* This order and judgment is not binding precedent, e xcept under the

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

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

### DEC 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LARRY JEROME MOORE,

Plaintiff-Appellant,

v. PRISON HEALTH SERVICES, INC., a Delaware Corporation; SHARON L. BAUCOM; MARVIN METTSCHER; LOUISA OSBORNE; RAYMOND ROBERTS; NADINE BELK; ROBERT HANNIGAN; STEVE DECHANT; DALE STURGEON; ROBERT DALE; ELIZABETH LONG, in their official and individual capacities, Defendants-Appellees. No. 98-3310 (D.C. No. 95-CV-1289-DES)

(D. Kan.) (24 F. Supp. 2d 1164)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and McKAY, Circuit Judges.-2-

After examining the briefs and appellate record, th is 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. Plaintiff, a state prisoner with an above-the-knee amputation of his left leg, brought this action under 42 U.S.C. § 1983, 42 U.S. C. § 12132 (Americans with Disabilities Act, or ADA), 29 U.S.C. § 794 (Rehabil itation Act), and state tort law, to redress allegations of mistreatment in conn ection with his disability. The district court entered summary judgment in favor of defendants on the federal claims and dismissed the state claims without prejudice. See Moore v. Prison Health Servs., Inc. , 24 F. Supp. 2d 1164 (D. Kan. 1998). Plaintiff no w appeals, challenging the grant of summary judgment. On de novo review, see Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1159 (10th Cir. 1999), we affirm the district court for substantially the reasons stated in its m emorandum and order. The pertinent facts are set out in the district cou rt’s decision and need not be recited in detail. Plaintiff asserts that defen dants violated his rights when a wheelchair provided for his use fell over or collap sed three days after it was issued to him. With respect to the statutory disab ility claims, the district court held plaintiff’s complaints of inadequate treatmentdid not fall within the scope of the anti-discrimination provisions of the ADA and R ehabilitation Act. We agree.-3-

These statutes afford disabled persons legal rights regarding access to programs and activities enjoyed by all, not a general federa l cause of action for challenging the medical treatment of their underlying disabilities. See Bryant v. Madigan , 84 F.3d 246, 249 (7th Cir. 1996) (ADA); Grzan v. Charter Hosp. of N.W. Ind. , 104 F.3d 116, 122-23 (7th Cir. 1997) (Rehabilitation Act); United States v. University Hosp. , 729 F.2d 144, 156-60 (2d Cir. 1984) (same); cf. McNally v. Prison Health
Servs. , 46 F. Supp. 2d 49, 58 (D. Me. 1999) (applying dis tinction “between [non-actionable] claims that the medical treatment received for a disability was inadequate from [actionable] claims that a prisonerhas been denied access to services or programs because he is disabled,” and upholding, as example of latter, HIV patient’s claim of discriminatory denial of pre scription services provided to general population). Plaintiff’s broad reliance on Gorman v. Bartch , 152 F.3d 907 (8th Cir. 1998), which concluded that the ADA and Rehabilitat ion Act applied to a wheelchair-bound arrestee injured in an ill-equippe d police van, is misplaced. The court was able to reach that conclusion only by fir st holding that “[a]rrestee transportation is a program or service” within the meaning of the disability statutes. Id. at 913. Whether or not we agree in principle with that holding, plaintiff has not identified any comparable programor service from which he was barred at the prison to satisfy the same statutory condition here.-4-

Turning to plaintiff’s constitutional claim, the di strict court properly invoked the “deliberate indifference” standard of Estelle v. Gamble , 429 U.S. 97, 104 (1976), which “has two components: an objectiv e component requiring that the pain or deprivation be sufficiently serious; an d a subjective component requiring that the offending officials act with a s ufficiently culpable state of mind.” Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996) (quotation omitted). The objective component requires an “extreme deprivation” denying a “minimal civilized measure of life’s necessities ar e sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian , 503 U.S. 1, 9 (1992) (quotations omitted). The test for the subj ective component is whether “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan , 511 U.S. 825, 837 (1994). Viewed in a light most favorable to plaintiff, the record shows in pertinent part: on June 17, 1993, plaintiff was given a usedwheelchair which, despite a bent left wheel, he acknowledged to be in good work ing condition; over the next three days, the defect in the wheel became more pro nounced, making the chair harder to roll, a complaint plaintiff voiced to a f ew inmates and prison officers but not to any medical personnel; on June 20, the w heelchair collapsed or fell over, bruising plaintiff’s hand and arm; he was pro mptly treated and issued a newer wheelchair, which had been kept in reserve fo r emergency medical-5-

response. These facts do not support a triable cla im under the constitutional standards set out above. It is doubtful that plaintiff’s isolated fall and minor resultant injury constituted the extreme deprivation required by Hudson , but, in any event, there is no evidence that prison officia ls knew of and disregarded an excessive risk that such an accident would occur, as required by Farmer . Some inmates and officers were told the wheelchair was b ecoming more difficult to roll, but the record contains no mention of a risk of col lapse or fall in this regard. As for the rolling difficulty itself, the relatively s hort period of inconvenience or discomfiture involved clearly does not raise a clai m of constitutional deprivation under Hudson . See also Whitnack v. Douglas County , 16 F.3d 954, 958 (8th Cir. 1994) (collecting cases from this and other circuit s reflecting significance of duration in Eighth Amendment analysis). The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge