                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 30 2003
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 CEDRIC BERNARD JACKSON,

               Plaintiff - Appellant,

          v.                                            No. 03-1260
                                              (D. Ct. No. 01-MK-1849 (OES))
 BETHZAIDA SERRANO CLOWERS,                              (D. Colo.)
 M.D.,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY, and McCONNELL, Circuit
Judges.


      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)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      Plaintiff-Appellant Cedric Bernard Jackson, a federal prisoner, brought suit

under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403


      *
       This order and judgment is not binding precedent, except under the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.
U.S. 388 (1971), against Defendant-Appellee Bethzaida Serrano Clowers, M.D.,

alleging that Dr. Clowers violated his Eighth Amendment rights by showing

deliberate indifference to his skin rash. The district court granted Dr. Clowers’s

motion for summary judgment based on qualified immunity. We take jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.

                                  I. Background

      While incarcerated in the United States Penitentiary in Florence, Colorado,

Mr. Jackson acquired a skin condition that caused a rash and extreme itchiness.

The following chronology of his condition’s treatment forms the basis for Mr.

Jackson’s claim.

      On December 11, 2000, Mr. Jackson notified a physician’s assistant of his

condition. The physician’s assistant examined him that day but prescribed no

treatment. Mr. Jackson then wrote to Dr. Clowers on December 17 and 18, 2000,

seeking her evaluation of his condition. Dr. Clowers examined Mr. Jackson on

December 19, 2000, and prescribed a treatment.

      Less than a week later, Mr. Jackson wrote Dr. Clowers and the physician’s

assistant, informing them that the itchiness had not subsided. After referring Mr.

Jackson to the chronic care clinic, Dr. Clowers again examined him on January 4,

2001. She recommended a new course of treatment involving special soap and

lotion, available from the commissary, and the use of clean towels every other


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day. On February 4, 2001, Mr. Jackson wrote to Dr. Clowers stating that his

commissary restriction prevented him from obtaining the special lotion and soap

that she prescribed. Dr. Clowers replied that she had no control over his access to

the commissary, recommending that he bring the issue to the attention of his case

manager.

      About two weeks later, Mr. Jackson sought to report for sick call. When a

staff member looked into his cell to process his request, Mr. Jackson began

masturbating in front of her. The sick call was terminated. During the

disciplinary proceedings following this incident, Mr. Jackson did not offer an

explanation for his conduct. Rather, he offered the hearing officer a series of

expletives.

      On March 29, 2001, Dr. Clowers attempted to examine Mr. Jackson for his

skin condition once again. Mr. Jackson’s argumentative behavior prevented Dr.

Clowers from completing the exam. Approximately a week later, Dr. Clowers

again examined Mr. Jackson for his skin condition; diagnosed it as atopic

dermatitis; and prescribed the same soap, lotion, and towel treatment. When Mr.

Jackson complained the following week of his difficulty in purchasing the soap

and lotion from the commissary, penitentiary staff notified him that he could

obtain these items from the commissary.

      In early May 2001, penitentiary staff placed Mr. Jackson in the secured unit


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of the penitentiary. This unit lacks the self-adjusting water temperature controls

in the showers that exist in the penitentiary’s general housing units. On May 17,

2001, Mr. Jackson complained that the water temperature of these showers

aggravated his skin condition. Penitentiary officials took no action, however,

because they released Mr. Jackson from the secured unit on the same day.

      Between January 16 and July 27, 2001, Mr. Jackson sought medical

attention no fewer than six times for a variety of ailments unrelated to his skin

rash. In these instances, he never complained about or even referenced his skin

condition.

      On September 17, 2001, Dr. Clowers examined Mr. Jackson for his skin

condition for the final time. Dr. Clowers prescribed a pharmaceutical treatment

for Mr. Jackson and provided him with literature regarding his condition.

      Mr. Jackson then filed this pro se suit under Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Dr.

Clowers showed deliberate indifference to his skin condition in violation of the

Eighth Amendment to the Federal Constitution. Mr. Jackson moved for summary

judgment. Dr. Clowers, arguing that she was entitled to qualified immunity, filed

a cross-motion for summary judgment. Following a recommendation by the

magistrate judge, the district court, upon de novo review, granted Dr. Clowers’s

summary judgment motion and denied Mr. Jackson’s motion. This appeal


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followed.

                                     II. Discussion

A.     Standard of Review

       We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court. Byers v. City of

Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence, and

draw reasonable inferences therefrom, in the light most favorable to the

nonmoving party. Byers, 150 F.3d at 1274. Finally, because Mr. Jackson

proceeds pro se, we liberally construe his briefs and pleadings.      See Haines v.

Kerner , 404 U.S. 519, 520 (1972) (per curiam).

B.     Qualified Immunity

       Dr. Clowers based her motion for summary judgment on qualified

immunity. Qualified immunity provides a defense against a          Bivens action. See

Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982).       Qualified immunity is “an

entitlement not to stand trial or face the other burdens of litigation.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985).


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       To determine whether a plaintiff can overcome a qualified immunity

defense, we first “determine whether the plaintiff has asserted a violation of a

constitutional or statutory right, and then we decide whether that right was clearly

established such that a reasonable person in the defendant’s position would have

known that [his] conduct violated that right.” Garramone v. Romo, 94 F.3d 1446,

1449 (10th Cir. 1996). Order is important; we must decide first whether the

plaintiff has alleged a constitutional violation, and only then do we proceed to

determine whether the law was clearly established. Saucier v. Katz, 533 U.S. 194,

201 (2001). “A court required to rule upon the qualified immunity issue must

consider, then, this threshold question: Taken in the light most favorable to the

party asserting the injury, do the facts alleged show the officer’s conduct violated

a constitutional right?”   Id. We find that they do not.

       Prison officials violate a prisoner’s Eighth Amendment rights “when they

are deliberately indifferent to the serious medical needs of the prisoners in their

custody.” Oxendine v. Kaplan , 241 F.3d 1272, 1276 (10th Cir. 2001) (citing

Estelle v. Gamble , 429 U.S. 97, 104-05 (1976)). Deliberate indifference claims

“involve both an objective and a subjective component, such that we must

determine both whether the deprivation is sufficiently serious and whether the

government official acted with a sufficiently culpable state of mind.”   Id. (internal

quotations omitted).


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       A mere “negligent failure to provide adequate medical care, even one

constituting medical malpractice, does not give rise to a constitutional violation.”

Perkins v. Kansas Dept. of Corrections      , 165 F.3d 803, 811 (10th Cir. 1999).

Further, a prisoner’s disagreement with a diagnosis or a prescribed course of

treatment does not constitute an Eighth Amendment violation.            Ledoux v. Davies ,

961 F.2d 1536, 1537 (10th Cir. 1992). The conduct need not occur, however, “for

the very purpose of causing harm or with knowledge that harm will result” to

satisfy the deliberate indifference standard.         Farmer v. Brennan , 511 U.S. 825,

835 (1994).

       Based on the chronology of his skin treatments outlined above, Mr. Jackson

argues that Dr. Clowers was deliberately indifferent to his medical needs.

Although Mr. Jackson concedes that he received medical treatment, he argues that

the infrequency and ineffectiveness of Dr. Clowers’s treatments constitute

deliberate indifference. We disagree.

       Even viewed in the light most favorable to Mr. Jackson         , the record does not

support the conclusion that Mr. Jackson suffered a sufficiently serious deprivation

of medical care.   See Oxendine , 241 F.3d at 1276. Over the course of ten months,

as outlined above, Mr. Jackson made numerous requests for medical attention.

Excepting times when Mr. Jackson’s own behavior stifled their efforts, Dr.

Clowers and the penitentiary medical staff swiftly responded with good-faith


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efforts to treat his ailments. Even if the allegedly inadequate treatments caused

Mr. Jackson’s skin condition to recur persistently, these facts would, at best,

support a medical malpractice claim. Such a claim cannot be brought as a    Bivens

action. Perkins , 165 F.3d at 811. Therefore, we hold that the record in this case,

viewed in the light most favorable to Mr. Jackson, does not support an Eighth

Amendment violation.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the ruling of the district court.

Additionally, we GRANT Mr. Jackson’s motion to pay this Court’s filing fee in

partial payments and remind Mr. Jackson that he must continue to make partial

payments until the entire filing fee has been paid.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Chief Circuit Judge




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