UNITED STATES COURT OF APPEALS
Filed 6/25/96
TENTH CIRCUIT
GARY R. GARGANI,
Plaintiff-Appellant,
v.
No. 95-1488
KATHLEEN HAWK, Director, (D.C. No. 95-S-2595)
BOP; J.W. BOOKER, Warden; (Dist. Colo.)
DANIEL BURNETT, HSA
Administrator; J. BLANK,
Correctional Counselor,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
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.
*
This order and judgment is not binding precedent, except under the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 10th Cir.
R. 36.3.
34.1.9. The cause is therefore ordered submitted without oral argument.
Mr. Gary R. Gargani filed this pro se civil rights action alleging defendants
Kathleen M. Hawk, J.W. Booker, Daniel Burnett, and J. Blank, all federal prison
officials, were deliberately indifferent to his serious medical needs in violation of
the Eighth Amendment. The district court dismissed Mr. Gargani’s complaint
pursuant to 28 U.S.C. § 1915 (d) because he failed to allege deliberate
indifference on the part of defendants. The dismissal crossed in the mail with a
Supplement to the Original Complaint, which the district court declined to
consider. Mr. Gargani appeals, 1 and we affirm.
Mr. Gargani has undergone numerous major operations on his legs while in
federal custody and currently suffers from a bone infection and deterioration of
bone mass. He alleged that in addition to medication, he was prescribed a special
lift shoe and hinged brace which defendants failed to provide.
As Mr. Gargani well knows, see Gargani v. Reno, 9 F.3d 1551, 1993 WL
460660 (9th Cir. 1993), the Eighth Amendment prohibits the deliberate
indifference to a prisoner’s serious medical needs, Estelle v. Gamble, 429 U.S. 97,
104-05 (1976). Intentional interference with prescribed treatment may constitute
deliberate indifference. Id.; Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir.
1992). However, “a complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim of medical
1
The district court granted informa pauperis status to Mr. Gargani
for appeal purposes.
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mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106. A
difference of opinion with respect to medical treatment does not support a claim
of cruel and unusual punishment. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th
Cir. 1993). Moreover, a delay in receiving prescribed medical treatment
constitutes a violation of the Eighth Amendment only “if there has been deliberate
indifference which results in substantial harm.” Id. (citation omitted). Deliberate
indifference requires “a higher degree of fault than negligence, or even gross
negligence.” Berry v. City of Muskogee, 900 F.2d 1489, 1495 (10th Cir. 1990).
Given Mr. Gargani’s prior prison litigation involving his medical condition, his
failure to allege properly an Eighth Amendment violation in his initial complaint
is inexcusable. Even considering his supplemental complaint, however, we are
not persuaded he has alleged a constitutional violation.
Relying on a personal doctor, Mr. Gargani contends that the denial of the
leg brace constitutes an Eighth Amendment violation. The prison doctor
determined, however, that a leg brace would not benefit Mr. Gargani. Mr. Gargani
simply differs with that opinion. Mr. Gargani also contends that the delay in
providing his lift shoe constitutes an Eighth Amendment violation. Mr. Gargani
was evaluated by the prison doctor and was offered a knee sleeve, which he
refused. He has been informed on at least two occasions that a lift shoe was
ordered. While Mr. Gargani alleges serious medical injuries, his allegations of
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delay do not rise to the level of an Eighth Amendment violation. 2
We AFFIRM the judgment of the district court. The mandate shall issue
forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
2
We decline to consider issues Mr. Gargani raises for the first time
on appeal. See Oyler v. Allenbrand, 23 F.3d 292, 299 n.8 (10th Cir. 1994).
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