaust administrative 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 a precondition to bringing

litigation, and requires dismissal where a litigant has failed to complete such

exhaustion.”), Mr. Hood’s complaints cited and attached 15 administrative

grievances that he filed with KDOC between December 1999 and April 2003,

while he was incarcerated at the Hutchinson Correctional Facility, the Lansing

Correctional Facility, and the El Dorado Correctional Facility. (Although the

district court acknowledged that after the filing of 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 process.) 

The district court concluded that a two-year statute of limitations applied to

Mr. Hood’s claims under § 1983, so all the claims regarding 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 for inmates “imprisoned for a
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term less than [their] natural life” if they do not have “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 remained in KDOC custody) nor

argues on appeal that the statute of limitations was incorrectly applied by the

district court or should have been tolled. Therefore, we agree with the district

court that all claims arising before September 23, 2000 are barred.

As to the allegations in the eight administrative grievances relating to his

treatment at Lansing Correctional Facility and El Dorado Correctional Facility,

we find no error in the district court’s determination 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 concluded, however, his factual

allegations, which include failure to diagnose blood 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 complaint clearly

establish that plaintiff has repeatedly sought and obtained extensive

medical attention, and that an appropriate non-narcotic medication

has been offered as an alternative to the narcotic medication

prescribed prior to plaintiff’s incarceration. Although plaintiff may

not care for the treatment decisions made by prison staff, his
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disagreement with the medical care provided is insufficient 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 in 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 indifference 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 because the victim is a

prisoner.” (internal quotation marks omitted)).

Another grievance, in addition to making similar claims 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 Mr. 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 in a prison setting to be a

constitutional violation, however, it must involve the “unnecessary and wanton
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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 punishments 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 district court that the alleged minor

physical encounter with a PHS doctor is not sufficiently serious to constitute a

constitutional violation.

Mr. Hood’s final two claims relate to housing and work assignments that

were inconsistent with his documented medical restrictions. Both incidents

appear to have resulted from careless, even negligent, 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 Fourteenth 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 consequence 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
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deprivation occurs as a result of the negligent acts of prison officials . . . .”). We

affirm the district court’s dismissal of these claims.

Mr. Hood also alleges falsification of his records in a conspiracy to

obfuscate the errors in his housing and work-assignment 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 magnitude, from the alleged coverup, which appears to fall somewhere between a confusion over his medical status

and affirmative misstatements about the reasons for overlooking that status in his

housing and work assignments. The same can be said for his assertion of a

violation of due process from the prison’s consolidation of two of his grievances

for purposes of an administrative response. We fail 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 action was taken. Furthermore,

both we and the district court have addressed the allegations in both grievances,

so Mr. Hood has suffered no prejudice from consolidation.

As for Mr. Hood’s allegations of violations under the Kansas constitution,

the district court correctly noted that they are not 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.
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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