* After examining the briefs 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

October 28, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LARRY LEROY JOHNSON, JR.,

Plaintiff-Appellant,

v.

JANE STANDIFIRD, Warden; DENNIS

COTNER, Medical Service

Administrator of DOC; BARBARA

CARSWELL, Medical Administrative at

JBCC; PHILLIP LANGSTON;

DR. NORMAN MCALESTER;

DR. STEWART; DR. PHILLIP

WASHBURN, JBCC Physician;

DR. WIT CHAINAKUL, JLCC

Physician; DR. JOHN HILDENBRAND,

Physician OU Medical Orthopedic

Clinic; ANITA THOMAS, Nurse, RN;

CAROLYN COOPER, Nurse, RN,

Defendants-Appellees.

No. 10-7025

(D.C. No. 6:08-CV-00372-FHS-SPS)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and

GORSUCH, Circuit Judge.
1 Mr. Johnson also alleged violations of his rights under the First, Fifth and

Fourteenth Amendments. These claims are subsumed in his broader claim under

the Eighth Amendment. 

2 Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (en banc) (per curiam)

(authorizing district courts to order prison officials to investigate civil-rights

complaints and prepare a report for submission to the court).

-2-

Larry Leroy Johnson, Jr., an Oklahoma prisoner appearing pro se, appeals

from an order of the district court dismissing his suit under 42 U.S.C. § 1983. 

Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss the appeal as

frivolous and assess one strike against Mr. Johnson.

The gravamen of Mr. Johnson’s complaint is an Eighth Amendment

violation arising from the defendants’ alleged deliberate indifference to his

serious medical needs.1

 Following its consideration of two Martinez reports,2 the

defendants’ motion to dismiss, and Mr. Johnson’s response, the district court

dismissed the case under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous. Despite its

conclusion that Mr. Johnson’s suit was frivolous, the district court granted his

motion to proceed in forma pauperis (IFP) on appeal.

Prior to his incarceration, Mr. Johnson was in an automobile accident that

required the surgical fusion of his spine. During his incarceration, he was

diagnosed in 2005 with osteoarthritis in his hip and knee. He was treated with

pain medications, injections, braces, and restrictive orders were issued that

limited his daily activities. When his condition deteriorated, prison medical
-3-

personnel requested an examination by an outside orthopedic specialist. In March

2006, while waiting for the orthopedic consultation, Mr. Johnson began

experiencing neurological problems. Between March and June 2006, a series of

tests were conducted to diagnose the problem. During this time, Mr. Johnson was

given pain medications, a cervical collar, provided with a walker, and placed on

bed rest. On June 26, he was seen by an outside physician, who recommended

spinal surgery. That surgery was performed on July 18.

In December 2006, following Mr. Johnson’s recovery from his spinal

surgery, prison doctors renewed their efforts for an outside orthopedic

examination. In May 2007, he was examined by an orthopedic specialist, who

diagnosed him with degenerative disease in his knee and hip. However, in light

of Mr. Johnson’s relatively young age, the physician recommended that surgery

be postponed until the condition severely affected the quality of his life. Thus, he

was placed on the waiting list as a low priority for surgery. In April 2008, and at

the request of a prison physician, Mr. Johnson’s surgical status was upgraded to

medium priority. This request was followed by additional requests from the

prison medical staff in July and November 2008, to schedule the surgery. At the

time the suit was filed, Mr. Johnson had not undergone surgery; instead, he was

being treated in accordance with the recommendations of the orthopedic

specialist.
3 Mr. Johnson argues in a conclusory fashion that the district court erred in

denying his motion to appoint counsel. But his failure to cite any legal authority

to support his argument means that we will not consider the issue on appeal. See

Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (holding that issues

not adequately addressed on appeal are deemed waived). Similarly, Mr. Johnson

argues in conclusory terms that the magistrate judge erred in denying his motion

(continued...)

-4-

In its March 31, 2009 opinion and order, the district court outlined

Mr. Johnson’s medical treatment and concluded that “the acts complained of do

not show deliberate indifference to [his] medical needs[.]” Aplt. App. at 613. 

We have reviewed the record, the parties’ appellate filings, and the relevant legal

authority, and affirm for substantially the same reasons set forth by the district

court. There is no question that the defendants adequately addressed

Mr. Johnson’s medical needs; the record contains more than 200 pages of medical

records documenting his treatment. His apparent disagreement is with the

orthopedic specialist’s opinion that he does not need immediate surgery. 

However, “a prisoner who merely disagrees with a diagnosis or a prescribed

course of treatment does not state a constitutional violation.” Perkins v. Kan.

Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999). The only other conceivable

argument is a delay in receiving treatment. But there is no evidence of delay or

the substantial harm required to state such a claim. See Olson v. Stotts, 9 F.3d

1475, 1477 (10th Cir. 1993) (holding that a delay in medical care can only

constitute an Eighth Amendment claims if there has been a deliberate indifference

that results in substantial harm).3

 
3

(...continued)

to compel the defendants to obtain and produce the medical records of the outside

specialists who examined and treated him. Again, his failure to cite any legal

authority means the issue is waived.

-5-

In his opening brief, Mr. Johnson outlines his medical treatment and argues

that the district court misinterpreted the facts. To the contrary, the court carefully

and completely reviewed the facts, assumed they were true, and concluded as a

matter of law that they failed to state a cognizable claim for relief. Under

§ 1915(e)(2)(B)(i), an appeal that is frivolous should be dismissed. An appeal is

frivolous where “the result is obvious, or the appellant’s arguments of error are

wholly without merit.” Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987)

(en banc) (quotation omitted). Mr. Johnson’s appeal meets this test. Moreover,

we assess one strike against Mr. Johnson under § 1915(g) because we dismiss the

appeal as frivolous. We remind him that if he accrues three strikes, he may no

longer proceed IFP while a prisoner in any civil action or appeal filed in federal

court unless he is “under imminent danger of serious physical injury.” Id. 

Last, although the district court dismissed Mr. Johnson’s case as frivolous,

it nonetheless granted his motion to proceed IFP on appeal. In light of our

conclusion that Mr. Johnson’s appeal is frivolous, we VACATE the court’s grant

of IFP status on appeal, and DENY IFP status on appeal. Cf. Coppedge v. United

States, 369 U.S. 438, 445-46 (1962) (holding that a district court’s certificate that

an appeal is not taken in good faith “is not conclusive, although it is, of course,
-6-

entitled to weight”). Mr. Johnson is ordered to make immediate payment of the

entire appellate filing fee.

The appeal is DISMISSED.

Entered for the Court

John C. Porfilio

Senior Circuit Judge