                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                 September 20, 2007
                                    TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 PA U L IN M A N ,

          Plaintiff - Appellant,
                                                         No. 07-1137
 v.                                           (D.C. No. 05-CV-2290-LTB-PAC)
                                                          (D . Colo.)
 JO ANN STOCK, L.C.F., Health Care
 Provider; DR. ANITA BLOOR,
 L.C.F., Health Care Supervisor,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Plaintiff-Appellant Paul Inman, a Colorado state prisoner appearing pro se,

appeals the district court’s dismissal of his complaint, which alleged that

Defendants-A ppellees Jo Ann Stock and Dr. Anita Bloor w ere deliberately

indifferent to his serious medical needs. The Defendants w ere sued in their



      *
        This order and judgment is not binding precedent, except under the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.
      **
         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.
individual and official capacities, and M r. Inman sought declaratory and

injunctive relief, as well as damages, pursuant to 42 U.S.C. § 1983. The

Defendants moved to dismiss M r. Inman’s claims, and the magistrate judge to

whom the case had been assigned recommended granting the motion. The district

court adopted the magistrate judge’s report and recommendation in part, and it

granted the motion to dismiss. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm.



                                    Background

       According to M r. Inman’s complaint, he slipped on an icy sidewalk and

injured his hand and knee on January 16, 2005. R. Doc. 11 at 4. He sought

immediate medical assistance, but he was told to submit a “kite” and wait to be

seen. Three days later, M r. Inman was examined by M s. Stock, a physician’s

assistant. H er notes indicate “[n]o bruising, swelling, erythema seen. No

abrasions, no deformity seen.” Aplt. Br. App. A. Nevertheless, M s. Stock

ordered an x-ray of M r. Inman’s hand and knee.

       Later that week, M r. Inman again requested medical attention for his

injuries. M s. Stock examined him a second time on January 24. Her notes from

this visit explain:

       PE reveals right hand is swollen, bruised, with abrasions over the
       knuckles. It was noted last week that there were no marks, swelling,
       or bruising on the hand. I think there has been further injury since

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      then. I will get another x-ray today to compare. He also has bruising
      over bridge of nose and under left eye, which was not there last
      week. I will also get an x-ray of the left orbit.

Id. App. B. Consistent with these notes, M s. Stock again ordered x-rays, which

revealed that M r. Inman had a fracture of his third metacarpal. Id. She also

prescribed several medications and referred M r. Inman to an orthopedic specialist.

Id.

      A third record indicates that M r. Inman was seen by an orthopedic surgeon

on February 14. Id. App. C. According to M s. Stock’s notes, the doctor

determined that the fracture had healed enough that no cast was necessary. Id.

H ow ever, M s. Stock also ordered that M r. Inman return to the doctor for a follow -

up visit in six weeks. Id.

      On November 10, 2005, M r. Inman filed this law suit seeking a declaratory

judgment that his Eighth Amendment rights had been violated, an injunction

requiring restorative medical care, nominal damages of $1.00 from each

defendant, and punitive damages. In his amended complaint, he alleges that the

delay between his injury and his examination by an orthopedic surgeon

constituted deliberate indifference to his serious medical needs, rendering him

“permanently disfigured” and causing him to suffer from “severe arthritis.” R.

Doc. 11 at 4.

      The magistrate judge to whom the case had been assigned determined that

the Eleventh Amendment barred any claims for declaratory relief and damages

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against the Defendants in their official capacities, and he recommended

dismissing those claims. I R. Doc. 33 at 3; W hite v. State of Colo., 82 F.3d 364,

366 (10th Cir. 1996). The magistrate judge next concluded that M r. Inman had

not properly exhausted his administrative remedies, and he recommended

dismissing the remaining claims on that basis. Alternatively, he determined that

qualified immunity barred M r. Inman’s individual capacity claims because he had

not alleged facts that, if proven, would constitute a constitutional violation, see

Kirkland v. St. Vrain Valley Sch. Dist., 464 F.3d 1182, 1187 n.2 (10th Cir. 2006)

(recognizing that qualified immunity applies to individual capacity claims), and

that the remaining claims for injunctive relief could not succeed because there

was no likelihood of success on the merits, I R. Doc. 33 at 8-9. Accordingly, the

magistrate judge recommended that all M r. Inman’s claims be dismissed.

      The district court rejected the recommendation that the case be dismissed

due to M r. Inman’s failure to exhaust, citing an intervening decision by the

Supreme Court. See R. Doc. 38 at 1 (citing Jones v. Bock, — U.S.— , 127 S. Ct.

910 (2007)). However, the court adopted the magistrate judge’s recommendation

to dismiss on the basis of qualified immunity. Id. at 2. M r. Inman filed a timely

appeal.



                                     Discussion

      At the outset, we note that the magistrate judge was plainly correct in

                                         -4-
determining that the official capacity claims seeking damages against the

Defendants were barred by Eleventh Amendment immunity, and that prospective

injunctive relief would be barred in the absence of a likelihood of success on the

merits, viz. establishing a constitutional violation. However, M r. Inman has

challenged the ruling that the Defendants are entitled to qualified immunity. W e

also believe that the magistrate judge and district court analyzed this question

correctly.

      W hen a plaintiff sues a state official in his or her individual capacity, the

defendant is entitled to qualified immunity unless his or her conduct violated a

clearly established constitutional right. Saucier v. Katz, 533 U.S. 194, 201

(2001). Once the defendant has asserted the defense of qualified immunity, the

plaintiff must carry a two-part burden: first, he must show that the facts alleged

amount to the violation of a constitutional right; second, he must show that the

right at issue was clearly established at the time of his alleged injury. Id. W e

review a dismissal based on qualified immunity de novo. Denver Justice & Peace

Comm., Inc. v. City of G olden, 405 F.3d 923, 927 (10th Cir. 2005).

      Here, the magistrate judge’s recommendation, adopted by the district court,

concluded that M r. Inman had failed to allege facts showing the violation of a

constitutional right. R. Doc. 33 at 6-8. A prison official violates the Eighth

Amendment’s prohibition against cruel and unusual punishment when he or she

acts w ith “deliberate indifference to serious medical needs of prisoners.” Estelle

                                         -5-
v. Gamble, 429 U.S. 97, 104 (1976). However, “a complaint that a physician has

been negligent in diagnosing or treating a medical condition does not state a valid

claim of medical mistreatment under the Eighth Amendment. . . . In order to state

a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful

to evidence deliberate indifference to serious medical needs.” Id. at 106

(emphasis added).

      “‘Deliberate indifference’ involves both an objective and subjective

component.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The

objective component requires that the medical need be “sufficiently serious,”

meaning “it is one that has been diagnosed by a physician as mandating treatment

or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Id. (quoting Hunt v. Uphoff, 199 F.3d 1220,

1224 (10th Cir. 1999)). The subjective component requires the plaintiff to show

that the defendant “kn[ew] of and disregard[ed] an excessive risk to inmate health

or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

      W e will assume (without deciding) that a broken bone in M r. Inman’s hand

is sufficiently serious to satisfy the objective inquiry. However, we agree with

the magistrate judge and the district court that M r. Inman has not alleged any

facts indicating that M s. Stock and Dr. Bloor were deliberately indifferent to his

injury. M s. Stock examined M r. Inman three days after his injury, ordered x-rays,

and determined that no other medical intervention appeared necessary. W hen his

                                         -6-
complaints persisted, she examined him for a second time five days later, again

ordered x-rays, and prescribed medication. She also arranged for him to be seen

by an orthopedic surgeon when the x-rays revealed a fractured metacarpal bone,

and she followed up with the orthopedic surgeon in order to continue providing

M r. Inman with appropriate care.

      Even assuming M s. Stock was negligent, the alleged negligence is not

sufficient to state a valid § 1983 claim against her or her supervising physician,

Dr. Bloor. Estelle, 429 U.S. at 106. “M edical decisions that may be

characterized as ‘classic examples of matters for medical judgment,’ such as

whether one course of treatment is preferable to another, are beyond the [Eighth]

Amendment’s purview .” Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir.

2006) (quoting Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996)). In other

words, “[m]edical malpractice does not become a constitutional violation merely

because the victim is a prisoner.” Estelle, 429 U.S. at 106.

      The judgment is AFFIRM ED. The motion to proceed without prepayment

of costs or fees is granted. M r. Inman is reminded of his continuing obligation to

make partial payments of the filing fee.


                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge

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