                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 15 1999
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 LEONARD J. PELTIER,

           Plaintiff - Appellant,
 vs.                                                     No. 98-3319
                                                    (D.C. No. 98-CV-3272)
 FEDERAL BUREAU OF PRISONS,                                (D.Kan.)
 agents, employees, servants and
 physician contractors of the Bureau;
 J.W. BOOKER, JR., USP -
 Leavenworth,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Mr. Peltier, a federal prisoner who appeared pro se in the district court but

is now represented by counsel, brought this action under 42 U.S.C. § 1983

alleging that Defendants Federal Bureau of Prisons, Warden J.W. Booker, Jr., and


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
other prison officials denied him adequate medical care and subjected him to

cruel and unusual punishment in violation of the Eighth Amendment. After Mr.

Peltier had paid the filing fee, but before service of summons on Defendants, the

district court dismissed the matter sua sponte, holding that Mr. Peltier’s complaint

failed to state a claim for relief.

       Mr. Peltier argues on appeal that the district court erred in dismissing his

complaint before service of process could be made and without affording him an

opportunity to amend his complaint and/or present evidence on his claims. We

review de novo a district court's order dismissing a prisoner's case for failure to

state a claim pursuant to 28 U.S.C. § 1915A. See McGore v. Wrigglesworth, 114

F.3d 601, 604 (6th Cir. 1997); see also Perkins v. Kansas Dep't of Corrections,

165 F.3d 803, 806 (10th Cir. 1999) (establishing the de novo standard of review

for a dismissal under 28 U.S.C. S 1915(e)(2)(B)(ii) for failure to state a claim).

       Although it is unclear whether the district court based its dismissal of Mr.

Peltier’s complaint on Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B)(ii), or

28 U.S.C. § 1915A(b)(1), the district court properly dismissed the complaint sua

sponte regardless of the basis invoked. See United States v. Sandoval, 29 F.3d

537, 542 n.6 (10th Cir. 1994) (appellate court is free to affirm a district court

decision on any grounds supported by the record).

       Section 1915A(a) requires the court to “review, before docketing . . . or . . .


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as soon as practicable after docketing” all civil complaints “in which a prisoner

seeks redress from a governmental entity of officer or employee of a

governmental entity.” The court then must dismiss the complaint if it “fails to

state a claim upon which relief may be granted.” § 1915A(b)(1); see also

Wrigglesworth, 114 F.3d at 612 (stating that, under § 1915A, “courts have no

discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte

dismissal”). Further, a district court may always dismiss a claim sua sponte under

Rule 12(b)(6) “when it is patently obvious that the plaintiff could not prevail on

the facts alleged, and allowing him an opportunity to amend his complaint would

be futile.” McKinney v. Oklahoma Dep’t of Human Servs., 925 F.2d 363, 365

(10th Cir. 1991) (internal quotation marks and citations omitted). Thus, if Mr.

Peltier’s complaint failed to state a claim, the district court did not err in

dismissing it sua sponte.

      Prison officials violate the Eighth Amendment when they are deliberately

indifferent to the serious medical needs of prisoners in their custody. See Estelle

v. Gamble, 429 U.S. 97, 104-106 (1976). In his complaint, Mr. Peltier alleged

that as a result of a negligently performed surgery at the Medical Center for

Federal Prisoners in Springfield, Missouri, he “has suffered great physical pain

and anguish from constant jaw pain, headaches, facial pain, difficulty chewing

and swallowing food . . . and has had [a] disfiguring injury.” R. doc. 1 at 3.


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Further, although Defendants have offered additional surgery in Springfield, they

have refused to permit treatment at the Mayo Clinic in Rochester, Minnesota, as

requested by Mr. Peltier. See id.

      Accepting these allegations as true, see Gagan v. Norton, 35 F.3d 1473,

1474 n.1 (10th Cir. 1994), and construing Mr. Peltier’s pro se pleadings liberally,

see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we are satisfied that Mr.

Peltier could not possibly obtain relief under the facts alleged. At most, he states

a claim for medical malpractice. “[A] complaint that a physician has been

negligent in . . . treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment. Medical malpractice does

not become a constitutional violation merely because the victim is a prisoner.”

Estelle, 429 U.S. at 106. Further, the question of where Mr. Peltier’s follow-up

surgery should take place is “a matter for medical judgment,” id. at 107, and a

decision not to allow treatment at the Mayo Clinic does not represent cruel and

unusual punishment. Mr. Peltier has failed to state a claim for relief under the

Eighth Amendment.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge


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