F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 29 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
BILAL RASHAD,
Plaintiff-Appellant, No. 00-6088
v. W.D. Okla.
PETE DOUGHTY, Medical Services (D.C. No. CV-99-232-C)
Administrator, Oklahoma Department
of Corrections; JUDY OWENS,
Administrator, Medical Services,
Lexington Correctional Complex,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , HENRY , 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This order and judgment is not binding precedent, except under the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)(2); 10th Cir.R. 34.1(G).
Therefore, appellant's request for oral argument is denied, and the case is ordered
submitted without oral argument.
Bilal Rashad, a prisoner in the custody of the Oklahoma Department of
Corrections, filed this pro se action against two corrections officials, alleging that
the Department failed to provide adequate treatment of his post-traumatic stress
disorder. According to Mr. Rashad, this failure to provide treatment violated the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213 and the
Eighth Amendment. He sought an injunction directing the defendants to provide
the requested treatment.
In a thorough and well-reasoned report and recommendation, the
magistrate judge concluded that Mr. Rashad’s complaint failed to state a claim
upon which relief could be granted. He further recommended that the dismissal
count as a “prior occasion” under 28 U.S.C. § 1915(g). The district court agreed
and dismissed Mr. Rashad’s complaint. Upon de novo review, see Perkins v.
Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir. 1999), we agree with
the magistrate judge and the district court.
With regard to Mr. Rashad’s ADA claim, it is clear that prisons are “public
entities” covered by Title II of the ADA. See Pennsylvania Dep’t of Corrections
v. Yeskey , 524 U.S. 206, 209 (1998). However, contrary to Mr. Rashad’s
assertions, the failure to provide medical treatment to a disabled prisoner, while
perhaps raising Eighth Amendment concerns in certain circumstances, does not
constitute an ADA violation. See Bryant v. Madigan , 84 F.3d 246, 249 (7th Cir.
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1996) (concluding that the ADA “would not be violated by a prison’s simply
failing to attend to the medical needs of its disabled prisoners” and that the
statute “does not create a remedy for medical malpractice”); McNally v. Prison
Health Servs. , 46 F. Supp.2d 49, 58 (D. Me.1999) (distinguishing between
“claims that the medical treatment received for a disability was inadequate from
claims that a prisoner has been denied access to services or programs because he
is disabled,” and concluding that only the latter class of claims states an ADA
violation). In contrast, the allegation that a disabled prisoner has been denied
services that have been provided to other prisoners may state an ADA claim.
See, e.g. , McNally , 46 F. Supp.2d at 58 (concluding that an HIV patient’s claim
of discriminatory denial of prescription services provided to general prison
population would state an ADA claim).
Here, as the magistrate judge noted, Mr. Rashad’s complaint alleges
inadequate treatment of his post-traumatic stress disorder but does not allege that
the defendant corrections officials discriminated against him on the basis of that
disorder. We therefore agree that Mr. Rashad has failed to state an ADA claim.
As to Mr. Rashad’s second claim, the magistrate judge properly noted that
the Eighth Amendment protects prisoners from officials’ deliberate indifference
to serious medical needs. See Estelle v. Gamble , 429 U.S. 97, 104 (1976).
Eighth Amendment claims have two elements: “an objective component
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requiring that the pain or deprivation be sufficiently serious; and a subjective
component requiring that the offending officials act with a sufficiently culpable
state of mind.” Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996)
(internal quotation marks omitted). The objective component requires an
“extreme deprivation" denying a “minimal civilized measure of life’s
necessities.” Hudson v. McMillian , 503 U.S. 1, 9 (1992) (internal quotation
marks omitted). As to the subjective component, in order to be held liable, the
defendant official must act with deliberate indifference to the prisoner’s health or
safety. See Farmer v. Brennan , 511 U.S. 825, 837 (1994).
“‘A complaint that a physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment.’” Green v. Branson , 108 F.3d 1296, 1303 (10th Cir.
1997) (quoting Estelle , 429 U.S. at 106)). However, delays in providing
treatment may violate the Eighth Amendment— “‘if there has been deliberate
indifference which results in substantial harm.’” Olson v. Stotts , 9 F.3d 1475,
1477 (10th Cir. 1993) (quoting Mendoza v. Lynaugh , 989 F.2d 191, 195 (5th Cir.
1993)). “Delays in providing medical care that courts have found to violate the
Eighth Amendment have frequently involved life-threatening situations and
instances in which it is apparent that delay would exacerbate the prisoner’s
medical problems.” Hunt. v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999).
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We agree with the magistrate judge’s assessment of Mr. Rashad’s Eighth
Amendment claim. Although he alleges that prison officials refused to grant his
request for treatment at a Veterans Administration facility, Mr. Rashad
acknowledges that mental health professionals are available to provide him with
treatment within the Department of Corrections. The fact that Mr. Rashad has
not been provided with treatment at the facility of his choice is insufficient to
state an Eighth Amendment claim.
In his appellate brief, Mr. Rashad contends that the magistrate judge and
the district court erred in failing to allow him to amend his complaint and to
conduct additional discovery. Although we construe pro se pleadings liberally,
see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), we need not allow
the amendment of pleadings and the conducting of discovery when the plaintiff
has failed to assert specific facts to support his claims. See Northington v.
Jackson , 973 F.2d 1518, 1520-21 (10th Cir. 1992). Here, there is no indication
that further proceedings would reveal valid claims against the defendants.
III. CONCLUSION
Accordingly, we AFFIRM the district court’s dismissal of Mr. Rashad’s
complaint. The district court’s dismissal counts as a “prior occasion” for the
counting purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County
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Detention Center Medical Facility, 175 F.3d 775, 780 (10th Cir. 1999).
Entered for the Court,
Robert H. Henry
United States Circuit Judge
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