                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                              MAR 30 2004
                        FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                   Clerk

CARLTON MAURICE FOWLER,

            Plaintiff-Appellant,

v.                                             No. 03-7008
                                         (D.C. No. 01-CV-257-S)
TOM HODGE, M.D., Jess Dunn                     (E.D. Okla.)
Correctional Center; KAREN
BLAKELY, Administrator of Health
Services, Jess Dunn Correctional
Center; ERIC FRANKLIN, Warden,
Jess Dun Correctional Center;
DENNIS COTNER, Medical Services
Coordinator, Oklahoma Department of
Corrections; RON WARD, Director of
the Oklahoma Department of
Corrections; MELINDA GUILFOYLE,
Administrative Review
Authority/Designee for the Director of
the Oklahoma Department of
Corrections; STEVE BECK, Deputy
Warden, Jess Dunn Correctional
Center; JAMES WALKER, Chief of
Security, Jess Dunn Correctional
Center; TODD BROWN, ARDEN
ESPE, CASEY BENEFIELD,
Correctional Officers at the Jess Dunn
Correctional Center; KEVIN
COLLINS, Correctional Official at the
Jesse Dunn Correctional Center;
STEVE GRAGG, Health Services
Administrator at the Jess Dunn
Correctional Center,

            Defendants-Appellees.
                             ORDER AND JUDGMENT           *




Before SEYMOUR , BRISCOE , and LUCERO , 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.

       Plaintiff Carlton Fowler appeals from the entry of summary judgment for

defendants in this prison civil rights suit. He also challenges the denial of a

motion to supplement his pleadings. Reviewing the grant of summary judgment

de novo, Sealock v. Colorado , 218 F.3d 1205, 1209 (10 th Cir. 2000), and the

denial of leave to supplement for abuse of discretion,   Walker v. UPS, Inc. ,

240 F.3d 1268, 1278-79 (10 th Cir. 2001), we affirm.

       Plaintiff claims defendants were deliberately indifferent to serious medical

needs relating to back pain he has endured throughout his present incarceration.

This claim has three distinct components.



*
      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.

                                            -2-
       Plaintiff’s initial complaint concerns the failure of prison officials at the

Jess Dunn Correctional Center (JDCC) to grant his medical request for a lower

bunk assignment. The pertinent factual background begins when plaintiff was

taken into custody and processed at the Lexington Assessment and Reception

Center in March 1996. His medical history was taken and he reported recurrent

back pain, R. Doc. 1, Att. A at 2, but there is no indication of any treatment or

accommodation required at that time. In April 1997, he re-injured his back and

was prescribed medication, ice, and exercises.      Id. , Att. A at 3. A few months

later, he was transferred to the Cimarron Correctional Facility (CCF), where a

nurse issued a medical memo directing that plaintiff be assigned a lower bunk

because of “back problems.”        Id. , Att. B at 1. In November 2000, another CCF

nurse reconfirmed this lower-bunk restriction with a second medical memo.        Id. ,

Att. B at 2.

       Notwithstanding the two medical memos, a cell assignment form prepared

at CCF in October 2000 did not indicate any lower bunk restriction but instead

assessed plaintiff’s cell assignment status as “Random Eligible/Unrestricted.”

R. Doc. 10 (Special Report),   1
                                   Att. I-2. A medical screening summary prepared



1
        The Special Reports filed by the Oklahoma Department of Corrections were
initially omitted from the appellate record. It is the duty of the district court clerk
to provide the necessary record for a pro se appeal, 10  th Cir. R. 10.2(C), 11.2(A),
and we directed the clerk to supplement the record.

                                             -3-
just before plaintiff’s transfer to the JDCC noted no health restrictions or

limitations. R. Doc. 1, Att. A at 5. The health summary prepared when plaintiff

was received at the JDCC thus noted no restrictions on bunk assignment.

Fortuitously, plaintiff was assigned a lower bunk in the orientation building,

where he stayed until January 4, 2000. He was then placed in a prison dormitory

and assigned an upper bunk.

      JDCC physician Tom Hodge examined plaintiff a week later pursuant to his

request for a medically-based reassignment to a bottom bunk. Finding no

evidence of disc disease, Dr. Hodge noted a “subjective chronic complaint of

back soreness” and recommended use of a back support. R. Doc. 1, Att. A at 6.

Disagreeing with the CCF medical memos (which plaintiff says he presented to

support his complaints), Dr. Hodge concluded a lower-bunk restriction was not

warranted. Id. Although Dr. Hodge subsequently prescribed several medications

to address plaintiff’s reported symptoms,    see id. , he consistently maintained that

plaintiff did not have a medical condition requiring a particular bunk assignment.

See, e.g. , R. Doc. 10, Att. G.

      JDCC officials adhered to Dr. Hodge’s professional conclusions and did not

grant plaintiff’s request for a medically-based bunk assignment. In the meantime,

however, plaintiff was placed on a general bottom-bunk waiting list and, on

February 22, 2000, he was assigned a lower bunk. He seeks damages for the


                                            -4-
interim pain and suffering allegedly caused by the rejection of his medical request

for such an assignment.

       The Eighth Amendment protects prisoners from “deliberate indifference to

serious medical needs.”    Estelle v. Gamble , 429 U.S. 97, 106 (1976). This

formulation includes a subjective component that is satisfied “if a prison official

knows of and disregards an excessive risk to inmate health or safety.”     Sealock ,

218 F.3d at 1209 (quotation omitted). It also includes an objective component

that is satisfied if the inmate’s medical condition was “diagnosed by a physician

as mandating treatment” or “so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.”    Id. (quotation omitted).

Assuming the necessity for treatment requested would not be obvious to a lay

person, the medical judgment of the physician–even if possibly negligent–is not

subject to second-guessing in the guise of an Eighth Amendment claim.        See, e.g. ,

Green v. Branson , 108 F.3d 1296, 1303 (10 th Cir. 1997); Olson v. Stotts , 9 F.3d

1475, 1477 (10 th Cir. 1993).

       The district court held plaintiff’s claim deficient as a matter of law because

“plaintiff is merely asserting a difference of opinion as to the kind and quality of

medical treatment necessary under the circumstances.” R. Doc. 43 at 12. We

agree. While there is medical evidence in the record–indeed, from Dr. Hodge

himself–to indicate that plaintiff experienced chronic back pain, there is no


                                             -5-
evidence that any physician ever found it necessary or appropriate to address the

problem through a medical restriction on his bunk assignment. While two nurses

at the CCF admittedly provided plaintiff with a lower-bunk restriction, his

examining physician at the JDCC specifically found the restriction unwarranted,

a facially credible professional judgment as to whether that particular course of

treatment was medically warranted.   See generally Logan v. Clarke , 119 F.3d 647,

648-50 (8 th Cir. 1997) (affirming summary judgment for prison defendants on

similar bunk-assignment claim).

      Plaintiff alleged, and defendants have not disputed, that Dr. Hodge refused

to review plaintiff’s medical record when he first assessed plaintiff’s request for

a lower-bunk assignment. The omission is immaterial in a strict legal sense,

however, as Dr. Hodge later reviewed plaintiff’s records and reaffirmed that there

was “no medical reason justifying . . . bottom bunk approval for medical reasons.”

R. Doc. 10, Att. G.

      Plaintiff also raises Dr. Hodges’ refusal to refer him to a specialist for

assessment of his back pain. Dr. Hodge examined plaintiff on numerous

occasions and never found a physical basis for his reported symptoms that might

call for the services of a specialist. Under the general principles recited above,

plaintiff must show he had an objectively serious need for a specialist, Dr. Hodge

knew of and disregarded the need, and he suffered substantial harm as a result.


                                         -6-
Oxendine v. Kaplan , 241 F.3d 1272, 1276-77 (10 th Cir. 2001). Assuming the

chronic pain plaintiff reported satisfies the harm requirement,   cf. id. at 1278;

Sealock , 218 F.3d at 1210, the critical question here focuses on his objective need

for a specialist.

       Whether and when routine treatment should be augmented with the

assistance of a specialist involves an exercise of medical judgment that is

generally not subject to redress under the Eighth Amendment.       Ledoux v. Davies ,

961 F.2d 1536, 1537 (10 th Cir. 1992); see also Estelle , 429 U.S. at 107 (“question

whether . . . additional diagnostic techniques or forms of treatment [are] indicated

is a classic example of a matter for medical judgment”). Of course, if a patient’s

need is so plain that “even a lay person would easily recognize the necessity for

a [specialist’s] attention,” the failure to refer the patent could be actionable.

Oxendine , 241 F.3d at 1278 (quotation omitted). We cannot say on this record

that this point was reached here.

       The last aspect of plaintiff’s complaint involves a prison work policy.

Plaintiff and other inmates were sitting in a courtyard during work hours.

Pursuant to prison work rules, officers rounded up the idle inmates for

redeployment to the prison garden. Plaintiff complained he could not work there

because of his back. When he resisted transfer to the garden, he was handcuffed

and led toward the security unit. Plaintiff claims that on the way the escorting


                                            -7-
officer grabbed his arm to change direction, twisting his back and causing him

pain. Plaintiff was then given the choice of going to the garden or continuing on

to the security unit. He chose the garden. Once there, he complained of back

pain and the supervising officer excused him from the work being done. At the

end of the shift, plaintiff walked the 400 yards back to the main compound, which

he alleges caused him considerable pain.

       These facts do not create a triable case under the Eighth Amendment. With

respect to the escorting officer’s conduct, the controlling standard “excludes from

constitutional recognition   de minimis uses of physical force, provided that the use

of force is not of a sort repugnant to the conscience of mankind.”    Hudson v.

McMillian , 503 U.S. 1, 9-10 (1992) (quotation omitted). Plaintiff’s description of

the incident in his subsequent grievance clearly placed the officer’s conduct

within the scope of this exclusion.   See R. Doc. 19, Att. K at 6-7. Plaintiff’s

general complaint about being taken with other idle inmates to the prison garden

is equally meritless since he had no medical restriction precluding that work. And

the consideration he was shown upon arriving at the garden belies any claim of

constitutionally actionable misconduct in connection with the incident.

       Finally, plaintiff challenges the district court’s denial of his motion to

supplement his pleadings a second time with allegations of retaliation by prison

officials in response to this litigation. The district court correctly noted that such


                                            -8-
post-suit conduct falls within the compass of Fed. R. Civ. P. 15(d). The court

added that “[t]o the extent plaintiff’s motion to supplement seeks the addition of

new parties, it is controlled by Fed. R. Civ. P. 15(a) and is actually a motion to

amend,” R. Doc. 42 at 1-2, and then denied the motion under Rule 15(a) authority.

Plaintiff contends the court abused its discretion by deviating from the Supreme

Court’s direction in Griffin v. County School Board     , 377 U.S. 218, 227 (1964),

that “Rule 15(d) . . . plainly permits supplemental amendments to cover events

happening after suit, and it follows, of course, that   persons participating in these

new events may be added.”       See generally 3 James Wm. Moore et al.,    Moore’s

Federal Practice § 15.30 at 15-107.

       As a general matter, “the standard used by courts in deciding to grant or

deny leave to supplement is the same standard used in deciding whether to grant

or deny leave to amend.”     Id. at 15-109. In either case, the district court exercises

its sound discretion in deciding whether such considerations as delay and relative

prejudice favor or disfavor augmentation of the case with the new allegations.

Compare, e.g. , Walker , 240 F.3d at 1278 with Moore v. Reynolds , 153 F.3d 1086,

1116 (10 th Cir. 1998). That is exactly what the district court did here in

determining that granting the motion would cause undue delay and prejudice to

defendants. We see no abuse of discretion in the court’s informed and

particularized assessment of the relevant considerations.


                                             -9-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Stephanie K. Seymour
                                          Circuit Judge




                               -10-
