                                                            FILED
                                                United States Court of Appeals
                   UNITED STATES COURT OF APPEALS       Tenth Circuit

                          FOR THE TENTH CIRCUIT               August 27, 2012

                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
JOHN NASIOUS,

            Plaintiff-Appellant,

v.                                                     No. 11-1450
                                          (D.C. No. 1:09-CV-01051-REB-KMT)
STATE OF COLORADO, Office of the                        (D. Colo.)
Governor Bill Ritter; NURSE MARTHA
MUELLER, Physician Health Partners;
DR. BARRY GOLDSMITH, Physician
Health Partners; PAULA FRANTZ,
M.D., CMO, Colorado Dept. of
Corrections; STEPHEN KREIBS, M.D.,
Physician Health Partners Agent of
Record; P.A. BRIAN WEBSTER,
Physician Health Partners (Ft. Meyers,
Fl.); P.A. TEJENDER SINGH, Physician
Health Partners; ARISTEDES
ZAVARAS, Executive Director, CDOC;
JOSEPH GARY FORTUNADO, D.O.,
Physician Health Partners; P.A. JOANN
STOCK, Physician Health Partners;
NURSE NANCY WHITE, Physician
Health Partners; JOSEPH WERMERS,
M.D., Physician Health Partners; CO
ST. MARTIN, Colorado Dept. of
Corrections; CO. REGINA JOHNSON,
Medical Department Colorado
Department of Corrections; CAPTAIN
WEINGARDT, Colorado Department of
Corrections; LT. MARK BOLD,
Colorado Department of Corrections; LT.
JASON ZWIRN, Colorado Department
of Corrections; SHANE MCMAHILL,
Colorado Department of Corrections;
CATHIE HOLST, Manager of
Correctional Legal Services, ADA
Coordinator, AIC CDOC; ADRIENNE
JACOBSON, Legal Assistant AIC/ADA
Coordinator CDOC; SGT. BECKY
BALL, Colorado Dept. of Corrections;
LT JIMERSON, Colorado Dept. of
Corrections; MS. HAVERLY,
LIBRARIAN, Colorado Dept. of
Corrections; JON DOE AND JANE
DOE, all in their individual capacities,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.


      John Nasious, a Colorado prisoner proceeding pro se, appeals the district

court’s judgment against him in his prison-conditions lawsuit under 42 U.S.C. § 1983

and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134

(ADA). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Nasious filed an amended complaint with four claims. On appeal, he focuses

on two of those claims: a § 1983 claim alleging denial of medical treatment in

violation of the Eighth Amendment and an ADA claim alleging denial of the ability

to participate in programs and services and/or discrimination against him because of
*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


                                           -2-
his disabilities. Because his opening brief fails to present sufficient argument

regarding the reasons for granting judgment for defendants on the other two claims,

he has waived any challenge regarding those claims. See Guttman v. Khalsa,

669 F.3d 1101, 1116 (10th Cir. 2012).

         Nasious asserted his Eighth Amendment claim against certain defendants who

were medical providers or their gatekeepers and against other defendants who were

not involved with medical decisions. Nasious does not make any appellate argument

regarding the dismissal of the allegations against the non-medical defendants.

Therefore, we focus on the medical defendants. The magistrate judge recommended

granting summary judgment to them because (1) the Eleventh Amendment barred an

award of money damages against defendants in their official capacities, and

(2) Nasious failed to establish any violation of his constitutional rights because he

did not show defendants were deliberately indifferent to his serious medical needs.

The district court agreed and adopted the recommendation. We review the grant of

summary judgment de novo. See White v. Colorado, 82 F.3d 364, 366 (10th Cir.

1996).

         In his opening brief, Nasious argues he sustained injuries from defendants’

“failure to treat or admit his disabilities.” Aplt. Br. at 2. We agree with the

district court that the Eleventh Amendment bars Nasious from recovering, under

§ 1983, money damages against defendants in their official capacities. See White,

82 F.3d at 366. We also agree Nasious failed to show defendants were deliberately


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indifferent to his serious medical needs. Clearly Nasious disagrees with defendants’

medical opinions and their prescribed courses of treatment for his various conditions,

but such disagreement fails to establish an Eighth Amendment violation. See Estelle

v. Gamble, 429 U.S. 97, 107 (1976); Perkins v. Kan. Dep’t of Corr., 165 F.3d 803,

811 (10th Cir. 1999); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). At most,

Nasious’s allegations of incorrect treatment might establish malpractice, which also

fails to establish an Eighth Amendment violation. See Estelle, 429 U.S. at 106-07;

Perkins, 165 F.3d at 811. Accordingly, we affirm the district court’s judgment for

defendants on the Eighth Amendment claim for substantially the reasons stated in the

magistrate judge’s report and recommendation filed on April 22, 2011.

      Regarding the ADA claim, Title II of the ADA provides “no qualified

individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. The magistrate judge recommended granting summary judgment on the

ADA claim because: (1) some of Nasious’s allegations were not cognizable under

the ADA, (2) Nasious failed to provide any evidence of a qualifying disability, and

(3) Nasious failed to produce any evidence he had been discriminated against because

of a disability. With one exception with regard to photophobia, which we discuss

below, the district court agreed and adopted the recommendation. The district court

also held defendants could not be sued in their individual capacities under Title II;


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Title II did not abrogate Colorado’s Eleventh Amendment immunity against money

damages; and the majority of Nasious’s ADA-related allegations were conclusory

and non-specific with regard to disabilities other than photophobia.1

      Before this court, Nasious again argues he is disabled within the meaning of

the ADA. Because the events underlying Nasious’s suit straddle the January 1, 2009,

effective date of the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat.

3553 (ADAAA), in which Congress provided for a broader construction of

“disability” than had previously applied, we shall assume solely for purposes of this

appeal that Nasious suffers from a disability. Instead, we affirm substantially on the

alternate grounds identified by the district court in its order filed on June 29, 2011.

As the district court stated, many of Nasious’s ADA-related complaints concern

defendants’ failure to provide him the medical treatment he desires. But the

ADA does not provide a remedy for medical negligence or a means to challenge

“purely medical decisions” regarding the propriety of a course of treatment.

Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005); see also

Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (stating the ADA “would not be

violated by a prison’s simply failing to attend to the medical needs of its disabled

prisoners. No discrimination is alleged; [plaintiff] was not treated worse because he

was disabled. . . . The ADA does not create a remedy for medical malpractice.”). To
1
       Earlier in the litigation, the district court had dismissed the ADA claim against
defendant Ritter in his individual capacity for failure to plead sufficient facts to
establish an ADA violation. Nasious does not appeal that decision.


                                          -5-
the extent that any of Nasious’s ADA allegations can overcome Fitzgerald, he failed

to produce evidence to show defendants denied him access to a prison program or

discriminated against him because of his asserted disabilities.

      The district court made one exception to the grant of summary judgment on the

ADA claim. It held Nasious could proceed with a claim that defendants Holst and

Jacobson, in their official capacities, violated Title II by failing to accommodate his

photophobia while he worked his prison job. The district court limited this claim to

injunctive relief only, holding Nasious could not recover money damages. The

claim, however, was never decided on the merits. While it was pending, Nasious was

transferred from Sterling Correctional Facility to a halfway house. Because Nasious

no longer worked at Sterling, the district court granted defendants’ Fed. R. Civ. P.

12(b)(1) motion to dismiss the claim as moot.2 We review this dismissal for

constitutional mootness de novo. See Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1122 (10th Cir. 2010).



2
       Nasious did not object to the magistrate judge’s recommendation to grant the
motion to dismiss. Under this court’s firm waiver rule, a failure to object to a
recommendation waives appellate review. See Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991). In response to a show-cause order issued by this court, Nasious
asserted he had filed objections. Apparently they did not reach the district court.
With regard to nearly every other recommendation Nasious did file objections, so it
was anomalous for him not to object to this particular recommendation. Thus, we
accept his representation that he did try to file objections and consider this issue
under the “interests of justice” exception to the firm waiver rule. See Casanova v.
Ulibarri, 595 F.3d 1120, 1123-24 (10th Cir. 2010); Wirsching v. Colorado,
360 F.3d 1191, 1197-98 (10th Cir. 2004).


                                          -6-
      Nasious argues the claim is not moot because he remains in the custody of the

Colorado Department of Corrections, and he “could end up back at Sterling

Correctional, tomorrow, that quick.” Aplt. Br. at 3. But it is well-settled that a

prisoner’s transfer out of a prison moots his requests for declaratory or injunctive

relief against staff at that prison. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311

(10th Cir. 2010). In McAlpine v. Thompson, 187 F.3d 1213, 1217 (10th Cir. 1999),

we applied this rule to a prisoner who was released on parole, holding, “the

hypothetical possibility that [the plaintiff], a former inmate on supervised release,

will violate the terms of that supervised release and be returned to the same prison

and same conditions of confinement cannot save an otherwise moot claim for

prospective injunctive relief relating to prison conditions.” We continued, “we are

not inclined to speculate that [the plaintiff] will break the law or otherwise violate the

conditions of the[] release agreement.” Id. at 1218. Similarly, we are not inclined to

speculate that Nasious will violate the terms of his commitment to the halfway house

and be returned to Sterling. The district court correctly determined the ADA claim

for injunctive relief was moot.

      Nasious also claims entitlement to money damages under United States v.

Georgia, 546 U.S. 151 (2006), in which the Supreme Court held, “insofar as Title II

creates a private cause of action for damages against the States for conduct that

actually violates the Fourteenth Amendment, Title II validly abrogates state

sovereign immunity.” Id. at 159. A claim for money damages would survive


                                          -7-
Nasious’s transfer to the halfway house. But Nasious’s argument is unavailing,

because the conduct underlying the claim against Holst and Jacobson would not

establish an actual violation of the Fourteenth Amendment.

      We have not considered the numerous documents attached to Nasious’s reply

brief. He did not move to supplement the record on appeal, and even if he had, we

would have denied any such request. The judgment of the district court is

AFFIRMED.


                                              Entered for the Court


                                              Terrence L. O’Brien
                                              Circuit Judge




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