                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 21 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    STANLEY P. JURGEVICH,

                Plaintiff-Appellant,

    v.                                                   No. 02-1291
                                                     (D.C. No. 01-M-2032)
    WALTER McGARY, Chief Medical                           (D. Colo.)
    Officer DOC; ORVILLE NEUFELD;
    DON LAWSON, Chief Pharmacy
    Officer, DOC; JUDITH M.
    LENHART, Vice Pres. Operations,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , HENRY , and MURPHY , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. 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.
       Plaintiff Stanley P. Jurgevich, a Colorado prisoner proceeding pro se,

appeals from the grant of summary judgment in favor of defendants in his civil

rights suit brought under 42 U.S.C. § 1983. The district court concluded that

summary judgement was proper because none of the named defendants were

personally involved in the incident leading to the suit.   We affirm.


                                              I.

       Plaintiff’s complaint stems from his attempts to obtain relief from heel

spurs. The dispute came to a head after plaintiff’s podiatrist requested surgery on

March 22, 2001. That request was twice denied by Colorado Access, which has

a contract with the Colorado Department of Corrections to act as a third party

administrator to manage the health services provided to inmates. Colorado

Access ultimately approved the surgery on September 12, 2001, but plaintiff did

not undergo surgery until October 22, 2001. In the interim, plaintiff sued.

       Plaintiff’s original complaint named defendants McGary, Neufeld, Lawson,

and Lenhart, and alleged the following:

       Claimant’s 8th Amendment right against Cruel and Unusual
       Punishment has been and is being violated, to wit: Despite the fact
       that two doctors have diagnosed the Claimant as having a recognized
       medical condition that needs surgery to correct, the Defendants have
       denied said treatment. Further, Defendant’s [sic] have also denied
       any stop-gap measures to alleviate the Claimant’s continuous pain
       and discomfort. This has been going on for years now.



                                             -2-
R., doc. 3 at 3. Plaintiff included documentation of his attempts to rectify the

problem through the prison grievance procedure. Those documents alleged

significant pain due to a denial of adequate or effective treatment for

approximately four years.

      On February 1, 2002, defendants filed their motion for summary judgment.

The same day, plaintiff filed a motion to amend his pro se complaint to name

three additional defendants. The district court struck that motion for failure to

comply with Fed. R. Civ. P. 15 and for failure to state sufficient claims against

the new defendants. On March 7, 2002, plaintiff filed a second motion to amend,

naming five additional defendants and including a more detailed recitation of

factual allegations. As stated by plaintiff, the amendment was only necessary to

rectify his mistake in initially identifying the proper parties; his claims

concerning the new defendants “ar[o]se of the same conduct, transaction or

occur[r]ence as set forth in the original pleading.” R., doc. 23 at 3.

      By order dated March 12, 2002, the district court deferred ruling on

plaintiff’s motion, pending the court’s decision on summary judgment. The

district court ultimately granted defendants’ motion, correctly ruling that the

original defendants had no personal involvement in the alleged delay of medical

treatment. See Coleman v. Turpen,     697 F.2d 1341, 1346 n.7 (10th Cir. 1982)

(holding that a defendant cannot be liable under § 1983 unless personally


                                          -3-
involved in the deprivation).   1
                                    The district court then dismissed plaintiff’s action

with prejudice without ruling on his motion to amend. Plaintiff filed a timely

motion to alter or amend the judgment under Fed. R. Civ. P. 59, requesting the

district court to reinstate his amended complaint naming the proper parties. The

district court denied that motion summarily, and this appeal followed.


                                             II.

       We review the grant of summary judgment de novo, applying the same

standard the district court applied under Federal Rule 56(c).       O’Toole v. Northrop

Grumman Corp., 305 F.3d 1222, 1225 (10th Cir. 2002). Summary judgment is

warranted “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “An issue of fact is

‘material’ if under the substantive law it is essential to the proper disposition of

the claim.”   Adler v. Wal-Mart Stores, Inc.,      144 F.3d 664, 670 (10th Cir. 1998).

“[A]n issue of material fact is genuine only if the nonmovant presents facts such

that a reasonable jury could find in favor of the nonmovant.”        Simms v. Okla.

ex rel. Dep’t of Mental Health & Substance Abuse Servs.,        165 F.3d 1321, 1326


1
      Despite her designation as a defendant on the district court’s docket sheet,
Judith Lenhart was never served and never appeared before the court in this case.

                                             -4-
(10th Cir. 1999). If the movants carry their initial burden of a prima facie

demonstration of the absence of a genuine issue of material fact and entitlement

to judgment as a matter of law, “the nonmovant . . . may not simply rest upon

[his] pleadings; the burden shifts to the nonmovant to go beyond the pleadings

and ‘set forth specific facts’ that would be admissible in evidence in the event of

trial from which a rational trier of fact could find for the nonmovant.”      Adler,

144 F.3d at 671. Because plaintiff appears pro se, his pleadings must be

construed liberally.   Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).


                                            III.

       On appeal, plaintiff argues that the district court should have allowed him

to amend his complaint to add those defendants that allegedly had direct

involvement in delaying plaintiff’s medical treatment. Rule 15(a) states that

“[a] party may amend the party’s pleading once as a matter of course at any time

before a responsive pleading is served.” Fed. R. Civ. P. 15(a). After that, the

party may amend only by leave of the court or by written consent of the adverse

party. Id. The right to amend is never absolute, however, as a district court may

deny a motion to amend if the court concludes that the amendment would be

futile. Foman v. Davis, 371 U.S. 178, 182 (1962).

       Nevertheless, it is error for the district court to deny a motion to amend

without supplying a justification.    Fed. Ins. Co. v. Gates Learjet Corp.,    823 F.2d

                                             -5-
383, 387 (10th Cir. 1987). Indeed, the Supreme Court has stated that “outright

refusal to grant the leave without any justifying reason appearing for the denial is

not an exercise of discretion; it is merely abuse of that discretion and inconsistent

with the spirit of the Federal Rules.”    Foman, 371 U.S. at 182.

       In this case, plaintiff filed two motions to amend. The district court struck

the first motion for failure to comply with Rule 15 and because it “fail[ed] to state

sufficient claims against the defendants sought to be added.” R., doc. 19 at 1.

This was proper as plaintiff’s motion relied on nonspecific and conclusory

allegations to implicate each of the three additional defendants.   See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[C]onclusory allegations

without supporting factual averments are insufficient to state a claim on which

relief can be based.”).

       The district court deferred ruling on the second motion to amend until

it ruled on defendant’s motion for summary judgment. When it ruled on the

summary judgment motion, however, it did not mention the outstanding motion to

amend. Moreover, when presented with plaintiff’s Rule 59 motion requesting the

district court to reinstate his complaint as amended, the court denied that motion

summarily. Under Rule 15, a plaintiff has a right to amend his complaint once

as a matter of course before defendant has filed and served a responsive pleading.

A motion for summary judgment, like a motion to dismiss, is not considered to be


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a “responsive pleading” and therefore does not cut off a plaintiff’s right to amend

without leave of court.      See Brever v. Rockwell Int’l Corp.,   40 F.3d 1119, 1131

(10th Cir. 1994) (“Because defendants’ motions to dismiss or for summary

judgment were not responsive pleadings, [plaintiff] could have amended her

complaint prior to dismissal without requesting or receiving leave of the court.”);

see also Zaidi v. Ehrlich,    732 F.2d 1218, 1219-20 (5th Cir. 1984) (holding that a

motion for summary judgment is not a responsive pleading). Therefore, plaintiff

should have been allowed to amend his complaint, subject only to the district

court’s reasoned determination that the proposed amendment would be futile.

The court made no such determination, and therefore erred in summarily denying

plaintiff’s motion.

       “Although, as a general rule, the district court must give a reason for its

refusal [to allow amendment], failure to state a reason can be harmless error

where the reason is apparent.”       Pallottino v. City of Rio Rancho,   31 F.3d 1023,

1027 (10th Cir. 1994) (quotation and citation omitted). As we have previously

noted, a district court may properly deny a motion to amend a pleading if the

amendment would be futile.         Foman, 371 U.S. at 182. More specifically, this

court has held that “[a] proposed amendment is futile if the complaint, as

amended, would be subject to dismissal for any reason, including that the

amendment would not survive a motion for summary judgment.”               Watson ex rel.


                                              -7-
Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001). Based on the record

in the present case, we conclude that it is apparent plaintiff could not meet his

burden at the summary judgment stage to show a genuine issue of material fact on

his claim of an Eighth Amendment violation, regardless of the defendants named

in the suit. Plaintiff concedes that the amendment itself was based on the same

facts used to support his claim against the current defendants, and was being

sought only to name the proper parties. Plaintiff also argued the merits of his

constitutional claim and filed supporting documents in his responses to the motion

for summary judgment. As we explain more fully below, at the time the district

court ruled on summary judgment, the futility in amending plaintiff’s complaint to

name defendants that were more personally involved in his claim was readily

apparent. Therefore, we conclude that the district court’s failure to provide

reasons for denying the proposed amendment is harmless.


                                         IV.

      A violation of the Eighth Amendment’s prohibition of cruel and unusual

punishment may be shown by “deliberate indifference to serious medical needs.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976);    see also Olson v. Stotts,   9 F.3d 1475,

1477 (10th Cir. 1993) (“Delay in medical care can only constitute an Eighth

Amendment violation if there has been deliberate indifference which results in

substantial harm.”) (quotation omitted). To meet the deliberate indifference

                                         -8-
standard, however, a prisoner’s claim of medical mistreatment must allege more

than mere accident or even negligence. “[O]nly the unnecessary and wanton

infliction of pain implicates the Eighth Amendment.”       Wilson v. Seiter, 501 U.S.

294, 297 (1991) (quotations and emphasis omitted). Delay in medical care, by

itself, does not support a constitutional claim.    Olson, 9 F.3d at 1477. Moreover,

mere disagreement with the medical judgment of prison doctors concerning

treatment does not support a claim of cruel and unusual punishment.       Id.

       In their motion for summary judgment, defendants argued that they had no

personal involvement in plaintiff’s case and, alternatively, that plaintiff did not

sufficiently allege a constitutional violation. Defendants attached medical records

to bolster their contention that plaintiff received routine treatment for his feet

until surgery was recommended and, five months later, ultimately approved. In

his response, plaintiff argued that the same medical evidence demonstrated a three

to five year delay in surgery, and that this delay, coupled with the arbitrariness of

the denials of various treatment requests, showed deliberate indifference to his

serious medical need. Plaintiff’s “Request to Amend Pleading Number 2” argued

essentially the same thing, while tying his substantive claims to the actions of the

additional defendants.

       Our independent review of the record confirms the absence of a

constitutional deprivation. Plaintiff’s contention that he began experiencing pain


                                              -9-
as early as 1996 is unsupported, but also undisputed. The medical documentation

submitted by both parties shows appropriate, albeit escalating medical treatment

from 1998 until plaintiff’s podiatrist recommended surgery in March 2001.

Plaintiff’s contention that surgery was considered as early as 1998 is also

undisputed; his associated argument that this earlier consideration of surgery

demonstrates deliberate indifference is significantly diminished by later

documents evidencing plaintiff’s stated preference for alternatives to surgery.

During that period of time between plaintiff’s formal request for surgery and the

surgery itself, the record reveals that the request was denied twice due to the lack

of supporting evidence. Each time, plaintiff’s doctor promptly appealed and

supplied the needed documentation, until the request was ultimately approved.

      Overall, the record in this case presents evidence of reasonable responses to

plaintiff’s gradually increasing complaints of pain, and the inevitable bureaucratic

delays associated with obtaining approval for surgery. The record does not

present “evidence . . . from which a rational trier of fact could find for [plaintiff]”

on his Eighth Amendment claim.      Adler, 144 F.3d at 671. While the district court

granted summary judgment for the reason that the named defendants were not

personally involved in the alleged delay of medical treatment, “we are free to

affirm a district court decision on any grounds for which there is a record

sufficient to permit conclusions of law, even grounds not relied upon by the


                                          -10-
district court.”   Lambertsen v. Utah Dep’t of Corr.,   79 F.3d 1024, 1029 (10th Cir.

1996) (quotation omitted). Accordingly, summary judgment was proper against

plaintiff on his Eighth Amendment claim.


                                            V.

       In his briefs on appeal, plaintiff also suggests that the record was not

sufficiently developed to support a decision on summary judgment. This

contention implicates Rule 56(f), which permits the district court, in its

discretion, to order a continuance “to permit affidavits to be obtained or

depositions to be taken or discovery to be had.” Fed. R. Civ. P. 56(f). In the

present case, plaintiff responded to the motion for summary judgment with a brief

and exhibits, but also generally asserted that he did not possess all of his medical

documentation or records, suggesting that he could not present “facts essential to

justify [his] opposition.”   Id. As we have previously explained, however,

       [t]he protection afforded by Rule 56(f) is an alternative to a response
       in opposition to summary judgment under 56(e) and is designed to
       safeguard against a premature or improvident grant of summary
       judgment. Rule 56(f) may not be invoked by the mere assertion that
       discovery is incomplete or that specific facts necessary to oppose
       summary judgment are unavailable; the opposing party must
       demonstrate how additional time will enable him to rebut movants
       allegations of no genuine issue of fact.

Pasternak v. Lear Petroleum Exploration, Inc.,      790 F.2d 828, 833 (10th Cir.

1986) (citation and quotation omitted). As in      Pasternak, even ignoring plaintiff’s


                                           -11-
failure to file an affidavit explaining the need for additional discovery as

mandated by Rule 56(f), plaintiff’s general assertion to the district court also

“falls far short of showing how the desired time would enable [him] to meet

[his] burden in opposing summary judgment.”      Id.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.


                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




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