                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         SEP 24 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    KEVIN RUTHERFORD (and in
    behalf of fellow prisoners within
    DOC, as class action),

                Plaintiff-Appellant,

    v.                                                 No. 02-1279
                                               (D.C. No. 00-RB-2444 (PAC))
    MEDICAL DEPARTMENT OF                                (D. Colo.)
    DEPARTMENT OF CORRECTIONS;
    ROBERT FLORES; DR. MCGARRY;
    DR. CABILING; WARDEN SOARES;
    WARDEN NEET; C/O EGLEY; P.A.
    LAWERANCE; AVCF MED. STAFF;
    DR. WERMERS; TRANSPORT OF
    CDOC; DOLORES MONTOYA;
    MED. STAFF OF FCF; OFFENDER
    SERVICES, with MED. STAFF OF
    FMCC,

                Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before BRISCOE , PORFILIO , and ANDERSON , 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      This order and judgment is not binding precedent, except under the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). The case is

therefore ordered submitted without oral argument.

      Kevin Rutherford, a state prisoner appearing   pro se , appeals from the

district court’s dismissal of his Eighth Amendment claims brought pursuant to

42 U.S.C. § 1983. After defendants moved for summary judgment, the claims

were dismissed on several grounds, including failure to make installment

payments toward filing fees. Our jurisdiction arises under 28 U.S.C. § 1291.

We conclude that Mr. Rutherford sufficiently complied with the district court’s

order to show cause and demonstrated that he has no assets with which to pay the

fee. We also conclude that the district court improperly granted summary

judgment to certain defendants and erroneously dismissed certain defendants

under Rule 12(b)(6). We therefore reverse in part and affirm in part.


                       I. Factual and procedural background

      After two years of complaining about severe back pain, Mr. Rutherford

underwent surgery in January 2001 for several herniated disks that had caused

nerve damage. He was returned to prison to recuperate. His claims of deliberate

indifference to serious medical needs are primarily based on allegations

that defendants delayed and failed to afford him proper medical care before

                                          -2-
January 2001, refused to provide him with prescribed and appropriate

pre- and post-surgical pain medications and mattresses, and refused or failed to

properly administer prescribed medication for his Hepatitis C. He also alleges

that certain defendants discontinued prescribed pain medications and reclassified

and transferred him to facilities distant from his surgeon in retaliation for his

complaints about inadequate or deliberately-indifferent medical care.

      Mr. Rutherford filed his original complaint on December 5, 2000.

On December 13, 2000, the district court granted Mr. Rutherford’s request to

proceed in forma pauperis pursuant to 28 U.S.C. § 1915, ordering him to make

monthly payments of twenty percent of the preceding month’s income credited to

his trust fund account or to show cause each month why he has no assets and no

means by which to make the monthly payment. R. doc. 6 at 2. Mr. Rutherford

subsequently submitted prison account statements demonstrating that he earned

approximately $6.16 per month and that his prison account had a negative

balance. Accordingly, on January 25, 2001, the district court entered an order

allowing Mr. Rutherford to proceed without paying the initial partial filing fee

and reminded him that he remained obligated to pay the full filing fee through

monthly installments as funds became available.

      In response to subsequent orders to pay monthly installments or to show

cause, Mr. Rutherford submitted account statements demonstrating a negative


                                          -3-
balance of -$34.46 for March 2001, and income of $6.16 and an account balance

of -$70.28 for May 2001. Debits to his account primarily consisted of medical,

postage, mandatory restitution, and xerox charges. R. doc. 26, ex. 1;      id. doc. 38,

ex. 17. His balance on July 7, 2001 was -$115.16.      Id. doc. 48 at 2.

      In August 2001, defendants Dr. Cabiling, Dr. McGarry, and Robert Flores

moved for summary judgment, and the remaining defendants moved for dismissal

based on sovereign and qualified immunity and failure to state a claim. In

support, Dr. Cabiling, Dr. McGarry, and Robert Flores submitted affidavits.

Because he had not been provided with a full copy of his medical records, Mr.

Rutherford requested discovery and an extension of time in which to respond,

which the court granted.

      The court again entered an order on September 24, 2001, directing

Mr. Rutherford to make a monthly filing fee payment or to show cause. In

response, Mr. Rutherford submitted another account statement demonstrating that

his balance on October 11, 2001 was -$115.91.       Id. doc. 71 at 4. The court

entered a similar order on February 12, 2002. Mr. Rutherford answered on

February 21, stating that he had pneumonia and was unable to immediately

respond to the court’s orders. On March 4, he filed his response, further

explaining that he had been transferred to another facility since the February 12

order, he had been segregated without access to legal materials, he had been sick,


                                           -4-
and that he had requested an account statement. He stated that he would try to

find some way to send a payment and asked if the court could order the prison to

debit his prison account for the outstanding balance so he could pay it off in

prison. Id. doc. 108 at 3. On March 8, he filed another document stating he had

no funds and explaining that the state automatically deducted seventy percent of

his earnings for debt and restitution, leaving him virtually no available funds.

Id. doc. 110 at 3. On March 22, he submitted another responsive pleading and

an account statement showing that he had a current balance of -$46.80 and no

available funds.   Id. doc. 121.

       In her April 16, 2002, decision, the magistrate judge recommended that all

claims against all defendants be dismissed except for two: Mr. Rutherford’s

claim that individual John Doe medical staff at Fremont Correctional Facility

(“FCF”) unlawfully denied his hepatitis treatments and his medically-prescribed

extra mattress. R. doc. 132 at 19-20. The court denied Mr. Rutherford’s motion

seeking a forty-day extension to respond to the magistrate judge’s

recommendations.

       In a subsequent decision filed April 23, 2002, the magistrate judge

recommended dismissing the two remaining claims for Mr. Rutherford’s failure to

pay the monthly installments toward his filing fee. The magistrate judge stated

that, although his account statement showed a deficit and he claimed (1) he was


                                         -5-
indigent, (2) he earned only .28 per day, and (3) his $3.40 canteen expenditure

was for stamps, no records supported his expenditure claim and he therefore had

“failed to show that he is indigent and unable to make his monthly payment

toward the filing fee.”   Id. doc. 134 at 3.

       Mr. Rutherford objected to the recommendation that his case be dismissed

for failure to pay filing fees and submitted a receipt proving that his $3.40

canteen expenditure had indeed been for stamps. He also objected to the

dismissal of certain defendants and claims. The district court adopted the

April 16th and April 23rd recommendations, granted summary judgment and

dismissal in favor of certain defendants, and dismissed the Eighth Amendment

claims against the FCF medical staff for failure to pay filing fees.   Id. doc. 145 at

4-5. In his motion for reconsideration, Mr. Rutherford pointed out that, under §

1915(b)(2), it was the facility’s duty to forward payments for filing fees only

whenever his account balance exceeded $10.00. He submitted certified account

statements showing that he was still $51.95 in debt and had no available funds.

R. doc. 147 at 5. The court denied reconsideration. This appeal followed.




                                               -6-
                         II. Dismissal for failure to pay filing fees

       The Federal Rules of Civil Procedure allow a district court to dismiss an

action for failure to comply with a court order.     See Fed. R. Civ. P. 41(b).

Accordingly, we review for abuse of discretion the district court’s dismissal of

Mr. Rutherford’s suit.     See Mobley v. McCormick , 40 F.3d 337, 340 & n.1

(10th Cir. 1994).

       As outlined above, the record demonstrates that Mr. Rutherford complied

with the court’s February 12, 2002, order to show cause why he could not pay

installment fees by submitting his inmate account and an explanation of

mandatory deductions and voluntary expenditures. The account reflects no

positive account balance. Under these circumstances, no monthly payment is due

and the case could not be dismissed for failure to pay the fees.        See § 1915(b)(2)

(providing that “[t]he agency having custody of the prisoner shall forward

payments from the prisoner’s account to the clerk of the court each time the

amount in the account exceeds $10”; § 1915(b)(4) (“In no event shall a prisoner

be prohibited from bringing a civil action . . . for the reason that the prisoner has

no assets and no means by which to pay the initial partial filing fee”);      Shabazz v.

Parsons , 127 F.3d 1246, 1248 (10th Cir. 1997) (stating that payment of initial

partial fee is made only when funds exist and that subsequent monthly payments

are “extracted only in months when the prisoner’s trust fund account exceeds

                                             -7-
ten dollars,” and noting that, under § 1915(b)(4), a prisoner cannot be precluded

from going forward with his cause of action when he has no assets or means to

make payments) (quotation omitted). We therefore hold that the district court

abused its discretion by dismissing the two Eighth Amendment claims against

medical staff for defendant’s failure to pay the filing fee.


                  III. Summary judgment in favor of Dr. Cabiling

      A. Delay in treatment for herniated discs. Mr. Rutherford had back

surgery in 1994 for disc herniation. The record shows that he complained of

severe back pain in 1999.   See R. doc. 41, ex. 19–25. Dr. Cabiling was the

physician in charge of Mr. Rutherford’s medical care while he was incarcerated at

both the Four Mile Correctional Center (FMCC) and FCF, which are both located

in Canon City. The district court found as undisputed the facts that Dr. Cabiling:

(1) began treating Mr. Rutherford for his back pain in May 1999; (2) ordered X-

rays and a muscle relaxant and imposed lifting and work restrictions; (3) ordered

EMG/NCS (electromyography) testing, which was performed July 16, 1999, and

which was positive for lumbar disc/nerve problems; and (4) authorized a

neurosurgeon consultation in July 1999. R. doc. 132 at 4-5. It is also undisputed

that (5) Mr. Rutherford did not see Dr. Lilly, the neurosurgeon, until October 1,

1999; (6) Dr. Lilly ordered an MRI (which was not done until February 9, 2000--

four months later) and an egg-crate mattress and pain medications; (7) the MRI

                                          -8-
showed nerve damage and pressure on both sides of Mr. Rutherford’s sciatic

nerves, requiring surgery at discs L3, L4, and L5; (8) no follow-up appointment

with Dr. Lilly was scheduled until September 8, 2000 (seven months later), and

(9) surgery was not performed until January 17, 2001, almost a year and one-half

after Dr. Cabiling knew that objective tests supported Mr. Rutherford’s

complaints of severe pain and almost a year after serious nerve impairment was

positively diagnosed and surgery was recommended.          See id. at 5.

       Mr. Rutherford claims that Dr. Cabiling and his medical staff at FMCC

allowed his authorization for a specialist consultation to expire once before he

was first seen by Dr. Lilly and that he was forced to suffer needlessly because of

Dr. Cabiling’s deliberate indifference in failing to timely obtain surgical

treatment.

       The district court determined that Mr. Rutherford’s back condition

constituted a serious medical need, and that finding has not been appealed from.

Id. at 11. The court also acknowledged that Mr. Rutherford blamed Dr. Cabiling

for unwarranted delay in obtaining treatment and withholding medications, which

caused him to suffer further damage and “years of pain.”        Id. But, in the district

court’s opinion, Dr. Cabiling “treated and monitored plaintiff’s back condition in

a timely manner. To the extent there was any delay in plaintiff’s back surgery,

the evidence does not show that the delay is attributable to Dr. [Cabiling].”      Id.


                                            -9-
This factual finding and legal conclusion disregard established Tenth Circuit law

concerning both summary judgment standards and the important gatekeeping role

that prison physicians assume in affording medical care to inmates.   See Sealock

v. Colorado , 218 F.3d 1205 (10th Cir. 2000).

      Summary judgment is appropriate if the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any
      material fact and that the moving party is entitled to a judgment as
      a matter of law. We review a grant of summary judgment       de novo,
      applying the same standard as the district court. We examine the
      record to determine whether any genuine issue of material fact was in
      dispute; if not, we determine whether the substantive law was applied
      correctly, and in so doing we examine the factual record and
      reasonable inferences therefrom in the light most favorable to the
      party opposing the motion.

Id. at 1209. “It is not the task of a court considering summary judgment to weigh

the evidence.”   Id. at 1210 n.4. The proper analysis of deliberate indifference as

a gatekeeper is set forth as follows:

      A prison official’s deliberate indifference to an inmate’s serious
      medical needs violates the Eighth Amendment. Deliberate
      indifference involves both an objective and a subjective component.
      The objective component is met if the deprivation is sufficiently
      serious. A medical need is sufficiently serious if it is one that has
      been diagnosed by a physician as mandating treatment or one that is
      so obvious that even a lay person would easily recognize the
      necessity for a doctor’s attention. The subjective component is met
      if a prison official knows of and disregards an excessive risk to
      inmate health or safety.

      ....



                                          -10-
      Delay in medical care only constitutes an Eighth Amendment
      violation where the plaintiff can show that the delay resulted in
      substantial harm . . . [as when] there is factual evidence from which
      a jury could conclude that the delay occasioned by his inaction
      unnecessarily prolonged appellant’s pain and suffering.

      ....

      Our cases recognize two types of conduct constituting deliberate
      indifference. First, a medical professional may fail to treat a serious
      medical condition properly. Where this sort of conduct is alleged,
      the medical professional has available the defense that he was merely
      negligent in diagnosing or treating the medical condition, rather than
      deliberately indifferent. The second type of deliberate indifference
      occurs when prison officials prevent an inmate from receiving
      treatment or deny him access to medical personnel capable of
      evaluating the need for treatment. Ordinarily, a medical professional
      will not be liable for this second kind of deliberate indifference,
      because he is the person who provides the treatment. If, however,
      the medical professional knows that his role in a particular medical
      emergency is solely to serve as a gatekeeper for other medical
      personnel capable of treating the condition, and if he delays or
      refuses to fulfill that gatekeeper role due to deliberate indifference, it
      stands to reason that he also may be liable for deliberate indifference
      from denying access to medical care.

Id. at 1209-11 & n.5 (quotations and citations omitted). Whether, as

Mr. Rutherford claims, Dr. Cabiling and his staff at FMCC were deliberately

indifferent to the continuing nerve damage and severe pain caused by herniated

discs by reason of their alleged inaction (allowing authorization for consultations

to expire and permitting delays in arranging for consultations, MRIs, follow-up

appointments, and scheduling and transporting Mr. Rutherford for surgery) is in

dispute. A single affidavit making a conclusory statement that “Mr. Rutherford


                                         -11-
was always provided with appropriate medical treatment,” R. doc. 55, attach. 1

at 2, unsupported by medical records, does not satisfy the summary judgment

requirement that Dr. Cabiling present evidence demonstrating no genuine issues

of material fact exist concerning Mr. Rutherford’s claims. A year and one-half

delay in obtaining surgical relief after diagnosis of nerve damage could be

determined to be unreasonable and indicative of deliberate indifference.

       B. Retaliation. Mr. Rutherford submitted evidence indicating that

Dr. Cabiling discontinued his prescribed Vicodin on September 15, 1999, the

same day Mr. Rutherford complained about not properly receiving prescribed

interferon treatments and after Dr. Cabiling had discovered that FMCC medical

staff had indeed missed scheduled treatments on at least two occasions. R. doc.

106, ex. L1, L2. It is undisputed that Dr. Cabiling knew on September 15, 1999,

of the objective EMG findings of nerve involvement and that Mr. Rutherford

continued to complain of severe pain. In his response to the motion for summary

judgment, Mr. Rutherford asserted that Dr. Cabiling’s proffered explanations for

discontinuing the Vicodin were pretextual and unsupported by the medical record.

The district court held that Mr. Rutherford did not “aver facts sufficient to

show that Dr. Cabiling discontinued the Vicodin in retaliation for plaintiff’s

complaints that other medical staff members had failed to give him scheduled

interferon treatments.” R. doc. 132 at 14. We disagree. Although we express no


                                         -12-
opinion on the merits of his claim, at this stage of the litigation Mr. Rutherford

has sufficiently stated a claim for retaliation.

                    IV. Dismissal of other defendants and other claims

      “Dismissal of a pro se complaint for failure to state a claim is proper only

where it is obvious that the plaintiff cannot prevail on the facts he has alleged and

it would be futile to give him an opportunity to amend. We must liberally

construe the allegations of a pro se complaint[,] . . . . [and] in deciding a motion

to dismiss pursuant to Rule 12(b)(6), a court may look both to the complaint itself

and to any documents attached as exhibits to the complaint.”    Oxendine v. Kaplan ,

241 F.3d 1272, 1275 (10th Cir. 2001) (quotations and citations omitted). We

review the district court’s decision to dismiss defendants for failure to state a

claim de novo. Id. Further, we must consider all factual allegations contained in

Mr. Rutherford’s complaint as true, construing those allegations in the light most

favorable to him.     Id. at 1277.

      In his original complaint, Mr. Rutherford alleged that John Doe members of

the FCF medical staff allowed his authorization number to see a specialist expire;

that the FCF members then ignored or denied his specialist’s orders, including his

order to provide a second mattress, and denied him effective pain medication,

“leaving [him] in constant pain throughout the day.” R. Doc. 3 at 7. He also

alleged that between 1999 and 2000, members of the medical staff responded to


                                           -13-
his claims of extreme back pain by sending him to physical therapy without

examination or tests, leading to more nerve damage and pain.        Id. at 10. Mr.

Rutherford was incarcerated at FMCC during 1999.

      In Claim IV, he alleged that CDOC’s “medical departments” violated the

Eighth Amendment by not properly responding to his need for “liver treatment”

for Hepatitis C. In his “supporting facts,” he claimed that a one-year interferon

treatment program for injections administered three times per week was

prescribed. He began this program in 1998 and received injections for 4 months

at FCF until he was transferred to FMCC, where FMCC medical staff allegedly

discontinued the treatment and required him to “re-establish” his need for the

treatment by another doctor. He states that, after a doctor saw him, a new one-

year treatment plan was scheduled and begun in May 1999. He states that, despite

his written requests, nurses at FMCC refused to allow him to review his blood-

test results showing his progress. R. Doc. 3 at 12. He claims that, after a year of

treatment, Dr. Bloor (a hematologist) prescribed another 6 months of interferon

combined with Ribavirin because his liver was not responding. The FMCC staff

began his treatment again. In June 2000, he alleges he was transferred back to

FCF, but while in the segregation unit, interferon treatment was denied.      Id. at 14.

He was reclassified in March 2001 and sent to the Arkansas Valley Correctional

Facility (AVCF).


                                           -14-
      Mr. Rutherford moved for leave to amend his complaint on April 20, 2001.

In his motion to amend, he specifically alleged claims against members of the

medical staff at AVCF, stating,   inter alia , that John Doe medical staff at this

facility had confiscated his medically-assigned extra mattress upon his transfer

there, refused to replace it, and refused to respond to his requests for medical

treatment.

      He also included additional post-surgical claims against the staff at FCF,

stating that the staff there refused to give him medical attention, had taken his

cane and discontinued his pain medication, and that medical staff member

“Duane” threatened him with segregation if he did not leave the medical unit

without having received care. R. Doc. 29 at 1-3.

      The court granted his motion to amend, and on July 2, 2001, Mr.

Rutherford tried to amend his complaint by filing a motion asking the court to

amend his previous pleadings to add as defendants “Dr. Cabiling’s staff” at

FMCC and the medical staffs at AVCF and FCF. He included a request for

damages for, inter alia , “retaliation by Cabling’s [sic] staff;” for needless

suffering during the time period he was incarcerated at the three facilities; for

failure to provide proper “liver treatment;” for “threats by medical staff;” for

“retaliation by AVCF staff,” and for “medical’s failure to treat for assault.” R.

Doc. 44.


                                          -15-
      On July 30, 2001, Mr. Rutherford filed a document “seeking to bring to life

further information in support of these claims” that contained a hand-written but

un-notarized “affidavit.” R. Doc. 52. In this document, which we liberally

construe as a motion to supplement his complaint, he more specifically set forth

his deliberate indifference and retaliation claims against the medical staffs at

FMCC, FCF, and AVCF and alleged that their actions and inaction continued to

cause him to suffer extreme back and leg pain.    Id.

      He alleged that medical staff at FMCC ignored his pleas for medical

examination and treatment and refused to perform x-rays or MRIs until 1999, and

recommended exercises and physical therapy that made his back condition worse.

He alleged that the staff at FCF failed to administer prescribed medications after

his back surgery, discontinued his pain medications, and confiscated his cane. He

alleged that the FCF medical staff refused to treat him after a guard allegedly

attacked him soon after his surgery, and refused to schedule a follow-up

appointment with his surgeon. Upon his transfer to AVCF, he alleged that the

staff confiscated his extra mattress, that the medical staff refused to issue another

one despite his medical orders, and that the staff had refused to schedule follow-

up MRIs, appointments with his surgeon, or to see a doctor.    Id.

      On October 5, 2001, in response to defendants’ motions for summary

judgment and to dismiss the AVCF and FMCC medical staff members for failure


                                          -16-
to state a claim, the magistrate judge made several rulings. She stated it was “not

clear” whether Mr. Rutherford intended for his amended complaint to include the

claims identified in his April 20 motion. R. Doc. 69 at 4. The magistrate judge

did not mention the July 30 affidavit supplementing his claims against the various

medical staff members. The magistrate judge ordered Mr. Rutherford to file an

amended complaint setting forth all defendants and containing factual allegations

to support asserted claims for relief by November 9, 2001.   Id.

      Mr. Rutherford requested an enlargement of time in which to address all of

the magistrate judge’s October 5 rulings, explaining that he still had not been

given a complete copy of his medical file, had limited access to the law library,

and had no legal assistance. R. Doc. 79. The court granted a stay of proceedings

pending Mr. Rutherford being given a copy of his medical records. Thereafter,

Mr. Rutherford complained that his copy of the medical file was not complete and

that prison officials confiscated it when they transferred him to yet another

facility in February 2002.

      In her April 16, 2002, recommendation to dismiss the AVCF and FMCC

defendants for failure to state a claim, the magistrate judge noted that Mr.

Rutherford still had not complied with the October 5 order to file an amended

complaint. Mr. Rutherford objected and requested an enlargement of time in




                                          -17-
which to respond to the magistrate judge’s recommendations,       see R. Doc. 136, but

the motion was denied.

          In his objections, Mr. Rutherford challenged the dismissal of his claims

against the AVCF and FMCC defendants, but the district court did not comment

on those objections. The district court adopted the magistrate judge’s

recommendations and dismissed the medical staff members at AVCF and FMCC

on its determination that Mr. Rutherford had not made any factual allegations to

show that staff members personally participated in a violation of his constitutional

rights.

          Based on our review of Mr. Rutherford’s complaint, his motions to amend,

the attachments to those motions, and his July 30 affidavit supplementing his

complaint, we conclude that Mr. Rutherford has adequately stated a claim against

individual medical staff members at AVCF for deliberate indifference to Mr.

Rutherford’s serious medical needs by ignoring his neurosurgeon’s orders for an

extra mattress, and by refusing to respond to his pleas for effective pain

medication, for transfer to a hospital for medical treatment, or for a wheelchair.

          We also conclude that he has stated additional claims against the individual

John Doe medical staff at FCF for retaliation in the confiscation of his cane,

discontinuation of his pain medication, refusal to treat him after an assault and

threat to send him to segregation for requesting medical care. We remand for


                                           -18-
consideration of Mr. Rutherford’s Eighth Amendment claims for deliberate

indifference against the individual medical staff members of FCF who allegedly

refused to administer prescribed interferon treatments while he was in

segregation, refused to comply with orders prescribing an extra mattress or to

schedule appointments with a doctor or specialist.

      We conclude that Mr. Rutherford stated a claim for deliberate indifference

to serious medical needs by alleging that the medical staff members at FMCC

disregarded his complaints about severe back pain, prescribed exercise and

physical therapy that worsened his back condition without first performing tests

or examination, delayed referring him to a doctor for medical care, allowed orders

for referrals to expire, and failed to schedule prescribed tests, surgery, and

follow-up care.

      We further conclude that, on the issue of improper administration of

interferon treatments, Mr. Rutherford has failed to state cognizable claims against

the FMCC medical staff members. An Eighth Amendment claim will not lie for

only negligent medical treatment,   see Handy v. Price , 996 F.2d 1064, 1067 (10th

Cir. 1993), and his allegations are supported by evidence indicating that the

FMCC medical staff’s failures were due to pharmacy or nursing errors or

inadvertence, not from deliberate indifference. Regarding his claim that the

FMCC medical staff refused to continue to administer a prescribed course of


                                         -19-
interferon treatments when he was first transferred to that facility in 1999,

however, we conclude that he has stated a claim for deliberate indifference to a

serious medical need.

      We have considered all other allegations of error and find them to be

without merit. Accordingly, we affirm the other rulings of the court dismissing

defendants Medical Department of Department of Corrections, Robert Flores, Dr.

McGarry, Warden Soares, Warden Neet, C/O Egley, P.A. Lawerance, Dr.

Wermers, Transport of CDOC, Dolores Montoya, and Offender Services.

      Mr. Rutherford’s motion to proceed      in forma pauperis on appeal is

GRANTED. The judgment is AFFIRMED in part, REVERSED in part, and

REMANDED for further proceedings consistent with this order and judgment.


                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




                                           -20-
No. 02-1279, Rutherford v. Colo. Dep't of Corr., Med. Dep't

BRISCOE, Circuit Judge, concurring and dissenting.

      I concur in Parts I, II, and III of the majority opinion. In particular, I agree

that the district court erred in dismissing some of Rutherford’s claims due to his

failure to pay filing fees, and in granting summary judgment in favor of Dr.

Cabling on Rutherford’s claims of deliberate indifference and retaliation. I

disagree, however, with the portion of Part IV of the majority opinion that

discusses and ultimately gives life to allegations set forth in Rutherford’s April

20, 2001, motion to amend, and in his July 30, 2001, letter to the district court

and accompanying “affidavit.” For the reasons outlined below, I believe that the

applicable standard of review and Rutherford’s failure to file an amended

complaint as directed by the district court require us to look only to the claims

asserted in Rutherford’s original complaint.

                                          I.

      Rutherford filed his original complaint on December 5, 2000. Among the

defendants listed in the caption were a “John Doe” employed at the Fremont

Correctional Facility (FCF) and the “staff of FMCC” (Four Mile Correctional

Center). ROA, Doc. 3 at 1. The body of the complaint vaguely suggested that the

reference in the caption to “John Doe” was intended to include a “Doctor, NP

[presumably nurse practitioner] and PA [presumably physician’s assistant].” Id.

at 7. With respect to these unnamed persons at FCF, the complaint alleged that
(1) “th[e] facility allowed [Rutherford]’s authorization number (for specialist) to

expire,” (2) “FCF medical” “ignored and denied” “some orders” written by the

specialist who eventually saw Rutherford, (3) Rutherford’s request for a second

mattress prescribed by the specialist was denied because “of a disagreement

between DOC and the medical department” as to who should pay for it, and (4)

the medical staff at FCF incorrectly informed plaintiff, in response to his request

for pain medication, that his prescription for “Nueronton” 1 was considered a pain

medication. Id. With respect to the “staff of FMCC,” the body of the complaint

alleged that the staff failed to properly order his interferon medication and

thereby caused him to miss scheduled treatments. Id. at 7, 11. Finally, there were

vague assertions in the body of the complaint that, while housed at FCF, he

received sporadic interferon treatment during a 30-day period while in

segregation, and that unnamed personnel removed from his cell a drug prescribed

for treatment of Hepatitis C, Ribavirin, and thereafter required him to receive this

medication from the FCF medical staff. Id. at 13-14.

        On April 20, 2001, Rutherford filed a motion for leave to amend his

complaint. Id., Doc. 29. The motion specifically sought leave to add the medical

staff at the Arkansas Valley Correctional Facility (AVCF) as a defendant. Id. at

1. The motion also, in rambling fashion, alleged that (1) the medical staff at


1
    Rutherford presumably meant to refer to the prescription drug Neurontin.

                                         -2-
AVCF failed to see him for a period of over one week after he was initially

transferred to AVCF, (2) his medically-assigned mattress “was removed, placed

back on the transport bus and taken to some unknown facility,” (3) “[h]e was

denied a permit for a second mattress until this previous mattress could be found

and returned,” (4) “[h]e was denied a permit for his button-up shirts, which were

assigned for a pinched nerve in his neck,” (5) “[h]e was denied snacks to counter

his ‘hypoglycemia,’” (6) the medical staff at AVCF charged him for medical

services that he believed he should have received for free, and (7) the medical

staff at AVCF required him to make separate appointments for separate medical

problems and charged him for each appointment. Id. at 2. Finally, the motion

contained what appeared to be additional assertions against a non-medical

employee at FCF named “Duane.” In particular, the motion alleged that on some

unspecified date, Rutherford sought medical attention at FCF and was informed

by “Duane” that he would not be seen and would in fact be placed in segregation

if he did not leave the medical clinic. Id. at 3.

      On June 11, 2001, the magistrate judge conducted a status and scheduling

hearing and granted Rutherford’s motion, giving him until July 2, 2001, to file an

amended complaint. Id., Docs. 42 and 43. On July 2, 2001, Rutherford filed a

two-page pleading captioned “Motion to Amend.” Id., Doc. 44. The motion

asked the district court to amend the caption of the original complaint to include


                                           -3-
the AVCF and FCF medical staffs as defendants, and to amend the “Damages”

section of the original complaint in several respects, including assertion of a

claim against the AVCF medical staff for “Retaliation” in the amount of

$50,000.00. Id. Significantly, however, the motion was silent with respect to the

specific allegations Rutherford sought to assert against these defendants. There

was also no mention of “Duane,” the FCF employee referred to in Rutherford’s

April 20, 2001, motion for leave to amend.

      Rutherford addressed a lengthy handwritten letter to the district judge

overseeing the case. The bulk of the letter was under the sub-heading of

“Affidavit” and the letter was filed by the district court’s clerk’s office as a

pleading on July 30, 2001. Id., Doc. 52. In the letter, Rutherford alleged, in

pertinent part, that after being returned to FCF following surgery, his egg-crate

mattress and cane were taken, he was assaulted by the employee who took his

cane, and his pain medication ceased. Rutherford also alleged that he had filed

numerous “medical kites” with the AVCF medical staff but had not been seen by

a physician. At the conclusion of the letter, Rutherford asked for various forms

of injunctive relief (e.g., ordering that all pain medications be immediately

reissued).

      On October 5, 2001, the magistrate judge issued an order addressing

several pending matters, including “the purported amendments to plaintiff’s


                                          -4-
complaint.” Id., Doc. 69 at 1. Reviewing Rutherford’s July 2, 2001, “Motion to

Amend,” the magistrate judge noted:

      Plaintiff does not allege any facts in support of his claims against the
      new defendants. None of the claims identified in the April 20, 2001
      Motion for Leave to Amend are included in the purported amended
      pleading filed on July 2, 2001.
             Under 28 U.S.C. § 1915A, the court screens pleadings filed by
      a pro se prisoner to determine whether they are frivolous or fail to
      state a claim upon which relief can be granted. The court finds that
      plaintiff’s July 2, 2001 amendment fails to state any claims for relief
      against the new defendants. Further, it is not clear whether plaintiff
      intends for his amended complaint to include the claims identified in
      his April 20, 2001 Motion to Amend. Because plaintiff is pro se, the
      court will give him an opportunity to cure the deficiencies in his
      amendment.

Id. at 3-4. Accordingly, the magistrate judge ordered

      that on or before November 9, 2001, plaintiff shall file a pleading
      titled “Amended Complaint” which names all defendants and
      contains factual allegations to support the asserted claims for relief
      against each of the defendants. Plaintiff shall also specify his
      requested relief against each defendant. No further amendments will
      be allowed.

Id. at 4. Although Rutherford continued to file numerous pleadings in the case,

including a motion to clarify other portions of the magistrate judge’s October 5,

2001, order, id., Doc. 72, he failed to file an amended complaint as directed by

the magistrate judge. 2


2
 In its order and judgment, the majority correctly notes that Rutherford filed a
“Motion Seeking Enlargement of Time.” ROA, Doc. 79. Curiously, however, the
majority suggests the motion sought “an enlargement of time in which to address
                                                                      (continued...)

                                         -5-
      On April 16, 2002, the magistrate judge issued a written recommendation

addressing the defendants’ dispositive motion. The magistrate judge outlined in

detail the history of Rutherford’s attempts to amend his original complaint and

noted that Rutherford had failed, as directed, to file an amended complaint on or

before November 9, 2001. In light of Rutherford’s failure “to comply with the

court’s October 5, 2001 Order to file an amended complaint,” the magistrate

judge concluded that the “AVCF Med. Staff” and the “Med. Staff of FMCC

should be dismissed because the[se] DOC departments are absolutely immune

from damages liability and plaintiff has not alleged any factual allegations to

show that individual staff members in those DOC departments personally

participated in a violation of plaintiff’s constitutional rights.” Id. at 15-16. As

for the medical staff at FCF, the magistrate judge looked to the allegations in

Rutherford’s original complaint and concluded that Rutherford had asserted a

colorable Eighth Amendment claim for denial of interferon treatment while in

segregation (but had not alleged a colorable Eighth Amendment claim based upon


2
 (...continued)
all of the magistrate judge’s October 5 rulings.” Maj. Op. at 17. I disagree with
this interpretation of the motion. Notably, the motion does not mention the
magistrate judge’s directive to file an amended complaint. Instead, the motion
focuses exclusively on defendants’ alleged failure to provide Rutherford with a
complete copy of his medical records, and the impact of that alleged failure on
Rutherford’s ability to respond to defendants’ dispositive motion. In any event, it
is clear from reviewing the record that the magistrate judge did not extend the
November 9, 2001, deadline for filing an amended complaint.

                                          -6-
the removal of Ribavirin from his cell). Id. at 16. As for “John Doe (doctor, NP

and PA)” at FCF, the magistrate judge concluded that Rutherford’s original

complaint stated a colorable Eighth Amendment claim for denial of an extra

mattress as prescribed by his specialist. 3 Id. In a subsequent recommendation

issued on April 23, 2002, the magistrate judge recommended dismissing the two

colorable Eighth Amendment claims due to Rutherford’s failure to pay the

requisite filing fee. Id., Doc. 134.

      On May 7, 2002, Rutherford filed a motion to disqualify the magistrate

judge and objections to the magistrate judge’s April 16, 2002, recommendation.

Id., Doc. 140. Although Rutherford obviously disagreed with the magistrate

judge’s proposed disposition of his claims, he offered no justification for his

failure to abide by the magistrate judge’s directive to file an amended complaint.

Indeed, his pleading was silent with respect to that procedural aspect of the case.

Further, Rutherford made no attempt to flesh out his claims against the various

medical staffs. At most, Rutherford made vague references to a mattress being

taken from him at AVCF and to the FMCC medical staff's failure to properly

order his interferon treatments.


3
  The magistrate judge apparently overlooked the remaining allegations in the
original complaint against these defendants (i.e., that defendants allowed
Rutherford’s authorization number for a specialist to expire, ignored and denied
some orders issued by Rutherford’s specialist, and improperly utilized the drug
“Nueronton” for management of Rutherford’s back pain).

                                         -7-
       On May 29, 2002, the district court adopted the magistrate judge’s

recommendation. Id., Doc. 145. Accordingly, the district court in pertinent part

dismissed Rutherford’s claims against the medical staffs of FMCC and AVCF

“for lack of subject matter jurisdiction” and “failure to state a claim on which

relief c[ould] be granted.” Id. at 4. As for the two colorable Eighth Amendment

claims asserted by Rutherford against the John Doe staff members at FCF who

denied his interferon treatment and use of a prescribed mattress, the district court

dismissed those claims without prejudice due to Rutherford’s failure to pay the

requisite filing fee. Id. at 4-5.

                                           II.

       As the majority correctly notes at the outset of Section IV of its opinion, we

are required to “liberally construe the allegations of a pro se complaint[,] . . .

[and] in deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look

both to the complaint itself and to any documents attached as exhibits to the

complaint.” Maj. Op. at 13 (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1275

(10th Cir. 2001)). After stating the applicable standard, the majority, in my view,

then proceeds to misapply the standard. Under the guise of liberally construing a

pro se litigant’s pleadings, the majority ignores the directive to focus on the

allegations in the complaint and instead chooses to focus on vague allegations set

forth in Rutherford’s April 20, 2001, motion for leave to amend his complaint and


                                           -8-
in his July 30, 2001, letter and “affidavit.” Although I question the propriety of

doing so even in a routine case, the failure to focus on the allegations in

Rutherford's complaint is made more egregious in this case in light of

Rutherford’s failure to comply with the magistrate judge’s October 5, 2001, order

to file an amended complaint outlining his claims against each defendant. Given

Rutherford’s failure, I believe it was proper for the magistrate judge to look only

to the allegations in his original complaint rather than, as the majority does here,

to “grope through . . . pages of irrational prolix and redundant pleadings,

containing matters foreign to the issue involved . . . in order to determine the

grounds for the . . . complaint.” C. Wright & A. Miller, Federal Practice and

Procedure § 1281 at 522 (2d ed. 1990) (internal quotations omitted). The

majority ignores the requirements of Federal Rule of Civil Procedure 8(a) (“A

pleading which sets forth a claim for relief . . . shall contain . . . (2) a short and

plain statement of the claim”), assumes the role of advocate by constructing

Rutherford’s claims for him, see Peterson v. Shanks, 149 F.3d 1140, 1143 (10th

Cir. 1998) (“[W]e do not believe it is the proper function of the district court to

assume the role of advocate for the pro se litigant.”), and subjects the defendants

and the district court to a new round of litigation on “claims” that were nowhere

to be found in Rutherford’s original complaint.




                                            -9-
      Because I believe that Rutherford is limited to the claims set forth in his

original complaint, I disagree with the majority’s decision to recognize and

“remand” any “claims” against the medical staffs of AVCF, FCF, or FMCC, or

any “John Doe” members thereof, that were contained in pleadings other than the

original complaint.




                                        -10-
