*

This order and judgment is not binding precedent except under the doctrines of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

April 9, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY JOE CARTER,

Plaintiff - Appellant,

v.

BOARD OF COUNTY

COMMISSIONERS OF OKFUSKEE

COUNTY; JACK CHOATE, individually

and in his official capacity as Sheriff

Okfuskee County, 

Defendants - Appellees.

No. 09-7097

(D. Ct. No. 6:08-CV-00452-RAW)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in 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.

Plaintiff-appellant Terry Joe Carter appeals pro se from the district court’s order

granting defendants-appellees’ motion for summary judgment. We have jurisdiction

Appellate Case: 09-7097 Document: 01018399463 Date Filed: 04/09/2010 Page: 1 
- 2 -

under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

Mr. Carter was an inmate in Oklahoma’s Okfuskee County Jail from July 2007 to

February 2009. In September 2007, Sheriff Jack Choate obtained permission to modify

two cells in the Okfuskee County Jail in order to make better use of the space. The

modification began in early November 2007 and primarily involved cutting and removing

steel bars from the two cells. Much of this labor was completed by inmate trustees, who

are generally granted greater freedom and responsibility and are typically given extra

credit for their sentences based on work they complete in the jail. Mr. Carter did not

personally perform any of the steel cutting; however, he was one of two inmate trustees

who performed plumbing work during the modification. 

Near the beginning of the modification project, Bobby Mann, the inmate trustee

primarily responsible for performing the steel work, suggested to Sheriff Choate that the

bars in the cells might be covered with lead paint and requested protective masks to

prevent ingestion of lead particles. Sheriff Choate complied with Mr. Mann’s request and

provided the inmate trustees who were performing the steel work with the requested

masks. On December 10, 2007, inmate trustee Keenon Andrews complained of a rash

and was examined by Dr. Noel Miller, the local doctor who treats inmates at Okfuskee

County Jail. Dr. Miller discovered that Mr. Andrews had an elevated lead content in his

blood and suggested that he be removed from any possible exposure to lead. One month

later, tests revealed that Mr. Mann’s blood lead level was also above normal. 

Appellate Case: 09-7097 Document: 01018399463 Date Filed: 04/09/2010 Page: 2 
- 3 -

Accordingly, Sheriff Choate halted all work on the modification project and offered blood

tests to all inmates and jail employees. On January 31, 2008, Mr. Carter’s blood test

demonstrated that the lead content of his blood was normal for someone who is exposed

to lead as part of his occupational environment. Dr. Miller did not recommend that Mr.

Carter obtain any treatment for lead exposure. 

On December 4, 2008, Mr. Carter and seven other inmates filed this suit pursuant

to 42 U.S.C. § 1983. In their complaint, the inmates alleged that Sheriff Choate and other

prison officials violated their Eighth Amendment rights by requiring them to work in

conditions that exposed them to paint containing high levels of lead and to asbestos. 

These acts, the inmates contend, amounted to deliberate indifference to the inmates’

health and safety because Sheriff Choate and other prison officials knew or should have

known of the risks inherent in the modification project. After the inmates voluntarily

dismissed their asbestos-related claims, the defendants-appellees moved for summary

judgment. Concluding that the inmates had failed to establish any injury resulting from

lead exposure, the district court granted the defendants-appellees’ motion. Mr. Carter

now appeals from that decision.

II. DISCUSSION

We review de novo a district court’s decision to grant summary judgment. Kaul v.

Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). “Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

Appellate Case: 09-7097 Document: 01018399463 Date Filed: 04/09/2010 Page: 3 
- 4 -

the moving party is entitled to judgment as a matter of law.” Id. (quotations omitted). 

Although the moving party bears the burden of establishing the absence of a genuine

issue of material fact, “the non-movant may not rest upon its pleadings, but must set forth

specific facts showing a genuine issue for trial as to those dispositive matters for which it

carries the burden of proof.” Id. (quotations omitted).

The Eighth Amendment imposes a duty on prison officials to provide humane

conditions of confinement and to “take reasonable measures to guarantee the safety of the

inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotations omitted). The test

for deliberate indifference under the Eighth Amendment is both objective and subjective. 

Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). To satisfy the objective

component, an inmate must demonstrate that “the harm suffered rises to a level

‘sufficiently serious’ to be cognizable under the Cruel and Unusual Punishment Clause of

the Eighth Amendment.” Id. (internal quotations omitted). 

Although Mr. Carter alleged in his answers to interrogatories that he suffered

headaches, lung infection, and nausea as a result of lead exposure, he did not present any

specific facts that would demonstrate that he suffered a harm sufficiently serious to be

cognizable under the Eighth Amendment. Indeed, the only specific evidence offered by

Mr. Carter was the expert testimony of Dr. William Jones. That evidence, however, was

stricken from the record because Dr. Jones failed to timely produce his expert report. 

Accordingly, the district court correctly granted defendants-appellees’ motion for

summary judgment based on Mr. Carter’s failure to produce specific facts demonstrating

Appellate Case: 09-7097 Document: 01018399463 Date Filed: 04/09/2010 Page: 4 
1

On appeal, Mr. Carter also contends that his counsel’s failure to diligently pursue

Dr. Jones’s expert report violated his Sixth Amendment right to effective assistance of

counsel. This, however, is a civil case, and “[t]he general rule in civil cases is that the

ineffective assistance of counsel is not a basis for appeal or retrial.” Nelson v. Boeing

Co., 446 F.3d 1118, 1119 (10th Cir. 2006). Although we express no opinion on Mr.

Carter’s counsel’s performance, we acknowledge that his only possible remedy is not

reversal, but a legal malpractice suit against the allegedly deficient attorney. Id. 

- 5 -

he suffered a harm that is cognizable under the Eighth Amendment.1 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the order of the district court. 

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge

Appellate Case: 09-7097 Document: 01018399463 Date Filed: 04/09/2010 Page: 5