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

                      FOR THE TENTH CIRCUIT                    January 4, 2016
                      _________________________________
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
KENNETH J. FELLON,

      Plaintiff - Appellant,

v.                                                 No. 15-8016
                                          (D.C. No. 2:14-CV-00100-ABJ)
ROBERT O. LAMPERT, Wyoming                          (D. Wyo.)
Department of Corrections Director,
in his individual and official
capacities; STEVE HARGETT,
Wyoming Department of Corrections
Medium Correctional Institution
Warden, in his individual and
official capacities; MELANIE
MARTINEZ-ELLIS, Wyoming
Department of Corrections Medium
Correctional Institution Health
Service Administrator, in her
individual and official capacities;
EDDIE WILSON, Wyoming
Department of Corrections State
Penitentiary Warden, in his
individual and official capacities;
JEFF SHANAHAN, former
Wyoming Department of Corrections
State Penitentiary Health Services
Administrator, in his individual and
official capacities; KURT
JOHNSON, Wyoming Department of
Corrections Medium Correctional
Institution Health Services Regional
Manager, in his individual and
official capacities; DOCTOR
YOUNG, Wyoming Department of
Corrections State Penitentiary
Health Services Physician, in his
individual and official capacities;
NURSE ROTH, Wyoming
Department of Corrections State
Penitentiary Nurse, in her individual
and official capacities; NURSE
OAKLEY, Wyoming Department of
Corrections Medium Correctional
Institution Nurse, in her individual
and official capacities; CORIZON
HEALTH SERVICES, INC.,

       Defendants - Appellees.
                      _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Mr. Kenneth Fellon is a Wyoming prisoner who suffered from

chronic pain in his shoulder and arm. He sought and obtained medical care

from a private entity, Corizon Health, Inc. Mr. Fellon grew dissatisfied

with the medical care and sued under 42 U.S.C. § 1983, alleging violation

of the Eighth Amendment and negligence by state officials, Corizon

Health, and Corizon employees. The state officials moved for dismissal,

and the Corizon defendants moved for summary judgment. The district




*
      The parties do not request oral argument, and the Court has
determined that oral argument would not materially aid our consideration
of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.

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court granted both motions, and Mr. Fellon appeals. On appeal, we address

three issues:

      1.    Did Mr. Fellon adequately allege personal participation by
            the state officials? (No) Mr. Fellon sued the state officials not
            only in their official capacities, but also in their personal
            capacities. These defendants could incur personal liability only
            if they participated in the alleged constitutional violations. In
            the complaint, however, Mr. Fellon alleged that the medical
            care was entrusted to a private business, Corizon Health. As a
            result, the district court properly dismissed the personal-
            capacity claims against the state officials.

      2.    Did the evidence create a genuine issue of material fact on
            deliberate indifference to Mr. Fellon’s medical needs? (No)
            The Eighth Amendment prohibits deliberate indifference to a
            prisoner’s serious medical needs. Officials are deliberately
            indifferent when they disregard medical needs, not simply when
            they fail to provide the type of medical care the prisoner thinks
            he needs (even if he is right). The summary judgment record
            reflected numerous medical examinations, where Corizon
            medical staff treated Mr. Fellon’s pain. In light of this
            undisputed record of treatment, the district court properly
            granted summary judgment to the Corizon defendants. 1

      3.    Did Mr. Fellon present a reason to question the district
            court’s ruling on the state-law claims? (No) In the
            complaint, Mr. Fellon mentions negligence and state tort law.
            For the state-law claims against the state officials, the district
            court ordered dismissal, holding that the state officials enjoy
            immunity under the Wyoming Governmental Claims Act. For
            the state-law claims against the Corizon defendants, the court
            granted summary judgment to these defendants on the ground
            that they are protected from liability under the Wyoming
            Medical Review Panel Act. On appeal, Mr. Fellon argues the
            defendants were negligent, but does not address the district


1
      In their response brief, the state officials also defend the district
court’s rulings on Eleventh Amendment immunity. But Mr. Fellon has not
challenged the ruling.

                                       3
            court’s rationale. In these circumstances, we have no reason to
            disturb the district court’s rulings on the state-law claims.

Based on our conclusions on the three issues, we affirm the dismissal and

award of summary judgment.

1.    Personal-Capacity Claims Under § 1983 Against the State
      Officials: Mr. Fellon has not alleged a factual basis to infer
      personal participation of the state defendants.

      The state defendants could incur personal liability only if they

participated in the alleged constitutional violation. Duffield v. Jackson,

545 F.3d 1234, 1238 (10th Cir. 2008). Relying on this requirement, the

federal district court dismissed the personal-capacity claims against the

state defendants. This ruling was correct.

      In reviewing the dismissal, we engage in de novo review. Hogan v.

Winder, 762 F.3d 1096, 1104 (10th Cir. 2014). This review requires us to

determine whether Mr. Fellon provided enough facts in the complaint to

state a facially plausible claim. Id.

      In the complaint, Mr. Fellon complains about the medical treatments

provided by the Corizon medical staff. But Mr. Fellon acknowledges in the

complaint that the medical care was entrusted to Corizon Health. The state

defendants participated only by handling administrative complaints about

the treatment provided by Corizon Health. But the handling of these

administrative complaints would not constitute personal participation for

purposes of personal liability. Stewart v. Beach, 701 F.3d 1322, 1328 (10th


                                        4
Cir. 2012). Thus, the district court properly dismissed the personal-

liability claims against the state officials.

2.    § 1983 Claims Against the Corizon Defendants: Mr. Fellon has
      not presented evidence creating a genuine issue of material fact
      on Corizon’s deliberate indifference to his medical needs.

      The remaining claims are against Corizon and its employees. These

defendants obtained summary judgment based on evidence of their medical

attention. We agree with this ruling.

      Under the Eighth Amendment, the Corizon defendants would incur

liability only if they knew of an excessive risk to Mr. Fellon’s serious

medical needs and disregarded that risk. Sealock v. Colorado, 218 F.3d

1205, 1209 (10th Cir. 2000).

      In assessing Mr. Fellon’s evidence under this standard, we must

apply the standard for summary judgment. The district court had to grant

summary judgment if the Corizon defendants showed the absence of a

genuine issue of material fact and their entitlement to judgment as a matter

of law. Id. To apply this standard, the district court had to view the

evidence and reasonable inferences in the light most favorable to Mr.

Fellon. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

      Under this standard, there was no genuine issue of medical fact

because the undisputed evidence reflected extensive medical treatment. For

example, Dr. Young and Dr. Johnson prescribed numerous medicines to

treat the pain: Lyrica, Naproxen, Baclofen, Hydrocodone, Tegretol, and

                                        5
Gabapentin. The treatment regimen included x-rays, use of a sling and arm

compression sleeve, and physical therapy.

      Mr. Fellon complains about the delays and infrequency in his

treatment. But the undisputed evidence demonstrates that he was examined

regularly, usually every month, and the only gap in his pain medication

was during a brief time in which Mr. Fellon was housed in Nebraska on

another conviction. Mr. Fellon has not presented evidence of any

additional pain or substantial harm from the alleged delays or frequency of

his treatment. See Sealock, 218 F.3d. at 1210 (“Delay in medical care only

constitutes an Eighth Amendment violation where the plaintiff can show

the delay resulted in substantial harm.”).

      Mr. Fellon complains that the doctors should have ordered surgery.

But doctors rejected surgery as an option, fearing that surgery could

exacerbate Mr. Fellon’s nerve damage and destroy the ability to use his

arm and shoulder. Mr. Fellon disagrees with this rationale, but that

disagreement does not support an Eighth Amendment claim. Gee v.

Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010).

      In light of the undisputed evidence of treatment, the district court

correctly awarded summary judgment to the Corizon defendants.




                                      6
3.   State Law Claims Against All Defendants: Mr. Fellon has not
     presented a reason to overturn the rulings on the state-law
     claims.

     In the complaint, Mr. Fellon referred to negligence and state tort law.

The district court liberally interpreted these references as independent

claims. But the district court concluded that these claims were invalid,

relying on the Wyoming Governmental Claims Act and the Wyoming

Medical Review Panel Act. On appeal, Mr. Fellon argues the defendants

were negligent. But the district court did not question the sufficiency of

the allegations on negligence. Instead, the court concluded that the

defendants could not incur liability for negligence because of the Wyoming

Governmental Claims Act and the Wyoming Medical Review Panel Act.

Mr. Fellon does not question the district court’s rationale, and we have no

reason to disturb the rulings on the state-law claims.

4.   Disposition

     We affirm, upholding the district court’s dismissal of the claims

against the state defendants and award of summary judgment to the

Corizon defendants.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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