                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           OCT 4 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 DOUGLAS J. OATES,

          Plaintiff-Appellant,

 v.
                                                       No. 99-1187
                                                   (D.C. No. 97-N-2737)
 ROSE ENGLUND, OFFICER
                                                        (Colorado)
 HERERRA, OFFICER
 SUMMERFIELD and ROY HAVENS,
 Phisicians (sic) Assistant,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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)(2); 10th Cir. R. 34.1(G). The cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      Douglas J. Oates, a state prisoner, brought this pro se civil rights action

against employees of state correctional facilities in Colorado alleging various

violations of his Eighth Amendment rights. The matter was referred to a

magistrate judge, who recommended dismissal of all the claims. The district

judge adopted the recommendations and dismissed the case with prejudice. Mr.

Oates appeals and we affirm.

      In his complaint, Mr. Oates alleged that nurse Rose England deliberately

infected him with hepatitis in July, 1991, while he was incarcerated. He alleged

that she was paid to do so by outside sources and that he did not learn he was

infected until several years later. Ms. England moved to dismiss the claim as

barred by two-year limitation period applicable to section 1983 claims in

Colorado. See Blake v. Dickason, 997 F.2d 749, 750 (10th Cir. 1993). In

response, Mr. Oates offered medical records showing that he tested positive for

hepatitis on February 20, 1992, although he asserted that he was not informed of

this fact by prison medical staff until March 15, 1997. On appeal, Mr. Oates

contends that his affidavit creates a genuine issue of fact as to when he knew or

should have known of the facts giving rise to his claim.

      While we agree with Mr. Oates that “[m]aterial factual disputes cannot be

resolved at summary judgment based on conflicting affidavits,” it is also true that

“[t]o come within the protection of this rule . . . the nonmovant’s affidavits must


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be based upon personal knowledge and set forth facts that would be admissible in

evidence; conclusory and self-serving affidavits are not sufficient.” Hall v.

Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991) (emphasis added). Here Mr.

Oates has offered nothing to support his conclusory and self-serving allegation

that he was not told of his condition until some five years after he was tested. His

affidavit is thus not sufficient to create a genuine issue of fact and the claim

against Ms. England was therefore properly dismissed on the basis of the

applicable statute of limitations.

      The claims against defendants Hererra, Summerfield, and Havens were also

properly dismissed. On September 12, 1997, after Mr. Oates apparently

complained of medical problems, Mr. Havens, a physician’s assistant, requested

that Mr. Oates be brought to the medical examination room. Prison officers

Hererra and Summerfield brought Mr. Oates to the room pursuant to prison

regulations. Defendants stated by affidavit that Mr. Oates demanded Mr. Havens

put on rubber gloves before the examination. When Mr. Havens was unable to

find any gloves, Mr. Oates refused to be examined and was taken back to his cell.

Mr. Oates, on the other hand, alleged that Mr. Havens hypnotized him and

performed a medical procedure upon him without his consent. Mr. Oates further

stated that his medical problems continued, and that tests by an outside hospital

revealed a cyst that required removal by surgery.


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      To the extent Mr. Oates seeks monetary relief against these defendants in

their official capacities, the suit is barred by the Eleventh Amendment. See White

v. State of Colorado, 82 F.3d 364, 366 (10th Cir. 1996). Moreover, the suit

against them individually was properly dismissed on the basis of qualified

immunity. Qualified immunity shields public officials from liability for civil

damages when their actions do not violate clearly established constitutional law

of which a reasonable person would have known. See Siegert v. Gilley, 500 U.S.

226, 231 (1991). Mr. Oates’ allegations, even if taken as true, do not state a

constitutional violation. See id. at 232.

      A prisoner states an Eighth Amendment violation if he alleges facts

sufficient to show that prison officials were deliberately indifferent to his serious

medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). However, not

every claim by a prisoner that he has received inadequate medical treatment states

a constitutional violation. Id. at 105. Allegations of inadvertent failure to

provide adequate medical care or of negligent diagnosis or treatment do not

establish the requisite culpable state of mind. Id. at 105-06. The selection of

diagnostic techniques and treatment are matters of medical judgment, and are at

most claims of medical malpractice that do not rise to constitutional violations.

Id. at 107.

      Here, viewing the record most favorably to Mr. Oates, it appears that the


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alleged hypnosis and treatment by Mr. Havens did not adequately treat Mr. Oates’

medical condition. As discussed above, however, these facts are not sufficient to

state an Eighth Amendment violation. Thus summary judgment was properly

granted in favor of Mr. Havens. To the extent Mr. Oates alleges that defendants

Hererra and Summerfield personally participated in the violation of his

constitutional rights by conspiring with Mr. Havens, summary judgment was

properly granted on that claim as well because Mr. Havens’ conduct was not

unconstitutional. 1

      Accordingly, the judgment of the district court is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Chief Judge


      1
        We conclude that the record before us is adequate to allow the proper
disposition of Mr. Oates’ claims and we therefore deny his requests for oral
argument, for entire transcripts, and for production of additional documents. We
affirm the denial under 28 U.S.C. § 1915(e)(2) of his request to amend his
petition. We also affirm the dismissal as frivolous of Mr. Oates’ claim that
unnamed prison officials have implanted electronic devices under his skin and
have operated these devises remotely to administer pain and suffering. We
dismiss as moot Mr. Oates’ claim for injunctive relief requesting that he be
scheduled for surgery to alleviate his medical condition since the record indicates
that Mr. Oates’ surgery was scheduled for October, 1998. His request to be
transferred to another facility was properly denied as he has no right to
incarceration at any particular facility. See Olim v. Wakinekona, 461 U.S. 238,
247-48 (1983). His request for immediate release states a claim for habeas corpus
relief under 28 U.S.C. § 2254 that must be dismissed for failure to exhaust state
remedies. See 28 U.S.C. § 2254(b), (c).

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