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

                           FOR THE TENTH CIRCUIT                      September 5, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOSEPH HOLT,

             Plaintiff−Appellant,

v.                                                         No. 13-1084
                                              (D.C. No. 1:11-CV-01615-PAB-MEH)
DR. KATHY MCBRIDE; JOICE                                    (D. Colo.)
CHRUNK, (HMS); DR. JOSEPH
WERMERS,

             Defendant−Appellees.


                            ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.


      Joseph Holt, a Colorado state prisoner proceeding pro se and in forma

pauperis, appeals the dismissal of his claim under 42 U.S.C. § 1983 alleging that

Joseph Wermers, a medical doctor at the San Carlos Correctional Facility

(San Carlos), was deliberately indifferent to his safety and medical needs. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
         Mr. Holt was originally housed at the Colorado Territorial Correctional

Facility (CTCF). In October 2006 he was placed on a lower bunk restriction because

of a diagnosis of idiopathic progressive polyneuropathy. In October 2007 he was

transferred to San Carlos. Dr. Wermers lifted the lower bunk restriction in November

2009, writing: “Per ADA/Montez1 no mobility or disability or necessary

accommodations. Unable to justify continuation of lower bunk provided as

temporary in 2006.” R. at 23. Mr. Holt returned to CTCF in January 2010. In

mid-March he fell from a top bunk and suffered a long, deep cut on the side of his

head.

         Mr. Holt sued under § 1983 for violation of his Eighth Amendment rights. He

alleged that in light of “the large quantity of med[ications] [he] was taking at the time

[the lower bunk restriction was discontinued] and his we[a]k physical condition,”

id. at 58, Dr. Wermers was deliberately indifferent to his safety and medical needs.2

Mr. Holt alleged that the medications that he was taking for his various medical

conditions, including his neuropathy, “enduce[d] sedation [] and heavy sleeping.” Id.

at 57.

1
      “ADA” refers to the Americans with Disabilities Act. “Montez” refers to the
ADA class-action suit filed by Colorado prisoners, Montez v. Owens, No. 92-CV-
00870, which resulted in a “Remedial Plan” to bring Colorado’s prison system into
compliance with the ADA.
2
       There were other defendants named in the suit but they have been dismissed.
Mr. Holt does not appeal those orders. Also, Mr. Holt asserted a conspiracy claim
against Dr. Wermers but does not challenge in his appellate briefs that portion of the
district court’s order dismissing the claim.

                                           -2-
       The magistrate judge recommended that Dr. Wermers’s motion to dismiss be

granted on the grounds of qualified immunity. After considering Mr. Holt’s

objections, the district court agreed that the motion should be granted but decided it

was “unnecessary . . . to determine whether [Dr. Wermers] is entitled to qualified

immunity” because Mr. Holt’s amended complaint “does not allege sufficient facts to

raise an Eighth Amendment claim.” Id. at 188.

       We review de novo the district court’s dismissal for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). See Casanova v. Ulibarri, 595 F.3d 1120, 1124

(10th Cir. 2010). To survive a Rule 12(b)(6) motion, a plaintiff’s well-pleaded

factual allegations must, when taken as true and viewed in the light most favorable to

the plaintiff, state a claim for relief “‘that is plausible on its face.’” Id. (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Because [Mr. Holt] is

proceeding pro se, we liberally construe his filings.” Id. at 1125.

       On appeal Mr. Holt frames the issues as Dr. Wermers’s “fail[ure] to

investigate enough to make a[n] informed judgment to justify taking me off the

bottom bunk,” Aplt. Opening Br. at 2, and a “[d]eliberate indifference to serious

medical needs,” id. at 3. In light of Mr. Holt’s pro se status, we construe his

arguments broadly to include both the failure to ensure his safety and the failure to

provide adequate medical care.

       The Eighth Amendment requires that “prison officials . . . ensure that inmates

receive adequate food, clothing, shelter, and medical care, and . . . take reasonable


                                            -3-
measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825,

832 (1994) (internal quotation marks omitted). For a prison official’s action to

violate the Eighth Amendment, two requirements must be met. First, the inmate must

be deprived of a serious need. See id. at 834 (“[T]he deprivation alleged must be,

objectively, sufficiently serious . . . [and] result in the denial of the minimal

civilized measure of life’s necessities.” (citations and internal quotation marks

omitted)). Second, the official must act with deliberate indifference to the inmate’s

health or safety. See id. A prison official acts with deliberate indifference when that

official “knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.” Id. at

837. “An official’s failure to alleviate a significant risk of [serious harm] of which

he was unaware, no matter how obvious the risk or how gross his negligence in

failing to perceive it, is not an infliction of punishment and therefore not a

constitutional violation.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008).

      We agree with the district court that Mr. Holt alleged sufficient facts to show a

risk of serious bodily harm by pleading that his medications “enduce[d] sedation[]

and heavy sleeping,” R. at 57, and he could fall from the top bunk. But his claim

fails for lack of pleading any knowledge on the part of Dr. Wermers that he was

aware of any such risk. To the contrary, Mr. Holt argued in his objections to the

magistrate judge’s recommendation that Dr. Wermers removed the lower bunk


                                          -4-
restriction “without conducting an[] interview or consulting with [him] to make sure

he had mentally and physically adapted to the various drugs he had been prescribed

in a positive manner.” Id. at 170. This undercuts any argument that Dr. Wermers

knew about the side effects of the medications and thus any risk of harm to Mr. Holt.

      To the extent that the amended complaint can be read to attempt to state a

claim for a failure to provide adequate medical care, that claim also fails. As stated

previously, deliberate indifference to a serious medical need involves both an

objective and subjective component. See Farmer, 511 U.S. at 834. The objective

component is met if the deprivation is “sufficiently serious.” Id. “A medical need is

sufficiently serious if 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.” Sealock v. Colorado, 218 F.3d 1205, 1209

(10th Cir. 2000) (internal quotation marks omitted). The subjective component is

met if a prison official knows of and disregards an excessive risk to an inmate’s

serious medical needs. See Farmer, 511 U.S. at 837.

      We acknowledge that Mr. Holt’s allegations that he was being treated for

neuropathy and an HIV infection establishes the existence of a serious medical

condition. But there are no allegations that prison medical staff failed to treat his

medical conditions. And even if the decision to lift the lower bunk restriction could

be considered a medical decision, there is no evidence that Dr. Wermers knew about

the side effects that Mr. Holt suffered from the medications. More to the point,


                                          -5-
Dr. Wermers’s alleged failure to determine the side effects does not give rise to an

Eighth Amendment claim. See Self v. Crum, 439 F.3d 1227, 1233 (10th Cir. 2006)

(“[N]egligent failure to provide adequate medical care, even one constituting medical

malpractice, does not give rise to a constitutional violation.” (internal quotation

marks omitted)).

       The judgment of the district court is affirmed. Mr. Holt’s motion for

injunction pending appeal is denied as moot. We also deny Mr. Holt’s motion to

obtain photographs and to appoint counsel. Mr. Holt’s motion to proceed in forma

pauperis is granted and he is reminded of his obligation to make partial payments

until the appellate filing fee has been paid in full.


                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




                                           -6-
