F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 23 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD C. WHITE,
Petitioner-Appellant,
v. No. 97-1288
(D.C. No. 95-D-1500)
STATE OF COLORADO; CHERYL (D. Colo.)
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.
ORDER AND JUDGMENT *
Before TACHA , LOGAN , and LUCERO , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
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
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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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
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White v. State of Colorado
Combined Opinion