                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                               May 22, 2007
                          FO R TH E TENTH CIRCUIT           Elisabeth A. Shumaker
                                                                Clerk of Court

DAN NY ELLIOTT BEAUCLAIR,

             Plaintiff-Appellant,

v.                                                 No. 06-3265
                                            (D.C. No. 03-CV-3237-SAC)
BILL GRAVES, Former Governor, in                     (D . Kan.)
his official and individual capacity;
KATHLEEN SEBELIUS, Governor, in
her official and individual capacity;
ROGER W ERHOLTZ, Secretary of
Corrections, in his official and
individual capacity; JAN E DO E,
Ombudsman of Kansas, in her official
and individual capacity; WILLIAM L
C UM M IN G S and D O RIA WA TSON,
Kansas D epartment of Corrections, in
their official and individual capacities;
RO GER HA DEN ; CH ARLES E.
SIM M ONS, Secretary of Corrections,
in his official and individual capacity;
RAY ROBERTS, W arden, Ellsworth
Correctional Facility, in his official
and individual capacity; (fnu) KEPKA,
Doctor, Ellsworth Correctional
Facility, in his official and individual
capacity; D. BUTLER, Registered
Nurse, Ellsworth Correctional Facility,
in her official and individual capacity;
(fnu) EDW AR DS, (fnu) CH APUT,
CCI, and (fnu) BRITTON, Ellsworth
Correctional Facility, in their official
and individual capacities; (fnu)
STOKES, CCII, Hutchinson
Correctional Facility, in his official
and individual capacity; L. E. BRU CE,
W arden, Hutchinson Correctional
Facility, in his official and individual
capacity; (fnu) W ILSO N, (fnu)
W ILLIA M S, and (fnu) A N D ER SON,
CCIs, Hutchinson Correctional
Facility, in their official and
individual capacities; (fnu) (inu), CO
Officer, Hutchinson Correctional
Facility, in his official and individual
capacity; M . A. NELSO N, W arden,
El Dorado Correctional Facility, in his
official and individual capacity;
J. TH IESSEN , L. DAVIS, and S.
DEW ITT, Registered Nurses, Prison
Health Services, El Dorado
Correctional Facility, in their official
and individual capacities; (fnu)
JO NES, Doctor, Prison Health
Services, El Dorado Correctional
Facility, in his official and individual
capacity; JOHN DOE, Doctor, Larned
State Hospital, in his official and
individual capacity; ELIZAB ETH
GILLESPIE, Director, Shawnee
County Jail, in her official and
individual capacity; RICHARD
ECTERT, County Counselor, in his
official and individual capacity; (fnu)
BURNEY, M ajor, Shawnee County
Jail, in his official and individual
capacity; DEBBIE M cARDLE, Team
Leader, Shawnee County Jail, in her
official and individual capacity; JOSIE
NORRIS, Doctor, Shawnee County
Jail/Health Authority, in her official
and individual capacity; SHAW N
LEISIN GER, Assistant County
Counselor, in his official and
individual capacity; (fnu) B LA KELY,
Doctor, Shawnee County Jail, in his
official and individual capacity;


                                           -2-
LESLIE HUSS, LSCSD W , Shawnee
County Jail, in her official and
individual capacity; (fnu) ALBERT,
and (fnu) W ATSO N, Doctors, Prison
Health Services, Ellsworth
Correctional Facility, in their official
and individual capacities; JAN ET
M YERS, Registered Nurse, Health
Services Administration, in her
official and individual capacity;
DENNIS GUFF, ARNP, Prison Health
Services, Hutchinson Correctional
Facility, in his official and individual
capacity; (fnu) RUSTIA, Doctor,
Prison Health Services, Hutchinson
Correctional Facility, in his official
and individual capacity; LAWRENCE
PERRY, Doctor, M edical Contract
M anagement Consultant, Prison
Health Services, in his official and
individual capacity; M AR GA RET
SM ITH, M D, M edical Contract
M anagement Consultant, Prison
Health Services, in her official and
individual capacity; JAM ES BAKER,
M D, Prison Health Services, Regional
M edical Director, in his official and
individual capacity; JO REN E
KERNS, Senior Vice President, Prison
Health Services, in her official and
individual capacity; JESSE
HUBLING, Regional Vice President,
Prison Health Services, in his official
and individual capacity; CARL J.
KELDIE, M D, M edical Director,
Prison Health Services, in his official
and individual capacity; GERALD F.
BOYLE, President and CEO, Prison
Health Services, in his official and
individual capacity; (fnu) KIVETT, R.


                                           -3-
EGLI, (fnu) STANTON , (fnu) NO LL,
(fnu) ETHERIDG E, AN GELA
GOEHRING, DEBORAH J.
W A L KER , JA N E D O ES, JO H N
D O ES, (fnu) JA Y N ES, C AR OL
W ARD, and R. ARNOLD, in their
official and individual capacities;
(fnu) HOANG, Doctor, Lansing
Correctional Facility, in his individual
and official capacity; RO GER
HADON, Kansas Department of
Corrections, in his individual and
official capacity; R. A. STUPER,
Deputy W arden, Lansing Correctional
Facility, in his individual and official
capacity; DAVID M CKUNE, W arden,
Lansing Correctional Facility, in his
individual and official capacity;
M ICH AEL M OW ERY, PT, PHS/CC S,
in his official and individual capacity;
DAVID PELZEL, El Dorado
Correctional Facility, in his official
and individual capacity; SH A SHANK
B. RADADIYA, Doctor, KU M edical
Center, in his official and individual
capacity; (fnu) FISHBACK, CCI,
Lansing Correctional Facility, in her
official and individual capacity;
NADINE K. BELK, HSA /CCS, in her
official and individual capacity; (fnu)
HENDRY, CCS, Lansing Correctional
Facility; SH RR YD ETTA N
RODYBUSH , Assistant to Roger
Hadon; (fnu) SENNE, CCS, Lansing
Correctional Facility,

             Defendants-Appellees.




                                           -4-
                           OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




      In this civil rights action brought pursuant to 42 U.S.C. § 1983, Danny

Elliot Beauclair, a Kansas state prisoner appearing pro se, alleges that his Eighth

Amendment right to be free from cruel and unusual punishment has been violated

because: (1) Certain of the above-named defendants have acted with deliberate

indifference to his serious medical needs; and (2) Certain of the above-named

defendants failed to protect him from being assaulted by another inmate.

Exercising its power under 28 U.S.C. § 1915(e)(2)(B)(ii) and 42 U.S.C.

§ 1997e(c)(2), the district court sua sponte dismissed Beauclair’s claims,

concluding that he had failed to state a claim upon which relief may be granted.

As a result, none of the defendants were served, or otherwise appeared, in the




*
  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.

                                         -5-
proceedings below. Similarly, none of the defendants have entered an appearance

in this appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM . 1

                                          I

      Beauclair has been diagnosed with numerous ailments, including

fibromyalgia, chronic fatigue, chronic pain syndrome, sleep disorder, irritable

bowel syndrome, plantar fasciitis, osteoarthritis, degenerative disc disease,

bilateral leg radiculopathy, and hypothyroidism. He claims that he suffers from

even more disorders and that he is in constant pain. In his original complaint, he

alleged that numerous prison officials and medical staff provided inadequate

treatment and ignored his requests for alternative measures.

      After reviewing Beauclair’s voluminous complaint, the district court

informed him that his case would be subject to dismissal without prejudice unless

he submitted an amended complaint on a court form. On that form, Beauclair was

ordered to provide a plain statement and a brief factual summary for each of his

claims. The court further instructed Beauclair to describe the manner in which

each defendant participated in the alleged violations, and describe his efforts to

exhaust his administrative remedies. In response, Beauclair submitted five

amendments or supplements to his initial complaint, each with additional claims




1
  Plaintiff previously filed a motion for appointment of counsel to represent him
in this appeal. On August 15, 2006, this court entered an order denying plaintiff’s
motion.

                                         -6-
and defendants. Finding that Beauclair’s allegations constituted, at w orst,

negligence, rather than deliberate indifference, the district court dismissed his

claims. Beauclair now appeals.


                                          II

      W e review de novo the district court’s decision to dismiss a complaint

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Perkins v. Kan.

Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). “Dismissal of a pro se

complaint for failure to state a claim is proper only where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give

him an opportunity to amend.” Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir.

2001) (quotation omitted). “In determining whether a dismissal is proper, we

must accept the allegations of the complaint as true and construe those

allegations, and any reasonable inferences that might be drawn from them, in the

light most favorable to the plaintiff.” Gaines v. Stenseng, 292 F.3d 1222, 1224

(10th Cir. 2002); see also Kikumura v. Osagie, 461 F.3d 1269, 1294 (10th Cir.

2006) (stating that a prisoner “is merely required to provide ‘a short and plain

statement’ of his Eighth Amendment claims, and ‘malice, intent, knowledge, and

other condition of mind of a person may be averred generally’ in the complaint”)

(citations and alteration omitted).




                                         -7-
      “In addition, we must construe a pro se appellant’s complaint liberally.”

Gaines, 292 F.3d at 1224. This liberal treatment is not unlimited, however, and

“this court has repeatedly insisted that pro se parties follow the same rules of

procedure that govern other litigants.” G arrett v. Selby Connor M addux & Janer,

425 F.3d 836, 840 (10th Cir. 2005) (quotation omitted). In the Eighth

Amendment context, we also recently recognized that, “[a]lthough plaintiffs are

not required to plead specific facts demonstrating defendants’ culpable state of

mind, they can still undermine their own case by asserting facts incompatible w ith

a deliberate indifference claim.” Kikumura, 461 F.3d at 1294.

      In evaluating a deliberate indifference claim under the Eight Amendment,

we must consider both the objective and the subjective components required by

our precedent. Id. at 1291. To satisfy the objective test, “the alleged deprivation

must be ‘sufficiently serious’ to constitute a deprivation of constitutional

dimension.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). To meet the

subjective requirement, a plaintiff “must establish that defendant(s) knew he

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). This latter standard is the equivalent of “criminal recklessness,

which makes a person liable when she consciously disregards a substantial risk of

harm.” M ata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005) (citing Farmer v.

Brennan, 511 U.S. 825, 836-38 (1994)).

                                          -8-
                                         A

      W e agree with the district court that, even if liberally construed and

accepted as true, Beauclair’s allegations regarding his medical and dental

complaints do not satisfy the subjective component of the deliberate indifference

standard. Rather, his allegations merely show a difference of opinion regarding

appropriate medical care or, at worst, negligence.

      As Beauclair has conceded in his opening brief, he received the treatment

deemed appropriate by the medical staff of each of the facilities in which he was

detained. In Larned State Hospital he received treatment for his irritable bowel

syndrome, he was given a “no stairs” restriction, his meals w ere delivered to his

cell daily, and he was provided pain medication. At Shawnee County Jail his

medication regimen continued, he was given antibiotics and aspirin pending

removal of two teeth, and he was provided a knee brace. He continued to receive

medication during his confinement at “RDU.” The “same course of treatments”

continued at the H utchinson C orrectional Facility (“HCF”), where he also had tw o

teeth pulled and received pain medication. Beauclair claims that he received no

medical care during his confinement at Ellsworth Correctional Facility from

M arch 2003 to M ay 2003, but his allegations show that he was seen by a doctor in

April 2003. Finally, at Lansing Correctional Facility (“LCF”), Beauclair was

given “medical shoes, and arch supp[or]ts and an egg crate pad for his bad

back/herniated disk.” He was subsequently given knee braces, a cane, and

                                         -9-
eventually a wheel chair. In addition, Beauclair was sent to see a rheumatologist

at the University of Kansas M edical Center, and participated in a meeting with

several prison officials at LCF, including a medical consultant, to discuss his

medical care.

      In sum, we agree with the district court that “[t]he record fully documents

continuing care and attention to plaintiff’s numerous medical needs.” Although

providing some form of medical treatment does not necessarily foreclose a

deliberate indifference claim, see, e.g., Oxendine v. Kaplan, 241 F.3d 1272, 1279

(10th Cir. 2001), Beauclair never contends that prison staff ignored a serious

medical concern or failed to reasonably address any medical need.

                                          B

      Beauclair alleges that he was seriously injured on November 21, 2002,

when one of his cellmates in a five-man cell at HCF assaulted him. He contends

that prison officials at HCF w ere deliberately indifferent to his safety because he

had previously filed an “emergency grievance” dated September 20, 2002,

informing the prison officials that he was being threatened by the same prisoner.

That grievance stated:

      Please respond ASA P. As there are person’s in my cell that do not
      like my Bathing needs. So I am requesting to go Back to [cell]
      D-1-100 ASA P, and stay [there], you are putting me in harms way
      under KSA . 21-3425 & KSA . 21-3902.




                                        -10-
According to Beauclair, prison officials denied his grievance, finding that there

was no emergency and that the same matter had been previously grieved.

      “W hile prison officials have a duty to protect prisoners from violence at the

hands of other prisoners,” Curley, 246 F.3d at 1282 (quotation omitted), this duty

requires only that prison officials not act with “deliberate indifference to inmate

health or safety,” id. (quotation omitted). As noted above, to show the requisite

deliberate indifference, plaintiff must establish that defendants “knew he faced a

substantial risk of harm.” K ikumura, 461 F.3d at 1293. As the Supreme Court

has explained, “the [prison] 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.” Farmer, 511 U.S. at 837. W e conclude that

Beauclair’s allegations are insufficient to show such deliberate indifference. The

referenced grievance did not contain enough facts to support an inference that he

was facing a substantial risk of serious harm. Plaintiff has also failed to allege

sufficient facts to show that the prison officials acted with deliberate indifference

to his safety when they failed to implement the alleged “‘M edical Restriction’

[that] was done on 5-30-2002, by Dennis Goff, ARNP, requesting Beauclair be

placed in a ‘One man cell’ due to medical problems of [irritable bowel

syndrome].”

      Finally, in his initial complaint, Beauclair also alleged that he received

deficient medical care for the injuries that he sustained in the assault. As w ith his

                                         -11-
other claims based on insufficient medical care, however, Beauclair concedes he

was given pain medication and a treatment regimen. This claim again represents

a difference of opinion regarding the proper course of treatment, rather than

deliberate indifference. It too was properly dismissed by the district court.

                                         III

      The judgment of the district court is AFFIRM ED.


                                                    Entered for the Court


                                                    Carlos F. Lucero
                                                    Circuit Judge




                                         -12-
