Fairbanks v. Lampert , 645 F. App'x 626 ( 2016 )


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  •                                                                                 FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                           April 8, 2016
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    THOMAS FAIRBANKS,
    Plaintiff - Appellant,
    v.                                                         No. 15-8100
    (D.C. No. 2:14-CV-00244-SWS)
    ROBERT O. LAMPERT, Wyoming                                  (D. Wyo.)
    Department of Corrections Director;
    STEVE HARGETT, Wyoming Department
    of Corrections Medium Correctional
    Institution Warden; CORIZON HEALTH
    SERVICES, INC.; DR. KURT JOHNSON,
    Corizon Health Services, Inc. Regional
    Manager; DR. WHITE, Corizon Health
    Services, Inc. medical provider; NURSE
    PRACTITIONER HOLCUMB, Corizon
    Health Services, Inc. medical provider;
    NURSE LIGGETT, Corizon Health
    Services, Inc. medical provider; NURSE
    HANSON, Corizon Health Services, Inc.
    medical provider; NURSE BARRON,
    Corizon Health Services, Inc. medical
    provider,
    Defendants - Appellees.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist 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. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
    _________________________________
    Thomas Fairbanks, a state prisoner proceeding pro se, appeals from a district
    court order dismissing his 42 U.S.C. § 1983 claims against two Wyoming
    Department of Corrections officials (“state defendants”) and the healthcare provider
    for Wyoming prisoners, Corizon Health, Inc., along with several of its employees
    (“Corizon defendants”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
    In his complaint, Fairbanks alleges that the defendants acted with deliberate
    indifference to his medical needs in violation of the Eighth Amendment. He
    contends he did not receive adequate treatment for his elbow, back, and nerve pain
    despite numerous requests. Both groups of defendants filed motions to dismiss. The
    state defendants argued that Fairbanks did not identify any action that violated his
    rights. The Corizon defendants argued that Fairbanks’ allegations amounted to a
    disagreement with the treatment he was provided and thus were insufficient to state a
    claim for relief. The district court dismissed the complaint, finding that Fairbanks
    failed to state a claim for relief against any defendant. We agree.
    “We review de novo the dismissal of a complaint for failure to state a claim
    under Rule 12(b)(6).” Childs v. Miller, 
    713 F.3d 1262
    , 1264 (10th Cir. 2013). “To
    survive a motion to dismiss, a complaint must contain sufficient factual matter,
    accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
    Iqbal, 
    556 U.S. 662
    , 678 (2009) (quotation omitted). We construe liberally the
    allegations in a pro se complaint, but we will not supply additional factual allegations
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    or construct legal theories on behalf of a pro se party. Smith v. United States,
    
    561 F.3d 1090
    , 1096 (10th Cir. 2009).
    Although Fairbanks cites the Fifth, Eighth, and Fourteenth Amendments as the
    bases for his claims, his allegations of inadequate medical service are most suitably
    analyzed under the Eighth Amendment, which prohibits prison officials from acting
    with “deliberate indifference to serious medical needs of prisoners.” Estelle v.
    Gamble, 
    429 U.S. 97
    , 104 (1976). “The test for deliberate indifference is both
    objective and subjective.” Martinez v. Beggs, 
    563 F.3d 1082
    , 1088 (10th Cir. 2009).
    The subjective prong requires a plaintiff to “show that the defendants knew he faced
    a substantial risk of harm and disregarded that risk, by failing to take reasonable
    measures to abate it.” 
    Id. at 1089.
    However, an inadvertent failure to provide
    adequate medical care—even if it rises to the level of medical malpractice—does not
    necessarily amount to a constitutional violation. 
    Estelle, 429 U.S. at 105-06
    ;
    
    Martinez, 563 F.3d at 1088
    . Because we conclude infra that Fairbanks has failed to
    satisfy the subjective prong, we do not consider whether he has satisfied the objective
    prong.
    Fairbanks does not allege facts sufficient to demonstrate that any defendant
    knowingly disregarded a substantial risk of harm. Fairbanks’ complaint does not
    make any factual allegations against one state defendant. As to the other, the
    complaint alleges he was aware of the prison’s poor quality medical treatment merely
    because Fairbanks tried to speak to him about it, but prison officials prevented
    Fairbanks from doing so. Fairbanks thus failed to allege that the state defendants
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    were aware of his complaints of pain or of any risk therefrom, much less that they
    demonstrated deliberate indifference to that risk.
    As to the Corizon defendants, the complaint alleges that in response to
    Fairbanks’ complaints about pain and other symptoms, he was seen by doctors and
    nurses on several occasions. X-rays were taken of his back and a number of
    treatment options were pursued, including various pain medications, an elbow brace,
    stretching exercises, and treatment for a vitamin D deficiency. Although Fairbanks
    alleged that these efforts were unsuccessful and that he continued to have
    excruciating pain, his allegations do not show that the Corizon defendants were
    indifferent to his medical needs. Rather, the complaint shows that they took a variety
    of measures to address his complaints. Even if he would have liked different pain
    medication, an MRI, and a job change, Fairbanks makes no showing that the
    measures pursued were unreasonable. Mere disagreement about the type of medical
    care provided does not amount to a violation of the Eighth Amendment. Callahan v.
    Poppell, 
    471 F.3d 1155
    , 1160 (10th Cir. 2006) (prisoners do not have an Eighth
    Amendment right to a particular course of treatment).
    Fairbanks also seeks leave to proceed in forma pauperis (“IFP”). To qualify
    for IFP status, an appellant “must show a financial inability to pay the required filing
    fees and the existence of a reasoned, nonfrivolous argument on the law and facts in
    support of the issues raised on appeal.” DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505
    (10th Cir. 1991). We conclude that Fairbanks’ argument is wholly frivolous. We
    thus deny IFP status.
    4
    The judgment of the district court is AFFIRMED. Fairbanks’ motion to
    proceed IFP is DENIED, and he has now accumulated two “strikes” under 28 U.S.C.
    § 1915(g).
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
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