* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### FEB 10 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LAVONE B. BARRON, Plaintiff-Appellant,

v. FLOYD POHLMAN, M.D., Defendant-Appellee. No. 04-1212 (D.C. No. 02-MK-1494 (PAC))

(Colorado)



### ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.
Lavone B. Barron, an inmate of the Sterling Correct ional Facility (SCF), filed a pro se 42 U.S.C. § 1983 action against several employees o f the Colorado Department of Corrections (DOC). Mr. Barron conten ds the DOC employees acted with deliberate indifference to his serious m edical needs in violation of the1 Mr. Barron also alleges that dismissal of his claim s pursuant to a motion to

dismiss or a motion for summary judgment violates h is Seventh Amendment right to a jury trial. The Seventh Amendment is not viol ated by proper dismissal of claims, because such a ruling means that no triable issue exists to be submitted to a jury. Shannon v. Graves , 257 F.3d 1164, 1167 (10th Cir. 2001). -2- Eighth Amendment’s prohibition against cruel and un usual punishment. 1 The district court dismissed the claims against defendants Christine Windsor and Nancy Kelly for failure to state a claim, and subse quently granted summary judgment in favor of defendant Floyd Pohlman. The court also denied Mr. Barron’s request to proceed in forma pauperis ( ifp ) on appeal. We grant Mr. Barron’s renewed request to proceed ifp but affirm the district court. Mr. Barron alleges he injured his shoulder on June 18, 2001, when he slipped and fell on a wet floor at SCF. He was see n on the same day by Ms. Windsor, a DOC nurse, who examined him and failed t o notice any bruising on his skin. She recommended he take Tylenol and restfor the remainder of the day. Mr. Barron reported to work the next morning and to ld his supervisor, Lieutenant Kelly, he was in pain from his fall and wanted medi cal care. He contends Lt. Kelly promised to “call medical” later that morning but failed to do so. When Mr. Barron again asked Lt. Kelly to call medical, she r eplied that she was busy and he would have to either wait until she completed her t ask or ask someone else to contact medical on his behalf. On June 21, Mr. Barron was examined by the SCF medi cal staff. After X--3-

rays of his shoulder were performed and evaluated, he was sent to a hospital for further treatment. At the hospital, he was diagnos ed with a separated shoulder and returned to the prison facility. Some time lat er, Mr. Barron was diagnosed with a tear of the rotator cuff of his right should er. Dr. Pohlman, an orthopedic surgeon, surgically repaired his rotator cuff on Se ptember 11, 2002. Dr. Pohlman saw Mr. Barron for follow-up visits on September 17 and October 8. On the October 8th visit, Dr. Pohlman prescribed an elasti c sports cord for Mr. Barron to use to rehabilitate his injured shoulder. Mr. Barr on contends that he re-injured his shoulder on October 10 while using the sports c ord. The legal sufficiency of a complaint is a question of law; therefore, a Rule 12(b)(6) dismissal is reviewed de novo

. Sutton v. Utah State Sch. For Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). “A court r eviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991). We also review the legal is sues surrounding the grant of summary judgment de novo , considering all evidence in the light most favora ble to the nonmoving party. DeSpain v. Uphoff , 264 F.3d 965, 971 (10th Cir. 2001). Summary judgment is ultimately appropriate when the re is “no genuine issue as to any material fact and . . . the moving party is ent itled to judgment as a matter of law.” Oliver v. Woods , 209 F.3d 1179, 1184 (10th Cir. 2000) (quotation and-4-

citation omitted). The conditions of prisoner confinement create an ob ligation on the state to provide adequate health care for a prisoner. Estelle v. Gamble , 429 U.S. 97, 103 (1976). In recognition of this duty, we have held that “[a] prison official’s deliberate indifference to an inmate’s serious medi cal needs violates the Eighth Amendment.” Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). However, not all failures to provide healthcare, oreven adequate, non-negligent care, rise to the level of a constitutional violati on. “In order to state a cognizable claim, a prisoner must allege acts or omissions suf ficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle , 429 U.S. at 106. Deliberate indifference involves both an objective and a subjective component. Sealock, 218 F.3d at 1209. The former is met if the depri vation is sufficiently serious, that is, “if it is one that h as been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999) (citation omitted). The latt er is satisfied if an officer “knows of and disregards an excessive risk to inmat e health or safety.” Sealock, 218 F.3d at 1209 (quoting Farmer v. Brennan , 511 U.S. 825, 837 (1994)). Essentially, the officer must be “aware of facts fr om which the inference could be drawn that a substantial risk of serious harm exist s, and he must also draw the-5-

inference.” Garrett v. Stratman , 254 F.3d 946, 949-950 (10th Cir. 2001) (quoting Farmer , 511 U.S. at 837). On reviewing the record before us, we cannot conclu de that Mr. Barron has been treated with deliberate indifference. Mr. Bar ron’s pleadings, construed in the light most favorable to him, fail to establish he suffered a “serious medical need” sufficient to state a constitutional violatio n. He alleges that he slipped and fell, injuring his shoulder. He does not allege th at, as a result, he manifested objective symptoms that could have been interpreted as sufficient to trigger the need for hospitalization or additional treatment, s uch as signs of bruising, bleeding or broken bones. Simply put, his symptoms were not “so obvious that even a lay person would easily recognize the necess ity for a doctor’s attention.” Hunt , 199 F.3d at 1224. Even assuming, arguendo , that Mr. Barron’s slip-and-fall qualifies as “sufficiently serious,” his allegations fail to sat isfy the subjective prong of the deliberate indifference test. When Mr. Barr on reported to medical after his fall, he alleges that Ms. Windsor requested he remo ve his shirt so she could examine his injury. She recommended he rest the re mainder of the day and prescribed treatment for his pain, in the form of T ylenol. While Mr. Barron may take issue with the treatment approach of Ms. Winds or, a prisoner’s difference of opinion with prison medical personnel regarding the type of treatment he should-6-

receive does not rise to the level of a constitutio nal violation. See Johnson v. Stephan , 6 F.3d 691, 692 (10th Cir. 1993). There is simpl y no evidence that Ms. Windsor was aware of any facts from which an infere nce could be drawn that a substantial risk of serious harm existed, or that s he drew such an inference. Farmer , 511 U.S. at 837. Mr. Barron did allege Lt. Kelly twice ignored his p lea for medical attention while at work. According to Mr. Barron’s complaint , however, Lt. Kelly did inquire of Mr. Barron as to whether he had receiveda “lay-in” from his medical visit the previous day, to which Mr. Barron respond ed, “no.” There is no evidence Lt. Kelly was presented either a diagnosis by a physician of a medical need mandating treatment, or a condition which a lay person would easily recognize as necessitating a doctor’s attention. I ndeed, the evidence suggests Lt. Kelly knew Mr. Barron had received a medical evaluation and his injury did not warrant permission to miss work. Therefore, we are not persuaded Lt. Kelly’s lack of response to Mr. Barron’s symptoms constitut es the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle , 429 U.S. at 104. Mr. Barron’s final contention is that Dr. Pohlman w as deliberately indifferent to his serious medical needs by failing to provide follow-up care after he re-injured his shoulder when his sports cord bro ke on October 10. We-7-

disagree. Dr. Pohlman provided an affidavit indicating he saw Mr. Barron for two follow-up visits following the surgery and, on both occasions, “he was healing in a satisfactory fashion.” Rec., doc. 64, ex. A at 2. On the October 8th visit, Dr. Pohlman prescribed Mr. Barron a “sports cord” and provided “instructions on how to use the cord and how to per form certain stretching exercises.” Id. Mr. Barron was also “given the instruction book that accompanies the sports cord.” Id. Most importantly, Dr. Pohlman states: I have not seen or had any contact with Lavone Barr on since his last visit on October 8, 2002. I am unaware of his condition since that time. . . . I have not been requested to see Lavone Barron since Mr. Barron’s last visit with me . . . . I am not aware of any request by L avone Barron that he see me or any other orthopedist or health care providersince Mr. Barron’s last visit with me . . . . Id. at 3. The uncontroverted evidence on the record t hus establishes Dr. Pohlman (1) did not see Mr. Barron after the re-jury; (2) w as unaware of the re-injury; and (3) was unaware of any requests to see him that mayhave been made by Mr. Barron after the re-injury. Furthermore, Dr. Pohlm an, a private practitioner, had “no authority or power to schedule or arrange medic al appointments with inmates at the Sterling Correctional Facility.” Id. Therefore, Mr. Barron has failed to demonstrate Dr. Pohlman knew of and disregarded an excessive risk to his health or safety. Sealock, 218 F.3d at 1209. Mr. Barron has also failed to establish that his re -injury qualifies as a “serious medical need” sufficient to state a consti tutional violation. Ms. Judy-8-

Ballard, the Health Services Administrator at SCF, provided an affidavit stating, “[b]etween September 11, 2002 and November 11, 2003 , Mr. Barron was seen at the SCF facility approximately twenty-seven times,” including twenty-two times after his re-injury on October 10. Rec., doc. 64, ex. C at 1-2. On November 25, 2002, approximately six weeks after the re-injury, a doctor evaluated Mr. Barron and concluded he “was receiving appropriate medical care and that physical therapy conducted by a licensed physical therapist was not medically necessary.” Id. at 2. In addition, a medical evaluation performed on November 12, 2003, indicated “there [was] no evidence of muscle atrophy in Mr. Barron’s right shoulder,” and “Mr. Barron [had] a normal range of motion.” Id. The examining physician assistant concluded that Mr. Barron’s sho ulder was “in all respects . . . within normal limits.” Id. In light of the fact that Mr. Barron has failed t o controvert any of this evidence, we cannot conclude his shoulder re-injury constituted a “serious medical need.” In sum, beca use Mr. Barron has failed to point to any evidence he either suffered a serious deprivation or the defendants knew he faced a substantial risk of harm and disreg arded that risk, he has failed to satisfy both prongs of the deliberate indifference test. Although we construe Mr. Barron’s pro se pleading liberally and apply a less stringent standard than we would to pleadings filed by lawyers, Haines v. Kerner , 404 U.S. 519, 520-21 (1972), we “will not supply additional factual-9-

allegations to round out [his] complaint or constru ct a legal theory on [his] behalf.” Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted). We AFFIRM the district court’s dismissal of these claims, and GRANT Mr. Barron’s request to proceed ifp on appeal. So doing, we remind Mr. Barron to continue making partial payments towards the balance of his assessed fees and costs until they are paid in full

. SUBMITTED FOR THE COURT

Stephanie K. Seymour Circuit Judge