* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 23 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RICHARD C. WHITE,

Petitioner-Appellant,

v.

STATE OF COLORADO; CHERYL

SMITH, Medical Supervisor; MARK

MCKINNA, Warden; ORVILLE

NEUFELD, Medical Supervisor;

WILLIAM AUTREY, M.D., Medical

Supervisor; JACK DIAMOND, M.D.,

Psychiatrist; DEPARTMENT OF

CORRECTIONS; GALE NORTON,

Attorney General for the State of

Colorado; WELLINGTON WEBB;

S. SUNDELL; DR. L. SANDER, Four

John, Jane Does, Medical Staff,

Denver County Jail Medical

Department, City of Denver,

Respondents-Appellees.

No. 97-1288

(D.C. No. 95-D-1500)

(D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.
1 Respondents assert that we lack jurisdiction because petitioner’s notice of

appeal is untimely. That contention is incorrect. The district court entered its

Fed. R. Civ. P. 58 judgment in this case on June 30, 1997. Petitioner filed a

motion pursuant to Fed. R. Civ. P. 60 on July 7, 1997. The district court entered

its order denying his Rule 60 motion on August 4, 1997. Petitioner’s notice of

appeal, filed on August 12, 1997, was therefore timely, see Fed. R. App. P.

4(a)(4)(F), and we have jurisdiction.

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After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Petitioner-Appellant Richard C. White appeals from the district court’s

order granting summary judgment to respondents-appellees on his petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm. 1

In his petition, petitioner complains that respondents have violated his

Eighth Amendment rights by failing to provide him with adequate medical care. 

Petitioner’s complaint targets the conditions of his confinement, not the fact of

that confinement or its duration. It is therefore properly viewed as a complaint

pursuant to 42 U.S.C. § 1983, rather than a petition for writ of habeas corpus. 

See Preiser v. Rodriguez , 411 U.S. 475, 499 (1973) (“[A] § 1983 action is a
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proper remedy for a state prisoner who is making a constitutional challenge to the

conditions of his prison life, but not to the fact or length of his custody.”).

We review summary judgment rulings de novo, applying the same

standard as the district court. Summary judgment is proper when

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). When a moving party makes a properly supported summary

judgment motion, the nonmoving party has the burden of showing a

genuine issue for trial, by any of the kinds of evidentiary materials

listed in Rule 56(c), except the mere pleadings themselves.

Pietrowski v. Town of Dibble , 134 F.3d 1006, 1008 (10th Cir. 1998) (further

citations and quotations omitted).

A prisoner may establish an Eighth Amendment violation by showing

“deliberate indifference to [his] serious medical needs” on the part of his jailors. 

Estelle v. Gamble , 429 U.S. 97, 104 (1976). Deliberate indifference is more than

mere negligence; a negligent failure to provide adequate medical care, even one

constituting medical malpractice, does not rise to the level of a constitutional

violation. See id. at 105-06. 

Petitioner suffers from a broad range of physical complaints. He has been

seen in the prison infirmary a very considerable number of times over a three-year

period for these complaints. Having carefully reviewed the summary judgment

materials pertaining to petitioner’s medical problems and the care he has received

for them, we agree with the district court that petitioner has failed to show that
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respondents have been deliberately indifferent to his serious medical needs. 

Petitioner’s disagreements with the prison medical staff about his care do not

establish deliberate indifference. See Ramos v. Lamm , 639 F.2d 559, 575 (10th

Cir. 1980). Nor has he shown that any delays he experienced in receiving care

were the result of deliberate indifference which resulted in “substantial harm” to

him. See Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993). Accordingly, we

affirm the district court’s order of summary judgment on the merits. 

We further reject petitioner’s other challenges to the district court’s

disposition of this case. He contends that the district court should have granted

his motion for default judgment. This issue is without merit. Respondents were

not served with process in this action until September 21, 1995, when they

executed and filed a waiver and acceptance of service. Four days later,

respondents filed their motion to dismiss and/or for summary judgment. They are

not in default. See Fed. R. Civ. P. 12(a)(1)(B); (a)(4); (b).

Petitioner asserts that respondents violated 5 U.S.C. § 552a by submitting

his medical records in support of their summary judgment motion without his

consent. His reliance on that statute is misplaced; it applies only to federal

agencies.

Petitioner argues that the district court should have considered his claims

against employees of the Denver County Jail who allegedly beat him during his
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stay there in October 1995. Petitioner sought to amend his complaint to add

claims against these defendants. The district court acted within its discretion in

denying leave to amend; petitioner’s claims against these potential defendants

were entirely separate and distinct from the subject matter of this complaint. See

Hom v. Squire , 81 F.3d 969, 973 (10th Cir. 1996) (stating abuse of discretion

standard).

Petitioner further contends that the district court erred in dismissing his

claim against the State of Colorado for failing to hear his habeas corpus petition. 

The State of Colorado is not a “person” subject to suit pursuant to § 1983. See

Will v. Michigan Dep’t of State Police , 491 U.S. 58, 71 (1989). Even if we were

to construe this claim as arising under the habeas statute, see 28 U.S. § 2254, as

petitioner requests, he fails to show that he has exhausted his state remedies

concerning this claim in a manner sufficient to obtain habeas corpus relief.

The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Circuit Judge