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

                             FOR THE TENTH CIRCUIT                       December 2, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
TOBIN DON LEMMONS,

      Plaintiff - Appellant,

v.                                                        No. 15-6075
                                                   (D.C. No. 5:13-CV-00494-D)
MICHAEL HOUSTON; JEFF TROUTT;                             (W.D. Okla.)
JANET DOWLING; KATRYNA FRECH;
GENESE McCOY; SAMMIE KENYON;
JAMES HOWARD; DR. SHRINER;
JOSEPH SMASH; DOES; CHERIAN
KARUNAPUZHA; LORI IRWIN;
GREGG BROOKS; KENYA SACKETT;
FELICIA HARRIS; ROBERT PATTON;
JUSTIN JONES, in his individual capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
                 _________________________________

      Tobin Don Lemmons, a state prisoner proceeding pro se, appeals from a

district court order granting summary judgment in favor of defendants

Drs. Karunapuzha and Troutt and dismissing the remainder of his claims against

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
numerous prison officials. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

I. Background

      This is Mr. Lemmons’s twelfth appeal to this court. His current action is

based primarily on allegations that the defendants acted with deliberate indifference

to his medical needs in violation of the Eighth Amendment by not providing proper

medication for his seizure disorders. He also alleges that defendants failed to

respond appropriately to his requests to staff and violated his federal constitutional

and statutory rights as well as state law.

      A magistrate judge issued three reports and recommendations pertinent to this

appeal. On February 2, 2015, the magistrate judge addressed Dr. Karunapuzha’s

motion for summary judgment and, based solely on the pleadings, determined that

Mr. Lemmons failed to state a claim against Dr. Karunapuzha under 42 U.S.C.

§ 1983. The magistrate judge also recommended dismissal without prejudice of

Mr. Lemmons’s state law claims against Dr. Karunapuzha.

      On February 3, 2015, the magistrate judge issued a supplemental report and

recommendation. Having additionally considered matters beyond the pleadings,

including an affidavit of Dr. Karunapuzha, he now recommended granting summary

judgment in favor of Dr. Karunapuzha. According to the magistrate judge,

undisputed facts supported the following version of events. Dr. Troutt, the facility

physician, referred Mr. Lemmons to Dr. Karunapuzha, a neurologist, for a

consultation regarding his seizures. Dr. Karunapuzha saw Mr. Lemmons only once

                                             2
and diagnosed him with two seizure disorders—psychogenic non-epileptic seizures

(or, “pseudoseizures”) and generalized tonic clonic seizures—and an anxiety

disorder. Mr. Lemmons reported to Dr. Karunapuzha that his pseudoseizures had

been kept under control with Klonopin in the past, but since being taken off it, his

pseudoseizures were occurring more frequently. Dr. Karunapuzha explained that

Klonopin was not prescribed for long-term management of seizures and

recommended that Mr. Lemmons receive other treatment for his pseudoseizures,

including psychological counseling and possibly medication to manage his anxiety

(which could be a trigger for his pseudoseizures).

      Mr. Lemmons told Dr. Karunapuzha that his generalized tonic clonic seizures

had been successfully controlled with gabapentin (also referred to by the brand name

“Neurontin”) for nearly the past two years. Dr. Karunapuzha did not recommend any

changes to Mr. Lemmons’s treatment for generalized tonic clonic seizures. Although

his report indicated that Mr. Lemmons was currently taking gabapentin, it did not

indicate whether or not he should continue to do so. Mr. Lemmons was later taken

off gabapentin at the direction of Dr. Troutt, which caused a recurrence of his

generalized tonic clonic seizures.

      The magistrate judge found nothing in the record to support the conclusion

that Dr. Karunapuzha had any authority over Mr. Lemmons’s treatment after the

one-time consultation or that Dr. Karunapuzha had a continuing duty to ensure

Mr. Lemmons received treatment that was consistent with his recommendations.



                                           3
Thus, the magistrate judge determined Mr. Lemmons had not averred facts that

would defeat Dr. Karunapuzha’s motion for summary judgment.

      The magistrate judge issued a third report and recommendation on

February 19, 2015, addressing a motion for summary judgment on behalf of the

remaining defendants. He recommended granting summary judgment in favor of all

the defendants except Dr. Troutt. The magistrate judge found that in light of

Mr. Lemmons’s history of seizures, withholding medication to control his seizures

posed an obvious and sufficiently serious risk of harm to warrant protection under the

Eighth Amendment. The magistrate judge stated that he could “think of no

explanation for Dr. Troutt’s actions other than his, either willfully or recklessly,

disregarding an excessive risk to Plaintiff’s health or safety.” R., Vol. 1, at 506.

      Mr. Lemmons timely objected to the February 2 and 3 reports; Dr. Troutt

timely objected to the February 19 report. Mr. Lemmons’s objection to the

February 19 report was not timely and was therefore stricken by the district court.

      The district court adopted the recommendation in the February 3 report and

granted summary judgment in favor of Dr. Karunapuzha. The court declined to adopt

the recommendations in the February 19 report as to Dr. Troutt but did adopt them as

to the other defendants. The district court concluded Dr. Troutt was entitled to

qualified immunity because Mr. Lemmons had not made any showing that Dr. Troutt

had acted with deliberate indifference to his medical needs. Therefore the court

granted summary judgment in favor of Dr. Troutt. Because Mr. Lemmons had not

timely objected to the February 19 report, the court dismissed the remaining federal

                                            4
claims and declined to exercise supplemental jurisdiction over the state law claims,

which it dismissed without prejudice.

       On appeal, Mr. Lemmons appears to argue that the district court erred by

striking his untimely objection to the February 19 report, by not adopting the

magistrate judge’s recommendation regarding his claim against Dr. Troutt, and by

declining to exercise pendent jurisdiction over his state law claims. To the extent he

attempts to raise other issues for the first time on appeal, he fails to argue that he

would be entitled to relief under the plain error standard of review, and we decline to

review such issues. See Martinez v. Angel Expl., LLC, 798 F.3d 968, 974 (10th Cir.

2015) (“We generally do not consider theories raised for the first time on appeal, and

because [the plaintiff] makes no argument how he can satisfy the plain error standard

of review, we go no further.”).

II. Untimely Objection

       Mr. Lemmons argues that the district court erred by not giving him enough

time to respond to the magistrate judge’s February 19 report. We are not persuaded.

       The magistrate judge’s February 19 report expressly advised Mr. Lemmons he

had until March 9, 2015, to object, otherwise he would waive the right to appellate

review of its factual and legal determinations. Mr. Lemmons does not contend that

he was uninformed about the deadline or its significance. On February 24, the

district court granted Mr. Lemmons’s motion for an extension of time to respond to

the February 2 and 3 reports and sua sponte extended the deadline for responding to

the February 19 report. The court stated it would not grant any further extensions

                                             5
and that objections to all three reports were due by March 16. Mr. Lemmons

objected to the February 2 and 3 reports by March 16, but he did not file an objection

to the February 19 report until March 27. The district court struck it as untimely.

      This circuit has adopted a firm waiver rule under which the failure to object to

the magistrate judge’s findings or recommendations waives appellate review of both

factual and legal questions. Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.

2004). Here, Mr. Lemmons was specifically advised of both the time period for

objecting and the consequences of failing to do so. See Duffield v. Jackson, 545 F.3d

1234, 1237 (10th Cir. 2008). The deadline had already been extended once, and

Mr. Lemmons did not timely request a further extension. Nor does he argue that the

“interests of justice” exception applies here. Cf. id. at 1238. We discern no error.

To the extent Mr. Lemmons asserts that the district court should have granted his

untimely motion for an extension, we find no abuse of the court’s discretion. See id.

at 1240.

III. Summary Judgment in Favor of Dr. Troutt

      Mr. Lemmons argues that the district court erred by granting summary

judgment in favor of Dr. Troutt. We disagree.

      We review de novo a grant of summary judgment on the basis of qualified

immunity, viewing the record in the light most favorable to the nonmoving party.

Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005). We construe a pro se party’s

pleadings liberally. Hammons v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003).



                                           6
      “When a defendant asserts qualified immunity at summary judgment, the

burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional

right and (2) the constitutional right was clearly established.” Martinez v. Beggs,

563 F.3d 1082, 1088 (10th Cir. 2009). The Eighth Amendment 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, 563 F.3d at 1088. The

objective component requires that the harm be sufficiently serious to implicate the

Eighth Amendment, and for the purpose of resolving this appeal, we assume that the

harm alleged by Mr. Lemmons rises to that level.

      “The subjective prong of the deliberate indifference test requires the plaintiff

to present evidence of the prison official’s culpable state of mind.” Mata, 427 F.3d

at 751. A plaintiff may prevail on this component by showing that the defendant

knew he faced a substantial risk and disregarded that risk by failing to take measures

to abate it. Martinez, 563 F.3d 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;

Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006). Thus, Mr. Lemmons was

required to provide evidence supporting an inference that Dr. Troutt knew about and

disregarded a substantial risk of harm to his health and safety. See Mata, 427 F.3d

at 752.



                                            7
      Mr. Lemmons has adduced no evidence Dr. Troutt disregarded the risk posed

by his seizure disorders. The record shows Dr. Troutt saw Mr. Lemmons multiple

times and twice referred him to neurologists. Cf. id. at 758-59 (concluding that

evidence of a nurse’s complete refusal to assess or diagnose inmate’s medical

condition could amount to deliberate indifference so as to defeat summary judgment

in her favor). The first neurologist, Dr. Karunapuzha, recommended Mr. Lemmons

be referred to psychiatric services and psychological counseling to better manage his

pseudoseizures. Those referrals were made. Dr. Karunapuzha did not make a

recommendation one way or the other with respect to keeping Mr. Lemmons on

gabapentin, so there is no evidence to support the inference that Dr. Troutt

subjectively believed weaning Mr. Lemmons off gabapentin would be contrary to

Dr. Karunapuzha’s recommendations. Rather, Dr. Troutt’s notes indicate that he

made a good faith effort to devise a treatment plan based upon and consistent with

the neurologist’s recommendations. See id. at 760-61 (concluding that another nurse

was entitled to qualified immunity in part because her statements and notes

demonstrated she subjectively believed the inmate was not suffering from a serious

medical condition). Further, regardless of Mr. Lemmons’s repeated requests to be

put back on gabapentin, the Eighth Amendment does not give him a right to a

particular course of treatment. See Callahan, 471 F.3d at 1160.

      Eight months after Mr. Lemmons saw Dr. Karunapuzha, Dr. Troutt referred

him to a second neurologist, who recommended restarting gabapentin. Soon

afterward, Dr. Troutt again prescribed gabapentin. Though the record also supports

                                           8
the conclusion that Dr. Troutt may have misread Dr. Karunapuzha’s diagnosis and

misdiagnosed generalized tonic clonic seizures as pseudoseizures, Mr. Lemmons

adduces no evidence that Dr. Troutt was aware of these alleged mistakes. “A

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

malpractice, does not give rise to a constitutional violation.” Perkins v. Kan. Dep’t

of Corrs., 165 F.3d 803, 811 (10th Cir. 1999). Because the record does not

demonstrate Dr. Troutt acted with deliberate indifference toward Mr. Lemmons’s

medical needs, the district court properly concluded he was entitled to qualified

immunity.

IV. Pendent Jurisdiction

      Mr. Lemmons argues the district court erred by declining to address issues

related to his state law claims. However, “supplemental jurisdiction is not a matter

of the litigants’ right, but of judicial discretion.” Estate of Harshman v. Jackson

Hole Mtn. Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004); see 28 U.S.C.

§ 1367(c)(3). After the district court resolved the claims against Drs. Karunapuzha

and Troutt, it dismissed Mr. Lemmons’s remaining claims. This was consistent with

the magistrate judge’s recommendations, and we discern no abuse of the court’s

decision.

V. Conclusion

      The judgment is affirmed. Mr. Lemmons’s motion for leave to proceed

without prepayment of fees pursuant to 28 U.S.C. § 1915 is granted, and he is



                                           9
reminded of his continued obligation to make partial payments until the filing fee is

paid in full.


                                           Entered for the Court

                                           Gregory A. Phillips
                                           Circuit Judge




                                          10
