                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       October 12, 2005
                                 TENTH CIRCUIT
                                                                          Clerk of Court

 BOBBY YOUNG,

               Plaintiff-Appellant,                     No. 05-3072
          v.                                         District of Kansas
 KEITH WARREN, Doctor, Lansing                  (D.C. No. 04-CV-3415-GTV)
 Correctional Facility; DAVID R.
 MCKUNE, Warden, Lansing
 Correctional Facility; ROGER
 WERHOLTZ, Secretary of
 Corrections; PRISONER HEALTH
 SERVICES, INC.; (FNU) (LNU), Eye
 Doctor, Lansing Correctional Facility;
 STATE OF KANSAS,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.



      *
         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). This case is
therefore 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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. The 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.
      Mr. Bobby Young, proceeding pro se, filed suit pursuant to 42 U.S.C. §

1983 against Dr. Keith Warren, the warden of Lansing Correctional Facility, the

Secretary of Corrections, Prisoner Health Service, Inc., an unidentified eye

doctor, and the State of Kansas. Mr. Young’s complaint alleges that Dr. Warren

and the staff of the Lansing Correctional Facility (LCF) committed medical

malpractice and were deliberately indifferent to his medical condition when

treating a number of problems that developed with Mr. Young’s eyes during his

incarceration at LCF. For the following reasons, we conclude that the district

court properly dismissed Mr. Young’s complaint for failure to state a claim upon

which relief may be granted, and therefore AFFIRM the district court’s decision.

                                  I. Background

      As set forth in Mr. Young’s opening brief and attached exhibit, the facts

leading to the present appeal are as follows. On September 6, 2000, while

incarcerated at LCF, Mr. Young underwent surgery to remove bullet fragments in

his eye. Although Mr. Young alleges in his complaint that the fragments were

located in his left eye, the operation was performed on his right eye. During his

incarceration at LCF, Mr. Young was also diagnosed with cataracts. His vision

progressively degenerated, and in 2003 he was referred to an ophthalmologist at

the University of Kansas Medical Center (KUMC). The medical staff at KUMC

diagnosed Mr. Young with an ulcer in the right eye that was likely caused by

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bullet fragments and recommended surgical removal of the ulcer and cataracts.

On April 28, 2003, Mr. Young underwent a second surgery on his right eye that

removed the ulcer, cataracts, and blood vessel scarring from his right eye.

Following this surgery, Mr. Young received several postoperative follow-up visits

from the KUMC medical staff. It also appears that Mr. Young developed wet

age-related macular degeneration in 2003.

      Later that year Mr. Young was transferred to the El Dorado Correctional

Facility (EDCF), where he continued to seek medical care because of continuing

redness in his right eye. He claims he was told by the medical staff at EDCF that

the “macula was gone” from his right eye and that there was scar tissue in his

right eye. Subsequently, Mr. Young underwent an operation on his left eye to

remove cataracts.

      Mr. Young asserts that the September 2000 operation on his right eye was

improper because the bullet fragments were in his left eye, and this improper

operation on his right eye created scar tissue. Additionally, he asserts that while

he was incarcerated at LCF between 2000 and 2002 he was falsely led to believe

that his only medical condition was cataracts and the only treatment he received

was a change in the prescription of his glasses. Finally, he asserts that he was

never informed by the KUMC staff that his macula was gone or that there was

scar tissue in his right eye.


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      Based on the foregoing facts, Mr. Young alleges two constitutional

violations. First, he alleges a violation of the Eighth Amendment prohibition of

cruel and unusual punishment arising out of the September 2000 operation that

was improperly performed on his right eye, resulting in scarring and bleeding.

Second, he alleges that the medical staff at LCF was deliberately indifferent to his

medical needs when it allowed two years to elapse with no treatment other than a

change of glasses.

      Mr. Young filed a grievance with the Kansas Department of Corrections on

March 18, 2004, alleging similar issues to those raised here. Mr. Young also

brought this § 1983 action in federal court. The district court dismissed Mr.

Young’s suit for failure to state a claim upon which relief may be granted. In

addition to appealing the district court’s dismissal, Mr. Young also filed a

separate Request for Injunctive Relief with this Court.

                                   II. Discussion

      We review a district court’s dismissal of a claim pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) de novo. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806

(10th Cir. 1999). We accept as true the well-pleaded facts and allegations raised

in the complaint, and draw all reasonable inferences in favor of the plaintiff. See

Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

      In order to state a § 1983 claim, a plaintiff must “allege the violation of a



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right secured by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of state

law.” West v. Atkins, 487 U.S. 42, 48 (1988). We construe pleadings by a pro se

party proceeding in forma pauperis liberally, see Haines v. Kerner, 404 U.S. 519,

520 (1972) (per curiam), but we “will not supply additional factual allegations to

round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s

behalf,” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).

      A cause of action is stated under § 1983 for a violation of the Eighth

Amendment when a complaint evinces a “deliberate indifference to a prisoner’s

serious illness or injury” by prison officials. Estelle v. Gamble, 429 U.S. 97, 105

(1976). As we stated in Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999),

“[d]eliberate indifference has both an objective and subjective component.” The

objective component is satisfied when the medical condition complained of is

sufficiently serious, such that “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 Ramos v. Lamm,

639 F.2d 559, 575 (10th Cir. 1980)). The subjective component is satisfied when

the plaintiff establishes that the “defendant(s) knew [plaintiff] faced a substantial

risk of harm and disregarded that risk, ‘by failing to take reasonable measures to

abate it.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)).



                                          -5-
      Even accepting every allegation made by Mr. Young as true, we conclude

that his allegations fail to establish a claim of deliberate indifference by either Dr.

Warren or the LCF medical staff. It may be true that the September 2000

operation was performed on the incorrect eye, that Mr. Young’s medical condition

went improperly diagnosed for two years, and that as a result of the incorrect

operation his right eye became scarred and began bleeding. However, as we held

in Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999), a

“negligent failure to provide adequate medical care, even one constituting medical

malpractice, does not give rise to a constitutional violation.” The facts alleged in

the complaint demonstrate that Mr. Young’s eye problems repeatedly received

attention from the medical staff, including multiple operations and a referral to a

renowned university medical center. If mistakes were made, they were not the

result of neglect.

      Mr. Young’s claim that Dr. Warren committed medical malpractice is

directly foreclosed by our decision in Perkins. Even if his allegation is true, it

does not rise to the level of a constitutional violation. The district court correctly

held that this argument fails to state a claim under § 1983.

      Mr. Young’s claim that the LCF medical staff was deliberately indifferent

to his serious medical condition when it did nothing more than change his glasses

prescription from 2000 to 2002 similarly fails to state a constitutional claim. The



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complaint indicates that although he received medical treatment during this

period, such treatment was inadequate and contributed to his ongoing eye

problems. However, a mere disagreement over a course of medical treatment does

not give rise to a constitutional claim. See Ledoux v. Davies, 961 F.2d 1536,

1537 (10th Cir. 1992). Consequently, the district court properly dismissed this

argument for failing to state a claim.

        Because we conclude that neither issue raised by Mr. Young states a claim

of constitutional dimension, the judgment of the United States District Court for

the District of Kansas is AFFIRMED. Mr. Young’s separate request for

injunctive relief is DENIED.

        Appellant is reminded that he is obligated to continue making partial

payments toward the balance of his assessed fees and costs until they are paid in

full.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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