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

                            FOR THE TENTH CIRCUIT                           April 8, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
THOMAS FAIRBANKS,

     Plaintiff - Appellant,

v.                                                         No. 15-8100
                                                 (D.C. No. 2:14-CV-00244-SWS)
ROBERT O. LAMPERT, Wyoming                                  (D. Wyo.)
Department of Corrections Director;
STEVE HARGETT, Wyoming Department
of Corrections Medium Correctional
Institution Warden; CORIZON HEALTH
SERVICES, INC.; DR. KURT JOHNSON,
Corizon Health Services, Inc. Regional
Manager; DR. WHITE, Corizon Health
Services, Inc. medical provider; NURSE
PRACTITIONER HOLCUMB, Corizon
Health Services, Inc. medical provider;
NURSE LIGGETT, Corizon Health
Services, Inc. medical provider; NURSE
HANSON, Corizon Health Services, Inc.
medical provider; NURSE BARRON,
Corizon Health Services, Inc. medical
provider,

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
                   _________________________________

       Thomas Fairbanks, a state prisoner proceeding pro se, appeals from a district

court order dismissing his 42 U.S.C. § 1983 claims against two Wyoming

Department of Corrections officials (“state defendants”) and the healthcare provider

for Wyoming prisoners, Corizon Health, Inc., along with several of its employees

(“Corizon defendants”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

       In his complaint, Fairbanks alleges that the defendants acted with deliberate

indifference to his medical needs in violation of the Eighth Amendment. He

contends he did not receive adequate treatment for his elbow, back, and nerve pain

despite numerous requests. Both groups of defendants filed motions to dismiss. The

state defendants argued that Fairbanks did not identify any action that violated his

rights. The Corizon defendants argued that Fairbanks’ allegations amounted to a

disagreement with the treatment he was provided and thus were insufficient to state a

claim for relief. The district court dismissed the complaint, finding that Fairbanks

failed to state a claim for relief against any defendant. We agree.

       “We review de novo the dismissal of a complaint for failure to state a claim

under Rule 12(b)(6).” Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). We construe liberally the

allegations in a pro se complaint, but we will not supply additional factual allegations


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or construct legal theories on behalf of a pro se party. Smith v. United States,

561 F.3d 1090, 1096 (10th Cir. 2009).

         Although Fairbanks cites the Fifth, Eighth, and Fourteenth Amendments as the

bases for his claims, his allegations of inadequate medical service are most suitably

analyzed under the Eighth Amendment, which prohibits prison officials from acting

with “deliberate indifference to serious medical needs of prisoners.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976). “The test for deliberate indifference is both

objective and subjective.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

The subjective prong requires a plaintiff to “show that the defendants knew he faced

a substantial risk of harm and disregarded that risk, by failing to take reasonable

measures to abate it.” Id. at 1089. However, an inadvertent failure to provide

adequate medical care—even if it rises to the level of medical malpractice—does not

necessarily amount to a constitutional violation. Estelle, 429 U.S. at 105-06;

Martinez, 563 F.3d at 1088. Because we conclude infra that Fairbanks has failed to

satisfy the subjective prong, we do not consider whether he has satisfied the objective

prong.

         Fairbanks does not allege facts sufficient to demonstrate that any defendant

knowingly disregarded a substantial risk of harm. Fairbanks’ complaint does not

make any factual allegations against one state defendant. As to the other, the

complaint alleges he was aware of the prison’s poor quality medical treatment merely

because Fairbanks tried to speak to him about it, but prison officials prevented

Fairbanks from doing so. Fairbanks thus failed to allege that the state defendants

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were aware of his complaints of pain or of any risk therefrom, much less that they

demonstrated deliberate indifference to that risk.

      As to the Corizon defendants, the complaint alleges that in response to

Fairbanks’ complaints about pain and other symptoms, he was seen by doctors and

nurses on several occasions. X-rays were taken of his back and a number of

treatment options were pursued, including various pain medications, an elbow brace,

stretching exercises, and treatment for a vitamin D deficiency. Although Fairbanks

alleged that these efforts were unsuccessful and that he continued to have

excruciating pain, his allegations do not show that the Corizon defendants were

indifferent to his medical needs. Rather, the complaint shows that they took a variety

of measures to address his complaints. Even if he would have liked different pain

medication, an MRI, and a job change, Fairbanks makes no showing that the

measures pursued were unreasonable. Mere disagreement about the type of medical

care provided does not amount to a violation of the Eighth Amendment. Callahan v.

Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (prisoners do not have an Eighth

Amendment right to a particular course of treatment).

      Fairbanks also seeks leave to proceed in forma pauperis (“IFP”). To qualify

for IFP status, an appellant “must show a financial inability to pay the required filing

fees and the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991). We conclude that Fairbanks’ argument is wholly frivolous. We

thus deny IFP status.

                                           4
      The judgment of the district court is AFFIRMED. Fairbanks’ motion to

proceed IFP is DENIED, and he has now accumulated two “strikes” under 28 U.S.C.

§ 1915(g).


                                       Entered for the Court


                                       Carlos F. Lucero
                                       Circuit Judge




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