United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2427

___________
Ann Dulany, Trenace White, Jane Doe, * Lillian Taylor, Vicky Williams, Larfay * Primus, Pamela Williams, Treva * Merriweather, Shirley Small, Becca * Hughes, Lisa Suter, Carmen O'Neil, * Kimberly Collins, Leta Salyer, Lana * Anderson, Brenda Foster, Alisa * Teuber, Polly Guidorzi, Shirley Allen, * Patricia Prewitt, on behalf of * themselves and all other prisoners at * Chillicothe Correctional Center and * Renz Correctional Center, *
* Appeal from the United States Plaintiffs-Appellants, * District Court for the
* Western District of Missouri.
v. *
* Mel Carnahan, Governor of Missouri, * in his official capacity; Dora Schriro, * Director, Department of Corrections, * Agency of the State of Missouri, in her * official capacity; George Lombardi, * Director, Division of Adult Institutions, * in his official capacity; Dale Riley, * Director, Division of Classification and * Treatment, Missouri Department of * Corrections, in his official capacity; * Randee Kaiber, Assistant Director/Health *The Honorable Richard H. Battey, Chief Judge, United States District Court for 1 the District of South Dakota, sitting by designation.
-2- Service, Division of Classification and * Treatment, Missouri Department of * Corrections, in his official capacity; * Brian Goeke, Superintendent of Renz * Correctional Center, in his official * capacity; Thelma Grandison, * Superintendent of Chillicothe * Correctional Center, in her official * capacity; Correctional Medical Systems, * Inc., in its capacity as contractual health * care provider to Renz and Chillicothe * Correctional Centers, *
* Defendants-Appellees. *

___________ Submitted: February 10, 1997 Filed: December 31, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judg e, and BATTEY, 1 District Judge.

___________ HANSEN, Circuit Judge. The plaintiffs, a group of female inmates from two Missouri state prisons, brought this suit agai nst various state and prison officials pursuant to 42 U.S.C. § 1983 (1994),

c l aiming the defendant state prison officials have been deliberately indifferent to their serious medical needs in vio lation of their constitutional rights and rights secured under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101- 12213The Honorable Fernando J. Gaitan, Jr., United States District Judge for the 2 Western District of Missouri.
-3- (1994). Th e district court granted summary judgment in favor of the defendants. The 2 plaintiffs appeal, arguing that the district court erred in granting summary judgmen t without allowing them an opport unity for discovery. They also contend that the district court erroneously made credibility determinations on the deliberate indifference issue, failed to consid er the whole record, considered the plaintiffs’ claims in isolation, failed to consider the threat of injury from the alleged systemically deficient h ealth care system, and erroneously dismissed their ADA claims. We affirm.

I.

The pl aintiffs are a group of 20 female prisoners incarcerated in two Missour i prison facilities--the

Renz Correctional Center and the Chillicothe Correctional Center. They filed a comp laint on behalf of themselves and all female prisoners incarcerated in Missour iprison facilities, alleging that the Missouri Department of Corrections i s providing inadequate medical care for women prisoners. The plaintiffs also sought t o assert the rights of female prisoners with disabilities, alleging that the defendant stat e prison officials are not complying with the ADA. The plaintiffs moved for clas s certification.

The d efendants moved to dismiss or in the alternative for summary judgment , supported by physic ian affidavits, the relevant institutional policies, and many volumes of me dical records relevant to the allegations specified in the complaint. At the sam e time, the defendants provided the plaintiffs’ attorneys with the remainder of th e plaintiffs’ medical records documenting treatment for conditio ns that were not addressed in the complaint. On September 1, 1995, the plaintiffs moved the district court for an extension of time in whic h to respond to the defendants’ motion for summary judgment in order to fully review the medical records and documentsThe dis trict court provisionally denied summary judgment as to one plaintiff , 3 Ja ne Doe, and ordered the plaintiffs to reveal her identity to allow the defendants a n opportuni ty to specifically refute her claim. Thus, her claims will not be discussed in this appeal.
-4- provided by the defendants. The district court granted the plaintiffs an extra 30 days to respond. The plaintiffs submitted inmate affidavits, affidavits of medical experts, an d other documentation in opposition to the defendants’ summary judgment motion.

OnOctober 2, 1995, the defendants moved the district court to stay discover y pending the determination of their dispositive motion. In support of their motion for a stay of discovery, the defendants asserted that the volumes of documents they ha d voluntarily provided were sufficient to evaluate the adequacy of the plaintiffs’ medical

care. The defendants urged the court not to allow a fishing expedition. The plaintiffs opposed the motion, arguingthat summary judgment would be inappropriate before the parties had an adequate opportunity to develop the fact s through discovery. On October 5, 1995, the district court entered an order staying discovery.

Afterreviewing the documents and affidavits submitted by both parties, th e district court granted the defendants’ motion for summary judgment in part, concluding that 19 of the 20 plaintiffs had failed to create a genuin e issue of material fact to indicate that the d efendants had been deliberately indifferent to their serious medical needs. 3 Becau se the named plaintiffs were unable to demonstrate deliberate indifference, th e district court denied their motion for class certification. The plaintiffs appeal.

II.

We review de novo the district court’s grant of summary judgment, applying the same standards as the district court. Mayard v. Hopwood , 105 F.3d 1226, 1227 (8th-5-

Cir. 1997). Summary judgment is appropriate if the record “show[s] that there is n o genuine i ssue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). We view the facts and the inferences to be drawn from them in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Ra dio Corp. , 475 U.S. 574, 587 (1986). “Rule 56(c) mandates the entry of summary judgm

ent, after adequate time for discovery and upon motion, against

a p arty who fails to make a showing sufficient to establish the existence of an elemen t

essen tial to that party’s case, and on which that party will bear the burden of proof a t trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). We look to the substantive law to determine whether an element is essential to a case, and “[o]nly disp utes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The Eighth Amendment, as applied to the states through the Fourteenth Amendment, provides the substantive law for the case at hand. The Eighth Amendment’s proscription of cruel and unusual punishment obligates prison o fficials to provide inmates with medi cal care. See Estelle v. Gamble , 429 U.S. 97, 103 (1976). To prevail on a claim of constitutionally inadequate medical care, the inmate must show that the prison officials’ conduct amounted to “deliberate indifference to [the pri soner’s] serious medical needs.” Id. at 104; see also Coleman v. Rahija , 114 F.3d 778, 784 (8th Cir. 1997).
A. Discovery

The plain tiffs first contend that the district court erred by granting summary jud gment without affording them an opportunity to conduct adequate discovery. W e
rev iew for an abuse of discretion a district court’s determination that a claim is ripe for summary judgment. In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig. , 113 F.3d 1484, 1489 (8th Cir. 1997). While the trial court must giv e the parties adequate time to conduct discovery, see Celotex Corp. , 477 U.S. at 322, Rule 56(c) does no t require the completion of all discovery before a court may properly grant-6-

summary judgment. In re TMJ Implants Prod. Liab. Litig. , 113 F. 3d at 1489. Rul e 56(f) allows a party opposing summary judgment to seek a continuance and postpone

a summar y judgment decision until adequate discovery has been completed. Id. a t 1490. When seeking such a continuance, the party opposing summary judgment must file an affidavit

with the trial court to show what specific facts further discovery might unveil. Humphreys v. Roche Biomed. Lab., Inc. , 990 F.2d 1078, 1081 (8th Cir. 1993). “If a party opposing a summary judgment motion does not seek s helter under Rule 56(f)

or o therwise ask for a continuance, a court generally does not abuse its discretion i n granting summary judgment based on the record before it.” In re TMJ Implants Prod. Liab. Litig. , 113 F. 3d at 1490.

The plaintiffs did not file a Rule 56(f) motion and accompanying affidavi t

ar ticulating that further discovery was essential to their opposition of the defendants ’ summary judgment motion. The defendants voluntarily produced thousands of pages of docum ents, including the plaintiffs’ medical records, the relevant institutiona l po licies, and physician affidavits summarizing the plaintiffs’ medical records an d opining th at the plaintiffs received medically appropriate and adequate care. Th e plainti ffs requested a continuance to review and respond to these documents, but they did not therein assert that the documentation was incomplete or that additional specific discov ery was necessary in order for them to resist the summary judgment motion

. They were granted an additional 30 days in which to respond and then they oppose d

summar yjudgment by filing their sworn statements and some physician affidavits

. While they asserted in a footnote of their opposition to summary judgment that summary judgmentwa s premature due to the lack of opportunity for discovery, they failed t o articul ate what specific discovery was lacking that prevented them from adequatel y resisting summary judgment, nor did they seek a further continuance.
The plaintiffs opposed th e defendants’ motion to stay discovery but only argued that they were entitled to general information such as the name of each person likely to have discoverable information, a copy of all documents in the defendants’ possession-7-

that are relevant to the disputed facts alleged in the pleadings, the identity of any expert witnesses w ho may be used at trial, and a statement of all opinions to be expressed

. Additi onally, the plaintiffs asserted they were entitled to tours of the correctiona l facilities, access to the medical records of every inmate, a ll quality improvement reports made in response to inmate complaints, and documentation of staffing levels, staffing patterns, and inmate deaths. The plaintiffs said that they sought “to discover critica l facts,” (Appellants’ App. at 199), but they did not articulate what part icular critical facts they needed to develop or hoped to unveil.

On appeal , the plaintiffs assert that they would have attempted to discover th e defendant prison officials’ state of mind by deposing them regarding the medical care providedto inmates and their knowledge of deficiencies in the medical care system

. Their intention to unveil these specific facts was not expressed to the district court in eith er the plaintiffs’ resistance to the stay of discovery or in their request for a continuance to review the defendants’ documents. Further, the record in this case was not inadeq uate upon which to make a summary judgment determination, because th e defenda nts provided expert affidavits, the relevant prison policies, and all of th e plaintiffs’ medical records. Additionally, the plaintiffs responded with their ow n affi davits and expert affidavits. Thus, this case is unlike prior cases in which we held that the record was inadequate fo r summary judgment. See Smith v. Jenkins , 919 F.2d 90, 93 (8th Cir. 1990) (re versing a grant of summary judgment on a medical deliberate indifference claim where the record contained neither the p laintiff’s medical records nor evidence of the appropriate standard of care); Palmer v. Tracor, Inc. , 856 F.2d 1131-34 (8thCir. 1988) (holding summary judgment was premature because the only affidavit

on record was an unsworn affidavit of defendant’s attorney). Here, the plaintiff s responded to the motion and did not articulate why the lack of discovery p revented them from adequately opposing the motion. Because the plaintiffs did not take appropriate actio n to delay the entry of summary judgment for the purpose of obtaining additional specific facts necessary to resist the motion, we cannot conclude that the-8-

district c ourt abused its discretion in determining that the case was ripe for summary judgment. See In re TMJ Implants Prod. Liab. Litig. , 113 F. 3d at 1491.

B. Motion to Dismiss

Before turning to the merits of this appeal, we consider the defendants’ motion to dismiss. Th e defendants move to dismiss the appeals of certain named plaintiffs on the ground that they have been either released from custody or released from the two institutions involved in this case. The release of these plaintiffs f rom the prisons renders moot their request for injunctive relief, which was the only remedy they pursued. See Smith v. Boyd , 945 F.2d 1041, 1043 (8th Cir. 1991). Accordingly, we grant the motion to dismiss and dismiss the appeals of Alisa A. Teuber, Kimberly C ollins, Brenda Foster, Treva Merriweather, Carmen O’Neil, Leta Salyer, and Trenace White.

C. Deliberate Indifference
An Eighth Amendment claim that prison o fficials were deliberately indifferent to the medical needs of inmates involves both an objective and a subjective component. Coleman , 114 F.3d at 784. See also Farmer v. Brennan , 511 U.S. 825 (1994). Th e plaintiffs must demonstrate (1) that they su ffered objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs. Coleman , 114 F.3d at 784. “Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to

an Eighth Amendment violation only if those needs are ‘serious.’” Hudson v

. Mc Millian , 503 U.S. 1, 9 (1992). “[T]he failure to treat a medical condition does not constit ute punishment within the meaning of the Eighth Amendment unless priso n officials knew that the condition created an excessive risk to the inmate’s health an d then fail ed to act on that knowledge.” Long v. Nix , 86 F.3d 761, 765 (8th Cir. 1996). As long as this thresho ld is not crossed, inmates have no constitutional right to receive-9-

a particular or requested course of treatment, and prison doctors remain free to exercise their independent

medical judgment. Id. Deliberate indifference may be demonstrated by prison guards who intentionally deny or delay access to medical care or intentionally interfere with prescribed treatment, or by prison doctors who fail to respond to prisoner’s serious med ical needs. Estelle , 429 U.S. at 104-05. Mere negligence or medica l malpractice, however, are insufficient to rise to a constitutional violation. Id. at 106.

In this case, the district

court examined the claims and affidavits of each plaintiff to determine whether she had raised a genuine dispute of material fact on each element of her claim sufficient to survive the summary judgment motion. The district court concluded that while most of the plaintiffs had alleged serious medical needs, none had raised a genuine dispute of fact from which a trier of fact could conclude that the prison off icials had been deliberately indifferent to her serious medical needs. The plaintiff s disagree and contend that the district court erred by improperly making factua l determinations concerning the defendants’ subjective state of mind.

Our review o f the record convinces us that the district court did not mak e improp er factual determinations concerning the defendants’ subjective state of mind

. Rathe r, for each individual plaintiff, the district court examined the evidence an d concl udedthat the plaintiff had failed either to demonstrate an objectively seriou s medical need or to refute the medical records presented by t he defendants demonstrating that care had been provided. Contrary to the plaintiffs’ contention, the district court’s indication that many of th e plaintiffs had alleged objectively serious medical conditions does no t compel an automatic conclusion that the district court made improper fact

findings regarding the defendants’ subjective state of mind. Medical records revealed in each inst ance that the defendants had responded to and provided treatment for th e plainti ffs’ medical needs. Prison officials can be "found free from liability if the y responded reasonably to a risk, even if the harm ultimately was not averted." Farmer , 511 U.S. at 844. In the face of medical records indicating that-10-

trea tment was provided and physician affidavits indicating that the care provided wa s adequate, an inmate cannot create a question of fact by merely stating that she did not feel she received adequate treatment. We have carefully considered the evidenc e relating to each plaintiff’s claims, and briefly summarize them below.
Ann Dulany alleges sh e has not received medically appropriate treatment for her conditions of Crohn’s disease and coronary artery disease. Although diagnosed with a peptic ulce r, she contends no medical evidence supports this diagnosis. She als o complai ns that she has not had a physical examination since 1987. The defendant s present ed her medical records, which confirm a diagnosis of peptic ulcer but do no t confirm a diagnosis of Crohn’s disease. One provisional diagnosis noted the possibility of Crohn’s disease, but this was not a definitive diagnosis and a later record entere d after many diagnostic procedures for abdomin al pain ruled out any diagnosis of Crohn’s disease. Medical records also in dicate that Dulany has been sent to outside consultants who have not concluded she suffers from Crohn’s disease. The defendants assert that th e recommendations of outside specialists were followed for her coronary artery an d heart diseases and that diagnostic procedures and treatment were provided for her peptic ulcer. She alleges that prison officials failed to follow the recommendations of he r outside consul tants, but a prison doctor remains free to exercise his or her independent professional judgment and an inmate is not entitled to any particular course of treatment. Long , 86 F.3d at 765. Dulany also asser ts untimely follow-up care, allegedly indicating disr egardof a known risk. She demonstrates no harm from any delay in treatment , howe ver. We agree with the district court’s conclusion that Dulany’s medical records indicate that prison physicians have actively attended to her needs and provide d diagnostic procedures in attempts to determine the cause of her pain; there i s no evidence to ind icate that the prison medical officials did not respond reasonably to her medica l needs.

Lillia n

Taylor asserts she has not received appropriate mental health care. Sh e complains that she does not receive her medications regularly and that doctors fail to-11-

inquire into essential facts. Her medical records indicate she has seen a psychologist and a ps ychiatrist on numerous occasions and has been prescribed medication fo r psychiatric problems. The defendants presented two expert affidavits -- that of he r treati ng physician and that of a psychiatrist -- which stated that Taylor had receive d appropriate treatment and care. To resist summary judgment , she presented the affidavit of Dr. Rhoda Ruttenberg, w ho examined her prison psychiatric records. She notes that Taylor was prescribed lithium without a pre-lithium workup and that the first check of lit hium levels exceeded the recommended standard. Dr. Ruttenberg concluded tha t Taylor’s record “raises questions about the adequacy of care given this patient. ” (Appellant’s App. at 646.) While this affidavit may indicate possible negligence, it is in sufficient

to supply an inference of deliberate indifference. Grossly incompetent o r inadequat e care can constitute deliberate indifference in violation of the Eighth Amendme nt

where the treatment is so inappropriate as to evidence intentiona l maltreatment

or a refusal to provide essential care. Smith , 919 F.2d at 93. Dr

. Ruttenberg does not express an opinion that the care provided was grossly inadequate or resulted in any serious harm to Taylor. Taylor fails to provide evidence from which

atrier of fact could draw an inference that her medical treatment was grossl y inappropriate or evidenced intentional maltreatment.
Vicky Williams suffers seizures. She alleges that the prison medical staf f irregularly monitors her blood levels while she is on medications. Her medical records show that she has recei ved both treatment and frequent monitoring, though perhaps not at regular intervals as she would prefer. She ac knowledged that the prison medical staff does check her b lood levels when she reports feeling that the levels are high. Her own disagreem ent

with the frequency of monitoring her blood levels does not create a question of deliberate indifference as it does not indicate “an unnecessary and wanton infliction of pain” or treatment that is “repugnant to the conscience of m ankind.” Estelle , 429 U.S. at 105-06.-12-

Larfay Primus has tuberculosis. She complains that she has not received adequate treatment and was not instructed on how to take her medication. Her medical records show that she did receive instr uction concerning the medications, that she indicated she understood the informat

ion, and that she received treatment, although she was reported as not showing up fo r her first two treatments. The defendants presented a physician’s affidav it stating that she has received adequate treatment. To oppose summar y judgment, Primus presents the affidavit of Dr. Armond H. Start, who revie wed her prison medical records and concluded that her record “illustrates that the [prison’s tuberculosis] control pr ogram is not adequate.” (Appellant’s App. at 410.) However, Dr. Start’ s affida vit gives no basis for the conclusion that the tuberculosis control program is no t adequate, an d he does no more than articulate questions he has. He questions whether the cause of Primus’s tuberculosis infection was ad equately investigated, why three skin tests were given, and whether she received preventive counseling. The affida vit provides no more t han mere speculation about whether the prison officials acted with deliberate indifference, and speculation is not sufficient to survive a motion for summary judgment.

The plaintiffs liken this case to DeGidio v. Pung , 920 F.2d 525 (8th Cir. 1990), but the present case is far afield from the facts of DeGidio . Evi dence in DeGidio showed that the prison officials’ indiff erence and negligence toward an outbreak of tuberculosis infections resulted in almost 200 inmates being infected within a few years. For a period of about five years during which the outbreak began and s pread, no prison officials were responsible for the supervision, control, and administration of health services at th e prison. Id. at 529. To the contrary, in the present case, the Missouri Department o f Corrections has cont

racted with Correctional Medical Services, Inc. to provide general hea lthcare to the inmates, and the defendants provided unrefuted expert testimon y describing t

he prisons’ medical and mental health care policies as appropriate. Primus is the o nly plaintiff to raise the issue of the prison’s tuberculosis treatment in th e complaint, and her medical records indicate that the prison officials-13-

admin isteredtreatment to her. She has failed to present evidence from which to infe r that the defendants did not respond reasonably to the risk.

Medical records also indicate that Primus was seen on a continuing basis for an earache and other complaints, though these were not listed in the complaint as a basis for her claim. Dr. Start’s affidavit states that Primus’s ear infection “was treated with multiple drugs and [Primus] eventually developed a significant disabili ty that may or may not have been prevented by specialty consultation.” (Appellants’ App. at 417.) Th e existence of a possible alternate course of treatment, which “may or may not” have been successful , is not sufficient to raise an inference of deliberate indifference where th e prison officials acted reasonably but ultimately failed to avert the ha rm. See Farmer , 511 U.S. at 844. Primus’s records indicate that prison officials tried, albeit unsuccessfully, to treat her ear infection.
Pamela Williams was diagnosed with ma jor depression. She contends that she is

n o t being seen by a psychiatrist and that the prison doctor changes or discontinues her medication wi thout review by a psychiatrist. The defendants presented the affidavit of her treating physician and a psychiatrist, who determined that she received appropriate ment al health care. The district court noted that she was seen by a psychologist o r psychiatrist 19 times one year, received psychologic al counseling 20 times another year, and was seen at least 15 times for various o ther ailments. She submitted the affidavit of Dr. Jeffrey L. Metzner, who examined her psychiatric records. He expressed concern over the fact that her medications appeared to have been changed without direct contact between her and the prescribing physician. In his opinion, it was “v ery unclear” whether her treatment was adequate to attend to her serious medical needs. (Appellants’ App. at 636.) S uch an equivocal opinion is not sufficient to give rise to an inference o f deliberate indifference. “Grossly incompetent or inadequate care can constitut e deliberate indiffer

ence” but the care provided must be “so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.” Smith , 919 F.2d at 93. A medical expert opinion that it is “very-14-

unclear” whether treatment was adequate is simply insufficient to create a question of fact as to deliberate indifference.

Shirl ey Small suffers from hypothyroidism, heart attacks, constipation, nos e bleeds, and allergies. She underwent surgery in 1994 to remove a growth on her tongue and complains she received no fol low-up diagnosis. She complains that her medication is not properly dispensed. The defendants presented her records, which indicate that she is seen on a regular basis at the cardiac chronic care clinic, where staff members review her medications. Her disagreement over the course of her treatment does not raise an in ference of deliberate indifference, and she has failed to demonstrate harm from an y alleged delay in receiving a follow-up diagnosis.
Becca Hughes asserts that she suffers from carpal tunnel syndrome and tendinitis. Among other things, she complains that her outside specialist’s reco mmendations are not followed and she has not been offered the basic surgery for carpal tu nnel syndrome. The defendants presented a physician’s affidavit stating that she has not been diagnosed with carp al tunnel and that she is receiving appropriate treatment. Prison doctors have sent Hughes to a specialist, presc ribed medication, and performed diagnostic procedures for her. The specialist found n o indication of carpal tunnel. The latest examination by the doctor w ho originally said she was symptomatic of carpal tunnel now suspect s malingering on her part. In any event, showing that another physician might hav e ord ered different tests and treatment does not show deliberate indifference. Noll v

. Petrovsky , 828 F.2d 461, 462 (8th Cir. 1987).

Lisa Sut er suffers from Crohn’s disease and complains of problems obtainin g necessary medical supplies. She also alleges that she had an abnormal pap smear but no follow-up. There is evidence that she has not always received the needed supplies and that the defendants had trouble obtaining supplies on two occasions, but the medica l records generally indicate that supplies were regularly issued to her and that her parents purchased supplies for her when the wrong appliances were ordered.-15-

Records indicate that when less than the prescribed number of supplies were ordered, itwas based o n the nurse’s belief that Suter may have still had supplies in he r possession. Most often, the proper supplies appear to have been ordered. Sute r presented the affidavit of Dr. Start, who had reviewed her records. Dr. Start questions whether the prison’s medical contractor maintains an adequate inventory of neede d medical s upplies and whether an employee is responsible for inventory control an d ordering s upplies. He states that Suter’s medical record supports a suggestion of a callous attitude toward providing needed medical supplies. He expresses no othe r profes sional opinions with respect to the adequacy of Suter’s medical treatment an d articulates no professional

standard from which he draws his conclusion that the record indicates the suggestion of a callous attitude. Accordingly, his unsupported opinion is not suffic ient to create a factual dispute that the prison officials failed to respon d reasonab lyto her serious medical needs, where the medical records indicate tha t necessary supplies were generally ordered properly.

Lana Anderson suffers from a cardiac condition causing fluctuations in her blood pressure. Prison official s once took her to a hospital for chest pains, but she complains that it took three calls to the prison physicia n to obtain authorization for a transfer to the ho spital and that her condition continued to worsen. Medical records indicate that the emergency room physician determined that her ches t pain was non-cardiac, and she was ins tructed to continue her current medications. She continued to complain of pain and

was sent to a diagnostic center infirmary for observation. Records indicate that he r blood p ressure was monitored and she received treatment on several occasions. Th e objective portion of the deliberate indifference standard requires a showing of “verifying medi cal evidence” that the defendants ignored an acute or escalating situation or tha t delays adversely affected the prognosis given the type of injury in this case. Crowley

v. Hedgepeth , 109 F.3d 500, 502 (8th Cir. 1997); Beyerbach v. Sears , 49 F.3d 1324 , 1326 (8th Cir. 1995). Her medical needs were not disregarded, and shehas no verifiable

me dical evidence to indicate that the delay in transferring her to the hospital adversely affected her prognosis. Crowley , 109 F.3d at 502.-16-

Polly Guidorzi c omplains that she has breast lumps but received no lumpectomy to rule out a recurrence of an original malignancy. She complains that a mastectomy was perfor med

against her wishes and with no pathological findings recorded. Th e defenda nts presented medical records indicating that she consented to the procedure

. She merely claims that she does not remember signing the consent form and submits the affidavit of D r. Start who muses that he doubts if her consent was informed. This type of speculation does not create a reasonable inference of deliberate indifference.
Shirley Allen has a history of coronary artery disease. She asserts that on on e occasi on, she suffered intense chest pains, but correctional staff refused to inform th e medi cal department. She violated prison rules and went to the medical center on he r
own. The nurse informed her that she could not see a doctor for a week, and Alle n collapsed. She saw the doctor the following week. Her me dical records do not evidence this occurrence, but indicate extensive treatment for her cardiac condition throughout the period of h er incarceration. Allen presents no verifying medical evidence that sh e sufferedany adverse effect on her condition or prognosis from the delay of not seeing the physi cian on the day she allegedly collapsed. See Crowley , 109 F.3d at 502 ; Beyerbach , 49 F.3d at 1326.

P atricia Prewitt sought dental care and claims that the prison medical staf f extracted the wrong tooth. Medical records show that two teeth needed extraction, and she presented no evidence but her own opinion to refute the medical record. Eve n assuming he r assertion to be true, medical malpractice does not amount to deliberat e indifference “merely because the victim is a prisoner.” Estelle , 429 U.S. at 106.
The plaintiffs also presented the affid avit of a paralegal who reviewed the prison doct ors’ affidavits, checking them for accuracy with the medical records. In th e paralegal’s opinion, not all of the statements in the defendants’ expert affidavits ar e supported by the medical records . The paralegal’s affidavit, however, does not amount-17-

to evidenc e that the defendants acted with deliberate indifference when treating th e plaintiffs.

The objective medical evidence indicates that the defendants acted reasonably in response to those plaintiffs who had serious medical needs. The plaint iffs simply have not presented evidence in any par ticular case that the course of treatment, or lack thereof, so deviat ed from professional standards that it amounted to deliberate indifference i n violation o f [the] [E]ighth [A]mendment right to be free from cruel and unusua l punishment.” Sm

ith , 919 F.2d at 93. Contrary to the plaintiffs’ assertion, our review of the record convinces u s that the district court did not resolve any questions of credibility in this case or improperly disregard the plaintiffs’ expert witnesses. Even considering the plaint iffs’ experts’ opinions, the plaintiffs have failed to present evidence refuting th e objective medical records sufficient to give rise to an inference of deliberate indifference.

The plaintiffs contend that the district court erred by evaluating each plaintiff’ s claim individually

and not considering the entire record when determining whether there existed a question of fact on the issue of deliberate indiffere nce. The district court did not consider t he affidavits of inmates who are not named as plaintiffs. We, too, decline t o
con sider the affidavits and claims of persons who are not listed as plaintiffs. Unless a t least one named plaintiff can demonstrate an actual or imminent injury in fact stemming from the deliberate indifference of prison officials, w e have no basis on which to consider eit her system wide problems or on which to grant system wide relief. See Lewis v

. Casey , 116 S. Ct. 2174, 2179 (1996) ("the success of t he respondents' systemic challenge [is] dependent on their ability to show widespread actual injury"); Smith v. Arkansa s Dep’t of Correction , 103 F.3d 637, 643-44 (8th Cir. 1996) (noting a plaintiff mus t

" d emonstrate, among other things, either an actual or imminent injury in fact"); see also Alpern v . Utilicorp United, Inc. 84 F.3d 1525, 1539 (8th Cir. 1996) ("A clas s representative must be part of the class a nd possess the same interest and suffer the same injury as the class members.") (internal quotations omitted).-18-

While “a remedy need not await a tragic event,” Helling v. McKinney , 509 U.S. 25, 33 (1993), the plaintiffs mu st be able to identify a known and unreasonable risk from which serious damage to their future health is imminent in order to maintain suit. In this case, the objective record of medical care provided to the plaintiffs indicates that prison officials took reasonable steps to alleviate the known risks, and the plaintiffs have neither refuted this medic al evidence nor testified to callous comments or actions that could indicat e deliberate indifference.
The plaintiffs argue that what is merel y negligent in one isolated or individual case may evidence deliberate indif ference when it is part of a pattern of conduct on the whole record, citing DeGidio v. Pung , 920 F.2d 525, 532 (8th Cir. 1990). Previously in thi s case, we distinguished DeGidio , which involved a systemic failure to properly trea t tuberculosis, resulting in nearly 200 inmate s being infected during a time when the prison had no official supervising or administrating health services for the prison. We held i n DeGidio that the prison officials’ failure to supervise and organize he alth services, to offer preventive treatment, and to adequately respond to the outbreak of infection, id. at 529-30, amountedto “a consistent pattern of reckless or negligent conduct [that] is sufficient to est ablish deliberate indifference to serious medical needs.” Id. at 533. Only one active

case of t uberculosis is asserted in the complaint of the present case. Others now assert they were not properly tested or treated, but their claims were offered only in resistance to summary judgment, preventing the defendants from responding to their claims. In any event, we have considered the entire record relating to the named plaintiffs, and th e situation presented here does not rival that of DeGidio . The defendant s presented medical records an d expert affidavits indicating that the prison’s treatment of tuberculosis i s adequate. The plaintiffs’ one conclusory expert affidavit does not rebut the defendants’ evidence sufficient

ly to create a question of fact on whether the defendants have reacted unreasonably to the injury or imminent threat of harm from its treatment of tuberculosis. See Miller v. Citizens Sec. Group, Inc. , 116 F.3d 343, 346 (8th Cir. 1997) (“A conclusory statement in an affidavit,-19-

however, c annot create a genuine issue of material fact which precludes summary judgment.”).

Our role is not to police the adequacy of prison medical systems. The Suprem e Court has defined our role as follows:

It is the role of courts to provide relief to claimants, in individual or clas s actions , who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that

of the political branches, to shape the institutions of governme nt in such fashion as to comply with the laws and th e Constituti on. . . . [T]he two roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, or tha t will imminently be suffered, by a particular individual or c lass of individuals, orders the alteration of an institutional organization or procedure that causes the harm.. But the distinction between the tworoles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm wer e needed, but merely the status of being subject to a governmental institution that was not organized or managed properly. If [for example] a health y inmate who had suffered no deprivation of needed medical treatment were able to claim

violation of his constitutional right to medical care, simply on the ground that the prison medical facilities were inadequate, the essentia l dist inction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.

Lewis , 116 S. Ct. at 2179 (citation omitted). We conclude that the district court properly examined the claims of each individually named inmate to dete rmine whether she suffered constitutio nal injury of deliberate indifference to a serious medical need. A number o f individual and isolated incidences o f medical malpractice or negligence do not amount to d e liberate indifference without some specific threat of harm from a related system wide deficiency, which is not present i n this case. We are unable to find a single plaintiff who has been injured or is threatened with an imminent threat of harm-20-

by a negligent medical policy, procedure, or treatment recklessly off ered or omitted by the defendants.

The p laintiffs also contend the district court improperly concluded that multipl e contacts with medical personnel precluded a finding of deliberate indifference, citin g Warre n v. Fanning , 950 F.2d 1370, 1373 (8th Cir. 1991). Contrary to the plaintiffs ’ contention , the district court did not draw the simple conclusion that multiple contact s with medi cal care providers precludes a finding of deliberate indifference. The court noted that multiple contacts with medical care providers had taken pl ace only to show that the medical record was at odds with a plaintiff’s specific contention. For instance, Vicky Willi ams complained that her blood levels were not being regularly monitored, Pamel a Williams complained of difficu lty getting to see the prison psychologist or a psychiatrist, and Lana Anderson complained that her blood pressure is not adequately monitored. In each instance, the distri ct court recounted multiple contacts with medical care providers, whic h the plaintiffs failed to adequately rebut and which contradict the plaintiffs ’ complaints. The district

court did not grant summary judgment on the sole basis that the plaintiffs had multiple contacts with medical care providers but on the plaintiffs’ failure to re but the verified medical evidence with any proof of deliberate indifference to thei r medical needs.

D. ADA Claim
The plaintiffs’ complaint states t hat the defendants have violated their rights under the ADA because priso n facilities are not accessible to plaintiffs with impaired mobility, prisoners with disa

bilities are not provided proper physical therapy or assistance needed to participate in prison activities, and they are denied medically necessary equipment to aid thei r mobility. The only plaintiff to specifically complain of experiencing thes e problems, however, was Trenac e White, whose appeal we have dismissed as moot. The remaining plaintiffs do not assert any specific claims under the-21-

ADA. Accordingly, the ADA issue became moot with the dismissal of Trenace White, and we need not address the district court’s resolution of the ADA claims.

III.
Accordingly, having carefully considered the plaintiffs' arguments and the record, we affirm the judgment of the district court.
RICHARD S. ARNOLD, Chief Judge, concurring in part and dissenting in part.
I join the Court’s opinion and concur in the result reached, except with respect to the plaintiff Shirley Allen. In my opinion, her case raises genuine issues of material fact that deserve a trial by jury.
It is undisputed that Ms. Allen had a serious heart condition. There is evidence that on an occasion when she suffered intense che st pains, correctional staff refused to inform the medical department. Ms. Allen we nt to the medical center anyway, was told that she couldnot see a doctor for a week, and then collapsed. In fact, she did not see a doctor until the following week.

This seems to me a paradigm case of deliberate indifference. The fact that “[h]er medical records do not evi dence [the] occurrence” alleged in Ms. Allen’s affidavit, ante at 17, is not relevant at the summary-judgment stage. She is obviously competent t o testif yas to what happened in respect of her own physical condition. Her testimony i s admissible and could be believed by a jury. The absenc e of mention of the incident in the defendants’ medical records may actually cut in favor of the plaintiff, beca use it may show that defendants covered up the occurrence. If one has a serious heart condition, suffers intense chest pains, and collapses, it seems to me that a trier of fact-22-

could reasonablyfind that withholding attention from a physician for a week amounts to deliberate indifference to a serious medical need.
For these reasons, I respectfully dissent in part.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.