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

                             FOR THE TENTH CIRCUIT                      December 19, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
EUGENE H. MATHISON,

      Plaintiff - Appellant,

v.                                                         No. 17-1165
                                               (D.C. No. 1:14-CV-03345-RM-STV)
CHRISTOPHER WILSON, D.O.;                                   (D. Colo.)
RONALD CAMACHO, P.A., M.L.P.;
MARK KELLAR, R.N., Health Services
Admin.; D. ALLRED, D.O., Clinical
Director; GEORGE SANTINI, M.D.; FIVE
JOHN/JANE DOES,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

      Plaintiff Eugene H. Mathison, a federal prisoner proceeding pro se, appeals the

district court’s grant of summary judgment dismissing his Bivens complaint alleging

the Defendants denied him medical treatment for his knee pain in violation of his

Eighth Amendment rights. All of the Defendants are officials of the United States


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Bureau of Prisons (BOP) at the Federal Prison Camp in Florence, Colorado, where

Plaintiff was incarcerated. The district court, adopting the magistrate judge’s report

and recommendation (R&R), ruled the undisputed evidence demonstrated that the

Defendants did not knowingly disregard a substantial risk to Plaintiff’s health. We

affirm.

      I. Background.

      We only briefly summarize the medical record, which is accurately set out in

the R&R. On December 8, 2011, Plaintiff went to sick call complaining that he had

pain and swelling in his left knee for a month. Defendant Ronald Camacho, a

physician’s assistant, examined Plaintiff and ordered an x-ray. The x-ray report

stated Plaintiff had a loss of joint space in the middle of his knee. Camacho and

defendant Christopher Wilson, the acting Clinical Director at Florence, treated

Plaintiff’s knee pain throughout 2012 and 2013. Camacho and Wilson gave Plaintiff

steroid or anti-inflammatory injections in his knee in January, April, October, and

November of 2012. Plaintiff’s knee pain was severe enough that he sometimes could

not walk to the chow hall or to church, and was advised not to walk on the outside

track or use the exercise machines.

      In July 2012, Wilson notified Plaintiff that Florence’s Utilization Review

Committee (URC) denied Plaintiff a consultation with an orthopedic specialist, but

would allow an evaluation by a mid-level provider. Plaintiff’s knee pain worsened in

October 2012, and Camacho ordered another x-ray. Wilson reviewed the x-ray in

November, noting moderate to severe degenerative joint disease. Wilson and

                                           2
Camacho consistently prescribed Plaintiff Indomethacin, a nonsteroidal, anti-

inflammatory drug (NSAID), for his knee from October 2012 until his 2014 release.1

       At the end of March 2013, Plaintiff wrote to defendant Mark Kellar,

Florence’s Health Services Administrator, and defendant David Allred, Florence’s

Clinical Director, to ask why his requests to see an orthopedic surgeon were denied.

He stated that he was repeatedly going to sick call for his knee pain, and the steroid

injections afforded him only temporary pain relief. Kellar told Plaintiff to continue

the sick call procedures, and he, along with defendant George Santini, M.D.,

examined Plaintiff a week later, on April 4, 2013. They ordered an x-ray, which

showed Plaintiff had stable, moderate degenerative joint disease, and they submitted

a request for an orthopedic consultation, which the URC approved on April 18, 2013.

      Plaintiff was seen by an orthopedic surgeon in private practice in June 2013,

who determined Plaintiff had a meniscus tear and arthritis; recommended arthroscopy

to repair the tear; and opined Plaintiff would eventually need arthroplasty—knee

replacement. In July 2013, Dr. Santini recommended that Plaintiff have an

arthroscopy consultation, and he submitted a request to that effect to the URC in

September 2013. For unexplained reasons, that request was not acted upon. When

Dr. Santini next examined Plaintiff in December 2013, he discovered his request to

URC had somehow been discontinued, and he immediately re-submitted the request

      1
         Plaintiff suggests in his brief that prescribing NSAIDs, including
Indomethacin, resulted in low hemoglobin levels and related complications. But as
the district court explained, Plaintiff’s complaint does not assert an Eighth
Amendment deliberate indifference claim based upon the allegedly improper
prescription of NSAIDs.
                                           3
for arthroscopy surgery. On December 18, 2013, URC referred that request to the

BOP Regional Office for final approval. Plaintiff was released on January 8, 2014,

before the surgery was scheduled. An x-ray in July 2014, showed that Plaintiff had

advanced bone-on-bone degeneration in his knee. Plaintiff had replacement knee

surgery in July 2014, after which he was able to walk without assistance.

      Plaintiff filed suit against the Defendants under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which “provides a private

action for damages against federal officers who violate certain constitutional rights.”

Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (internal quotation marks

omitted).2 He alleges that the Defendants violated his Eighth Amendment rights by

being deliberately indifferent to his knee pain. The parties filed cross-motions for

summary judgment, and the district court granted the Defendants’ motion, and denied

Plaintiff’s. It ruled that Plaintiff failed to show the Defendants knew of and

disregarded an excessive risk to his health and safety. Thus, the Defendants were

entitled to qualified immunity, which protects government officials from “liability for

the performance of their discretionary functions when their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (internal

quotation marks omitted).



      2
        Plaintiff voluntarily dismissed a federal tort claim for medical malpractice.
He also filed suit against unnamed Doe defendants but does not challenge the district
court’s dismissal of those claims.
                                           4
      II. Discussion.

      “We review a grant of summary judgment de novo, drawing all reasonable

inferences and resolving all factual disputes in favor of the non-moving party.” Birch

v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (internal quotation

marks omitted). “A court shall grant summary judgment if ‘the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

      The Eighth Amendment prohibits deliberate indifference to an inmate’s serious

medical needs. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). This

prohibition contains an objective and a subjective component. Id. The objective

component is met if the deprivation involves a sufficiently serious medical need, and

the subjective component is met if a prison official knowingly disregards an

excessive risk to an inmate’s health or safety. Id. The district court ruled that

Plaintiff’s knee pain was a sufficiently serious medical need to meet the objective

component, and the Defendants do not challenge that ruling.

      The district court ruled that Plaintiff failed to present evidence that would

satisfy the subjective component, and Plaintiff argues on appeal that was error. He

argues his evidence shows the Defendants delayed treatment for his knee pain, which

is sufficient to satisfy the subjective component.

      We agree with the district court’s disposition of this case. “Delay in medical

care can only constitute an Eighth Amendment violation if there has been deliberate

indifference which results in substantial harm.” Olson v. Stotts, 9 F.3d 1475, 1477

                                           5
(10th Cir. 1993) (brackets and internal quotation marks omitted). Plaintiff is correct

that our court has held that substantial harm includes “lifelong handicap, permanent

loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001);

see also Mata v. Saiz, 427 F.3d 745, 755 (10th Cir. 2005) (holding that “[a] prisoner

may satisfy the subjective component by showing that defendants’ delay in providing

medical treatment caused either unnecessary pain or a worsening of [his] condition”).

But we have also held that “not every twinge of pain suffered as the result of delay in

medical care is actionable.” Sealock, 218 F.3d at 1210. The level of pain required to

satisfy the substantial-harm requirement is imprecise. In Mata, we held that delayed

treatment for severe chest pain consistent with a heart attack, resulting in permanent

heart impairment, was actionable. 427 F.3d at 755. By contrast, in Olson we held

that an inmate’s pain in the months before a scheduled heart procedure was not

actionable because the doctor was able to alleviate the condition non-surgically and

to administer medication. 9 F.3d at 1477.

      The facts here are closest to Olson. The undisputed evidence shows that all

the Defendants provided prompt, ongoing, and continuous treatment for Plaintiff’s

pain, giving him multiple steroid injections and NSAIDS to alleviate his immediate

pain, as well as frequent examinations and x-rays; a consultation with an orthopedic

surgeon outside the prison; and a request that he be approved for knee surgery to

alleviate his ongoing pain.

      Moreover, to establish the subjective component, the plaintiff must also show

the defendant had a “sufficiently culpable state of mind,” Self v. Crum, 439 F.3d

                                            6
1227, 1231 (10th Cir. 2006) (internal quotation marks omitted); that is, that the

Defendants “knew [Plaintiff] faced a substantial risk of harm and disregarded that

risk, by failing to take reasonable measures to abate it,” Hunt v. Uphoff, 199 F.3d

1220, 1224 (10th Cir. 1999) (internal quotation marks omitted). In Mata, for

example, prison officials failed to “contact the appropriate medical personnel, and/or

attempt to assist [the inmate] in any fashion.” 427 F.3d at 758. But an inadvertent

failure to provide adequate medical care or a negligent diagnosis “fail[s] to establish

the requisite culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 297 (1991);

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[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.”). The “subjective component is

not satisfied, absent an extraordinary degree of neglect, where a doctor merely

exercises his considered medical judgment.” Self, 439 F.3d at 1232.

      We agree with the district court that the evidence does not support an inference

that any of the Defendants were deliberately indifferent to Plaintiff’s knee pain.

Rather, the evidence shows they continuously responded to the risk by treating his

pain with injections and medication, x-rays, an outside consultation and a request for

surgery. Plaintiff’s evidence indicates that he was provided, rather than denied,

medical attention every time he went to sick call. While Plaintiff believes his knee

condition required additional treatment from the Defendants and surgery should have

been immediately requested and scheduled, an inference of deliberate indifference

cannot be drawn simply because the prisoner “disagrees with a diagnosis or a

                                           7
prescribed course of treatment,” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811

(10th Cir. 1999). An inmate has a constitutional right only to medical care—“not to

the type or scope of medical care which he personally desires.” Henderson v. Sec’y

of Corr., 518 F.2d 694, 695 (10th Cir. 1975) (internal quotation marks omitted).

Plaintiff’s evidence that there were delays in obtaining approval for an outside

consultation and for surgery do not show that any of the Defendants were deliberately

indifferent to his pain. When, as here, medical personnel “orders treatment

consistent with the symptoms presented and then continues to monitor the [inmate’s]

condition, an inference of deliberate indifference is unwarranted under our case law.”

Self, 439 F.3d at 1232–33.

      We affirm the district court’s judgment for substantially the reasons stated in

its order dated May 10, 2017 and in the magistrate judge’s R&R dated February 28,

2017. We grant Plaintiff’s motion to proceed IFP and remind him that he must

continue making partial payments until the entire fee has been paid.


                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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