Ronald Brewer v. Leonard Graves , 152 F. App'x 548 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3562
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Ronald W. Brewer, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Leonard Graves; Caldwell; Magat; *
Sandra Caldwell; Kenneth Caldwell; * [UNPUBLISHED]
Alfonso F. Magat, *
*
Appellees. *
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Submitted: October 4, 2005
Filed: October 10, 2005
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Before ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Iowa inmate Ronald Brewer brought a 42 U.S.C. § 1983 action for damages
against Warden Leonard Graves, Dr. Alfonso Magat, and Dr. Kenneth Caldwell (for
whom Sandra Caldwell was substituted), claiming Eighth Amendment violations
related to a serious eye injury he sustained on his prison job. The district court1
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The Honorable Thomas J. Shields, United States Magistrate Judge for the
Southern District of Iowa, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
granted summary judgment to defendants, and Mr. Brewer appeals. For the following
reasons, we conclude that summary judgment was proper.
The record does not show that the medical care Dr. Magat and Dr. Caldwell
provided Mr. Brewer was “‘so inappropriate as to evidence intentional
maltreatment.’” See Jolly v. Knudsen, 205 F.3d 1094, 1097 (8th Cir. 2000) (quoted
case omitted). It is undisputed that he received immediate care for his injury,
including an antibiotic ophthalmologic ointment, and ultimately received more
extensive treatment, including a cornea transplant, at the University of Iowa Hospitals
and Clinics (UIHC). That Mr. Brewer and his medical expert, Dr. Silberman,
disagree with the course and timing of this treatment does not create a genuine issue
of fact as to whether the doctors were deliberately indifferent to his serious medical
needs. See Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (inmates have
no constitutional right to particular course of treatment, and doctors are free to use
their own medical judgment; mere negligence or medical malpractice is insufficient
to rise to constitutional violation).
The doctors’ refusal to refer Mr. Brewer to UIHC immediately following his
injury does not create a genuine issue for trial, either. Mr. Brewer did not identify
any policy requiring such a transfer; and, in any event, the violation of a prison policy
does not in itself create section 1983 liability, see Gardner v. Howard, 109 F.3d 427,
430 (8th Cir. 1997). Nor was there delay in his treatment rising to the level of an
Eighth Amendment violation. Compare Hartsfield v. Colburn, 371 F.3d 454, 456-57
(8th Cir. 2004) (finding inmate created question of fact regarding prison officials’
deliberate indifference where evidence showed inmate complained of tooth pain on
October 20, but received no care until December 5), with Logan v. Clarke, 119 F.3d
647, 650 (8th Cir. 1997) (“Although the prison doctors may not have proceeded from
their initial diagnosis to their referral to a specialist as quickly as hindsight perhaps
allows us to think they should have, their actions were not deliberately indifferent.”).
Additionally, his expert’s opinion that earlier diagnosis and treatment “may have
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made a significant difference” does not constitute the requisite “verifying medical
evidence” showing the delay in referral caused his subsequent loss of vision. See
Dulany, 132 F.3d at 1241, 1243 (existence of alternate course of treatment that “may
or may not” have been successful did not raise inference of deliberate indifference).
As to Warden Graves, he cannot be liable based solely on his responsibility to
supervise the prison’s operation. See Keeper v. King, 130 F.3d 1309, 1314 (8th Cir.
1997). The absence of safety glasses at Mr. Brewer’s worksite constitutes at most
negligence, which cannot support a finding of deliberate indifference. See Stephens
v. Johnson, 83 F.3d 198, 200-01 (8th Cir. 1996) (failure to provide inmates with
steel-toed boots, protective eyewear, and other safety clothing at most established
negligence, rather than constitutional violation).
Accordingly, we affirm the judgment of the district court.
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