* This order and judgment is not binding precedent, except under the doctrines of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.

UNITED STATES COURT OF APPEALS Filed 7/10/96 TENTH CIRCUIT

ERSKINE C. RAGLAND,

Plaintiff-Appellant,

v. PATRICK J. SULLIVAN, JR., Jane Doe (1), Jane Doe (2), John Doe (1), Jane Doe (3), John Doe (2) individually and in their official capacities, Defendant-Appellee. No. 96-1043 (Dist. of CO) (D.C. No. 93-D-1529)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This case is therefore ordered submitted without oral argument. Plaintiff Erskine Ragland appeals the district court’s grant of summary judgment on his civil rights action brought pursuan t to 42 U.S.C. § 1983. Plaintiff alleged that defendants’ failure to preve nt him from attempting suicide while he was a prisoner at the Arapahoe County Dete ntion Facility (ACDF) violated his rights under the Eighth and Fourteenth Amendments. On appeal, plaintiff argues that a genuine issue of material f act exists with respect to the circumstances surrounding his suicide attempt; thatthe district court failed to address his argument that defendant Robert Sullivan , Arapahoe County Sheriff, was liable in his official capacity for the policie s of ACDF; that the district court failed to apply the summary judgment standard prope rly; and that the district court’s grant of summary judgment was inconsistent with its order of July 21, 1994. This court reviews the district court’s entry of su mmary judgment de novo

. Schusterman v. United States , 63 F.3d 986, 989 (10th Cir. 1995), cert. denied, 64 U.S.L.W. 3778 (U.S. May 20, 1996). Summary judgmen t should be denied “if the evidence is such that a reasonable jury could retur n a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Moreover, “[o]nly disputes over facts that might affect the o utcome of the suit under the-3-

governing laws will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will no t be counted.” Id. Plaintiff first argues that a genuine issue of mate rial fact exists with respect to the circumstances surrounding his suicide attemp t. Specifically, plaintiff asserts shortly before his suicide attempt he told the nurse on duty, “I have acute depression, anxiety attacks, suicidal ideation . . . I’m suicidal.” Plaintiff further contends the deputy on duty overheard this statemen t and that he told the deputy, “I feel I am going to hurt myself.” Plaintiff argu es that a genuine issue of material fact exists as to the circumstances surrou nding his suicide attempt because the affidavit of the deputy on duty indicat es plaintiff told her only that he would hurt himself if he did not receive the medication he requested. To succeed on his claim under § 1983, plaintiff mus t demonstrate defendants’ actions violated the “deliberate indiff erence to serious medical needs” standard of Estelle v. Gamble , 429 U.S. 97, 104 (1976). Under this standard, an inadvertent failure to provide adequate medical car e will not support an action. Id. at 105-06. As a threshold matter, the court grants plaintiff’s motion to correct the record under Rule 10(e) of the Federal Rules of App ellate Procedure. Upon careful review of the record as modified, the courtconcludes that while an issue of fact may exist with respect to what plaintiff to ld the nurse and deputy on duty-4-

shortly before his suicide attempt, summary judgmen t is nevertheless appropriate because that factual dispute is not one which will affect the outcome of the suit. Assuming plaintiff told the nurse and deputy on duty, “I have acute depression, anxiety attacks, suicidal ideation . . . I’m suicid al,” and, “I feel I am going to hurt myself,” plaintiff has nevertheless failed to prese nt evidence from which a reasonable jury could return a verdict in his favor

. Specifically, the record indicates that prior to hi s suicide attempt plaintiff had recently received extensive psychiatric evaluat ion, lasting more than one month, at the Colorado Mental Health Institute (CMH I). Based on this extended evaluation, plaintiff was diagnosed with “malingeri ng psychosis” and ordered off all medications. The physician’s notes provided to ACDF officials indicate that plaintiff’s malingering psychosis and depression re presented attempts to manipulate his doctors in order to obtain medicatio n and affect the legal charges against him. Under these circumstances, defendants ’ refusal to provide plaintiff with a psychiatrist and medication on demand, afterfirst checking his records, falls short of the “deliberate indifference” contemplated by the Court in Estelle

. Because plaintiff has failed to create a genuine i ssue of material fact with respect to whether ACDF officials acted with delibe rate indifference to his serious medical needs, it is unnecessary for this c ourt to reach plaintiff’s argument that the district court failed to address his claim that Sheriff Sullivan-5-

was liable in his official capacity for the policie s of ACDF. With respect to plaintiff’s arguments that the district court faile d to apply the summary judgment standard properly and that the court’s grant of sum mary judgment was inconsistent with its order of July 21, 1994, plain tiff’s contentions are based on a misunderstanding of the difference between a motion to dismiss for failure to state a claim upon which relief can be granted and a motion for summary judgment. Although plaintiff’s complaint stated a claim, plaintiff nevertheless failed to present facts from which a reasonable jury could return a verdict in his favor. For the foregoing reasons, the judgment of the Unit ed States District Court for the District of Colorado is AFFIRMED. The mandate shall issue forthwith. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge