UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSEPH RASCÓN, Plaintiff - Appellant,

v. DONALD DOUGLA S; MAUREEN BIXENMAN; LISA STABER, CORIZON MEDICAL CORP.; Defendants - Appellees, and
LEA COUNTY CORRECTIONAL FACILITY; V. KEELING; G.E.O. GROUP INC.; FNU ELIZANDRO; FNU ALVARADO; FNU RESENDEZ; FNU HILL; FNU COOPER; FNU BALDANADO; VA LERIE NEAGLE; JERRY ROARK, Defendants. No. 16-2251 (D.C. No. 2:15-CV-00067-MV-GJF) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HOLMES and MATHESON , Circuit Judges.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 20, 2017
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Joseph Rascón, a New Mexico prisoner pr oceeding pro se, appeals the district court’s orders granting motions for dismissal and summary judgment on his claims of cruel and unusual punishment in violation of the Eighth Amendment. He requests leave to proceed on appeal in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the IFP motion and affirm.
I. BACKGROUND Mr. Rascón is incarcerated at the L ea County Correctional Facility (LCCF) in Hobbs, New Mexico. He suffers from painful arthritis and degenerative bone disease, for which he was gi ven morphine. He was schedul ed to have bilateral hipreplacement surgery in February 2014, but he refused. Cons equently, his pain medication was changed from morphine to ot her drugs. He was placed in a medicalobservation cell to monitor his withdrawal from morphine and receive drugs for morphine withdrawal and pain . Mr. Rascón alleged that th e substitute drugs did not alleviate his pain and he was forced to sleep on the cell’s stee l-slab bed without a mattress for four nights. After exhausting the pris on grievance procedures, see 42 U.S.C. § 1997e(a), Mr. Rascón filed suit under 42 U.S.C. § 1983 claiming th e four-night lack of a mattress and the change in his medicati on constituted cruel and unusual punishment. He further alleged that he was denied morphine and placed in the medicalobservation cell in retaliation for refusing the surgery.3 The district court examined the comp laint under 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6). It ruled the complaint failed to state a claim against defendants Corizon Medical Corp., G.E.O. Gr oup Inc., Keeling, Elizandro, Alvarado, Resendez, Hill, Cooper, Baldanado, Neag le, and Roark. The court said the supervisory defendants could not be held vicariously liable under the doctrine of respondeat superior, and the complaint did not allege the requisite personal involvement by the individual defendants. It ordered the remaining three defendants, Dr. Staber, the Regional Medical Director for Corizon; Ms. Bixenman, a physician’s assistant; and Mr. Douglas, the H ealth Services Administrator, 1 to file a Martinez report, see Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978) , to “identify and clarify the issues plaintiff rais e[d] in his complaint,” Hall v. Bellmon , 935 F.2d 1106, 1112 (10th Cir. 1991). After filing the Martinez report, the remaining th ree defendants moved for summary judgment. The district court granted the summary judgment motion and denied Mr. Rascón’s motion to alter or am end the judgment. Mr. Rascón appeals the order dismissing Corizon for failure to state a claim and th e summary judgment granted to Dr. Staber, Ms. Bi xenman, and Mr. Douglas.

1 Corizon, a private health-care provider, contracted to provide services to LCCF prisoners. During the relevant time period, Dr. Staber , Ms. Bixenman, and Mr. Douglas were employed by Corizon. The defendants do not contest that they acted under color of state law for § 1983 purposes.4 II. DISCUSSION
A. Standard of Review We review de novo the district cour t’s dismissal under Rule 12(b)(6) for failure to state a claim. Safe Streets All. v. Hickenlooper , 859 F.3d 865, 878 (10th Cir. 2017). We will affirm the dismissal if th e complaint does not “contain sufficient factual matter, accepte d as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks omitted). We also review de novo the district court’s grant of summary judgment, viewing the evidence and drawin g all reasonable inferences in favor of Mr. Rascón as the nonmoving party. Foster v. Moun tain Coal Co., 830 F.3d 1178, 1186 (10th Cir. 2016). “The court shall grant summary j udgment if the movant shows there is no genuine dispute as to any material fact a nd the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is materi al only if it might affect the outcome of the suit under the governing law. And a dispute over a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Foster, 830 F.3d at 1186 (internal quotation marks omitted). We liberally view Mr. Ra scón’s pro se filings. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, “take on the responsibility of servi ng as the litigant’s attorney in constructing arguments and searching the record.” Id. Moreover, “pro se parties [m ust] follow the same rules of procedure that govern other litigants.” Id. (internal quotation marks omitted).5 B. Dismissal of Corizon Mr. Rascón challenges the orde r dismissing Corizon. He contends Corizon is vicariously liable for injuries inflicted by its employees. But “vicarious liability is inapplicable to . . . § 1983 suits.” Iqbal , 556 U.S. at 676. The district court properly dismissed this claim. 2
C. Tort Theories Not Applicable In asserting the defendants are liable for his suffering, Mr. Rascón invokes several tort theories, such as res ipsa loqu itur, the borrowed-servant doctrine, medical negligence, a duty of ordinary care, a hos pital’s negligent credentialing of staff physicians, a physician’s abandonment of he r patient, medical malpractice, and the “dual capacity doctrine” of medical malpractic e. But the standard of care in Eighth Amendment prisoner conditions-of-confinem ent cases brought under § 1983 is deliberate indifference, not negligence. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding an Eighth Amendment conditi ons-of-confinement claim requires an inmate to show that there has been deliberate i ndifference to his serious medical needs). This is “why res ipsa loquitur [and other tort theories] do[] not apply.” Clark-Murphy v. Foreback , 439 F.3d 280, 286 (6th Cir. 2006) (citing Sweeney v.

2 In his reply brief, Mr. Rascón argue s that other defendants are also vicariously liable. Although we generally do not address arguments presented for the first time in a reply brief, see Toevs v. Reid , 685 F.3d 903, 911 (10th Cir. 2012) (“Arguments not clearly made in a party’s opening brief ar e deemed waived.”), these other defendants also cannot be held vicariously liable under § 1983. See Iqbal , 556 U.S. at 676. We do not addr ess Mr. Rascón’s claims raised for the first time in his reply brief concerning the de nial of a temporary restrain ing order, his need for a wheelchair, or his attempt to invoke th e Americans with Di sabilities Act.6 Erving, 228 U.S. 233 (1913)). Legal theories a pplicable to criminal law are also not applicable, such as Mr. Rascón’s arguments for applying ignorance or mistake of law and refusal of a mistake-of-fact jury instruction in a child-abuse case.
D. Deliberate Indifference – Di scontinuation of Morphine We turn to Mr. Rascón’s argument th at the discontinuation of morphine violated the Eighth Amendment.
1. Legal background “A prison official’s deliberate indifference to an inmate’s serious medical needs is a violation of the Eighth Amendm ent’s prohibition against cruel and unusual punishment.” Mata v. Saiz , 427 F.3d 745, 751 (10th Cir. 2005). Deliberate indifference involves both an objective and a subjective component. Id. The objective component is met if the depr ivation is sufficiently serious. Id. The parties do not dispute that Mr. Rascón’s arthri tis and degenerative bone disease were sufficiently serious to satisfy the objectiv e component. Consequently, we evaluate only the subjective component. See Self v. Crum , 439 F.3d 1227, 1233 (10th Cir. 2006) (analyzing only the subjective com ponent where the pa rties agreed the objective component was met). To satisfy the subjective component, the plaintiff must “pre sent evidence of the prison official’s culp able state of mind.” Mata , 427 F.3d at 751. An official will not be held responsible unles s he “knows of and disregar ds an excessive risk to inmate health or safety; th e official must both be awar e of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must7 also draw the inference.” Self, 439 F.3d at 1231 (internal quotation marks omitted). An official may be liable if he knew the prisoner “faced a substa ntial risk of harm and disregarded that risk by failing to ta ke reasonable measures to abate it.” Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999) (internal quotation marks omitted). Our cases recognize two ways to show the subjective component. “First, a medical professional may fail to treat a serious medical condition properly,” and second, a prison official ma y act as a gatekeeper and “prevent an inmate from receiving treatment or deny him access to medical personnel capable of evaluating the need for treatment.” Sealock v. Colorado , 218 F.3d 1205, 1211 (10th Cir. 2000). In either case, the “inadverten t failure to provide adequate medical care,” which is tantamount to negligence, does not satisfy the deliberate indifference standard. Estelle , 429 U.S. at 105-06.
2. Analysis In her affidavit, Dr. Staber explained that Mr. Rascón was prescribed morphine to provide short-term pain relief until undergoing his hip-replacement surgery. Morphine was not prescribed for long-term treatment. She stated that one of morphine’s common side effects is psychologi cal and physical addiction, and there is an increased risk of abuse, misuse, and diversion of such drugs in the prison setting. Mr. Rascón also received No rco for pain during a brief period before his scheduled
surgery. After Mr. Rascón refused the surgery, Dr. Staber determined as the proper medical course that his me dication should be changed from morphine and Norco to8 non-narcotic pain relievers. She direct ed Mr. Rascón to be placed in a medicalobservation cell so his condition could be m onitored. While there, Mr. Rascón was administered medications to al leviate the side effe cts of morphine withdrawal as well as pain. Dr. Staber stated that during this time she was not at the prison. After she directed Mr. Rascón’s placement in a me dical-observation cell with appropriate medications and monitoring, she had no fu rther involvement, though she remained available to address any emergency situation. Physician’s Assistant Bixenman also filed an affidavit. She described Mr. Rascón’s medication and treatment, which was similar to Dr. Staber’s description. She implemented the Coriz on medication protocol for withdrawal from morphine and administered various drugs for withdrawal , pain, and nausea. She monitored Mr. Rascón’s vital signs daily, except for his second day in the medicalobservation cell when the corrections officer on duty could not find the keys to his cell. In his affidavit, Mr. Douglas expl ained that as the Health Services Administrator at LCCF, his du ties were administrative and organizational rather than providing medical treatment. He was th erefore not involved in the decisions to withdraw Mr. Rascón’s morphine or to pl ace him in a medical-observation cell. Mr. Rascón’s responses to thes e affidavits lack merit. First, he says a different prison docto r, Dr. Birnbaum, later reinstated his treatment with morphine on July 18, 2016, twenty-nine months after Dr. Staber decided to withdraw the morphine, thus proving that Dr. Staber’s decision to withdraw9 morphine was wrong. Even if a different medical decision made almost two and one-half years after the original decision show ed a disagreement about treatment, “[i]t is well established that a differe nce of opinion between two doc tors is insufficient to survive summary judgment on a deliberate-indifference claim,” Zaya v. Sood , 836 F.3d 800, 803 (7th Cir. 2016). Moreove r, Mr. Rascón’s disagreement with Dr. Staber’s treatment decisions does not state an Eighth Amendment claim. “Disagreement with a doctor’s particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation.” Gee v. Pacheco , 627 F.3d 1178, 1192 (10th Cir. 2010) Second, Mr. Rascón asserts that Dr. Stab er’s decision to prescribe Norco in place of morphine dem onstrated her intent to force hi m to have the surgery because morphine withdrawal would cause him duress. He claims Officer Resendez, a guard at LCCF, told him that this was the plan . But Officer Resende z’s statement does not support this argument. It said only that he saw Mr. Rascón with out a mattress in the medical-observation cell. Third, Mr. Rascón complains that Ms. Bi xenman originally signed his refusalof-surgery form as a witne ss and that her signature was subsequently crossed out as

an error. See R. Doc. 12, at 6. He assert s this shows Ms. Bixenman committed perjury, but he does not explain how crossi ng off her name on the form is evidence of deliberate indifference. Mr. Rascón also relies on the surger y-refusal form to allege Mr. Douglas “attempted fraud to break (mor phene) acceptance for pain .” [sic] Aplt. Opening Br. at 21; see also Aplt. Reply Br. at 29 (“Mr. Douglas forged a pain-10 medication refusal form in order to minimi ze denial of mattre ss.”). Again, the surgery-refusal form does not permit the inference that Mr. Douglas was deliberately indifferent. Moreover, Mr. Dougl as did not sign the form. Based on the foregoing, we determine th at Mr. Rascón raised no genuine issue of material fact that Dr. Staber, Ms. Bi xenman, or Mr. Douglas were deliberately indifferent to his serious me dical needs. The district court properly granted summary judgment in their favor.
E. Condition of Confinement – Lack of Mattress Placement in the medical-observati on cell to discontinue Mr. Rascón’s morphine was based on Dr. Staber’s medical judgment and raises no Eighth Amendment concern. Mr. Rascón further a lleges that requiring him to spend four nights in the medical-observation cell w ithout a mattress violated the Eighth Amendment. Mr. Rascón has not cited, and we have not found, a case holding that absence of a mattre ss in the circumstan ces presented here rises to an Eighth Amendment violation. Even if Mr. Ra scón could make a colorable claim, the absence of clearly establis hed law and the doctrine of qualified immunity preclude liability.
1. Legal Background Prison officials are required to insure that inmates receive adequate food, clothing, shelter and medical care. An inmate making an Eighth Amendment claim for constituti onally inadequate conditions of confinement must allege and prove an objective component and subjective component associated w ith the deficiency. The objective component requires conditions suffici ently serious so as to deprive inmates of the minima l civilized measure of life’s necessities.11 Alternatively, a condition must be sufficiently serious so as [to] constitute a substantial ri sk of serious harm. The subjective component requires that a defendant prison offici al have a culpable state of mind, that he or she acts or fails to act with deliberate indifference to inmate health and safety. Shannon v. Graves , 257 F.3d 1164, 1168 (10th Cir. 2001) (citations and internal quotation marks omitted). Qualified immunity “shields public offi cials from damages actions unless their conduct was unreasonable in light of clearly established law.” Henderson v. Glanz , 813 F.3d 938, 95 1 (10th Cir. 2015) (ellipsis and internal quotation marks omitted). Generally, “in order for the law to be clea rly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly esta blished weight of authority from other courts must have found the law to be as the plaintiff maintains.” Id. (internal quotation marks omitted).
2. Analysis We have found no case, and Mr. Rasc ón has not provided one, holding that denying a prisoner a mattress under the ci rcumstances alleged here satisfies the objective component of an Eighth Amendmen t claim. Although lack of bedding in combination with other deprivations coul d state an Eighth Amendment violation, see Mitchell v. Maynard , 80 F.3d 1433, 1443 (10th Ci r. 1996) (holding an Eighth Amendment violation could be established by “lack of heat combined w ith the lack of clothing and bedding, the de privation of exercise for an extensive period of time, the lack of hot water, the denial of toilet paper, the removal of his prescription12 eyeglasses, the lack of ad equate ventilation and the de nial of writing utensils”), 3 the conditions alleged in Gregory v. Wyse, 512 F.2d 378, 380, 382 (10th Cir. 1975), did not amount to cruel and unusual punishment —confinement for at least ten days in a small cell with only a cement slab for a bed, no bedding, a light in the cell on at all times, two meals per day, and one shower per week. Similarly, in an unpublished opinion this court held that allegations th at a prisoner was held for four nights and five days in a stripped basement intake cell with minimal cl othing and bedding, no personal hygiene items, and no cleaning supp lies for the cell wa s not a constitutional violation. Estrada v. Kruse , 38 F. App’x 498, 498- 99 (10th Cir. 2002). We also have found no Supreme Cour t authority on point. Nor can we conclude that the weight of authority from other circuit courts supports Mr. Rascón’s claim. 4 Other circuits have held that a lack of an adequate ma ttress in combination

3 S ee also Brewer v. Gilroy , 625 F. App’x 827, 834 (10th Cir. 2015) (stating the following conditions might support an Eighth Amendment claim: prison personnel “placed [the prisoner] in unlit cells that smelled of urine, feces, or sewage, and refused to give him a matt ress, bedroll, or adequate food and water; . . . he was denied food entirely for seve n days [and], at other ti mes, prison employees threw food into his cell so that he wo uld have to eat off the floor”); Allen v. Avance , 491 F. App’x 1, 4-5 (10t h Cir. 2012) (holding obj ective component was met by prisoner’s claims that he wa s locked in the county jail “drunk tank” for two periods— once for seven days and again for four days —in standing water for part of the time, without any bedding, mattress, or toiletries , and was denied his legal papers, personal property, access to the commissary, and vi sitation). Although not precedential, we find the reasoning of the unpublished cases ci ted in this order and judgment to be instructive. See 10th Cir. R. 32.1(A) (“Unpublishe d decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1(a).

4 See Chappell v. Mandeville , 706 F.3d 1052, 1057 (9th Cir. 2013) (holding that the law was not clearly established th at either of the conditions of which the (continued)13 with other deprivations may state an Eighth Amendment claim, but under worse conditions than those presented here. 5
In addition to lack of a ma ttress for four nights, Mr. Rascón experienced morphine withdrawal and arthritis pain. These additional conditions do not appear to

prisoner complained—24-hour lighting and mattress de privation for six nights— violated the Eighth Amendment); O’Leary v. Iowa Stat e Men’s Reformatory , 79 F.3d 82, 84 (8th Cir. 1996) (requiring a prisoner to sleep on a conc rete slab for four days did not violate the Eighth Amendment); Johnson v. Pelker , 891 F.2d 136, 138-39 (7th Cir. 1989) (holding prisoner’s wet clothing and mattress, which required him to sleep on a slab of metal for two and one-half days was disquieting, but a temporary inconvenience not compounded by other deprivations, so did not rise to the level of an Eighth Amendmen t violation).

5 See, e.g. , Walker v. Schult , 717 F.3d 119, 126 (2d Cir. 2013) (holding the following prison conditions plau sibly alleged an Eighth Amendment claim: “for approximately twenty-eight months, he was confined in a cell with five other men, with inadequate space and ventilation, stif ling heat in the summer and freezing cold in the winter, unsanitary conditions, includi ng urine and feces splattered on the floor, insufficient cleaning supplies, a mattress too narrow for him to lie on flat, and noisy, crowded conditions that made sleep diffic ult and placed him at constant risk of violence and serious ha rm from cellmates”); Budd v. Motley , 711 F.3d 840, 842 (7th Cir. 2013) (holding allegations of poor sanitati on and hygiene, a lack of heat and bedding, blocked ventilation, overcrowding, and inadequate recreation stated a valid conditions-of-confinement claim); Palmer v. Johnson , 193 F.3d 346, 353 (5th Cir. 1999) (holding the following conditions constitu ted a denial of hum ane conditions of confinement: “overnight outdoor confinemen t [for 17 hours] with no shelter, jacket, blanket, or source of heat as the temperature dropped a nd the wind blew[,] along with the total lack of bathroom facilities for forty-nine inmates sharing a small bounded area”); Williams v. Benjamin , 77 F.3d 756, 764, 768 (4th Cir. 1996) (reversing summary judgment in favor of prison pe rsonnel on prisoner’s claim that he was maced and confined in four-point restraints on a bare steel bed frame for more than eight hours, denied his request to wash hims elf, and not permitted to use a toilet or receive medical attention); Goodson v. City of Atlanta , 763 F.2d 1381, 1387 (11th Cir. 1985) (upholding prisoner’s claim of cruel and unusual punishment for “inedible food, no blanket or bedding, no sa nitation, inadequate medical care, [and] no shelter from the elements other than a concrete cell with broken windows permitting the passag e of cold air”).14 place this case under the precedents finding Eighth Amendment viol ations, but even if the combination of circumstances could ar guably make out a viol ation, it would not find support in clearly esta blished law to overcome qu alified immunity for the defendants . Consequently, we affirm the grant of summary judgment on the conditions-of-confinement claim.
F. Retaliation Mr. Rascón alleges that the defendants withdrew the morphine and placed him in the cell without a mattress in retaliation for refusing the hip-replacement surgery.
1. Governing law Prison officials may not retaliate ag ainst an inmate for exercising his constitutional rights. Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998). A plaintiff must establish that “but for” th e retaliatory motive, th e complained-of action would not have taken place. Id. “An inmate claiming retaliation must allege specific facts showing retaliation because of the exercise of th e prisoner’s constitutional rights.” Id. (internal quotation marks omitted).
2. Analysis Mr. Rascón did not specify the constitutio nal right at stake, but assuming his refusal of the surgery is protected activ ity, he has adduced no evidence that his refusal was the “but for” re ason the morphine was withdr awn and he was placed in a medical-observation cell without a mattress. As discussed above, Dr. Staber would have replaced the morphine with other drugs whether or not Mr. Rascón underwent the surgery because, in Dr. Staber’s me dical judgment, morphine was not an15 appropriate long-term treatment. And Mr . Rascón has not shown that any of the defendants were even capable of retaliati on because he has not shown they had the authority to withhold a mattress from the medical-observation cell. Thus, Mr. Rascón has not shown that the defendant s’ alleged retaliatory motives were the “but for” cause of their acti ons. Accordingly, we concl ude that the district court properly granted summary judg ment against Mr. Rascón on his retaliation claim.
III. CONCLUSION We affirm the district court’s judgment. We grant Mr. Rascón’s application to proceed IFP and remind him that he is oblig ated to continue ma king partial payments until the entire filing fee has been paid. Mr. Rascón’s opening and reply briefs contain several arguments styled as moti ons. We deny the motions but we have considered them as part of the opening brief.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge