                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         January 31, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

    CHARLES TUCKER,

              Plaintiff-Appellant,

     v.                                                    No. 05-7057
                                                     (D.C. No. 03-CV-202-P)
    BRUCE MEYER; MS. MELTON;                               (E.D. Okla.)
    TERRY MARTIN; GREG SHEIK,

              Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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-appellant Charles Tucker 1 is a former Oklahoma state prisoner

with a back fusion, who spent part of his incarceration time at the Bruce Johnson

Correctional Center (BJCC) participating in a boot camp program. After his

release from prison, he filed a 42 U.S.C. § 1983 action seeking damages.

Mr. Tucker alleged that defendants BJCC physician Bruce Meyer, Warden Janice

Melton, supervisor Terry Martin, and unit manager Greg Sheik violated his Eighth

Amendment rights by their deliberate indifference to his back pain and serious

medical needs and violated his due process rights by assigning him to participate

in the boot camp program. 2 The district court granted defendants’ motion for

summary judgment.

      On appeal, Mr. Tucker argues that there are genuine issues of fact whether

defendants (1) confessed an Eighth Amendment violation; (2) failed to provide

appropriate medical care; and (3) required him to submit to a prison boot camp

program without medical clearance and in violation of prison guidelines

concerning age and physical condition. Also, Mr. Tucker argues that the district

court failed to sufficiently discuss the issues.




1
      Although Mr. Tucker was pro se when he filed his complaint, he has been
represented by counsel throughout most proceedings, including this appeal.
2
      Mr. Tucker made other allegations and sued additional defendants. None of
those allegations or defendants are relevant to this appeal.

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      We review the district court’s grant of summary judgment de novo,

reviewing the record in the light most favorable to Mr. Tucker. See Norton v.

City of Marietta, 432 F.3d 1145, 1152 (10th Cir. 2005) (per curiam). The district

court appropriately granted summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show[ed] that there [was] no genuine issue as to any material fact and that

the moving party [was] entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). Applying these standards, we affirm.

      Mr. Tucker first argues that there is a genuine issue of material fact

whether defendants admitted violating his Eighth Amendment rights. The state

district court granted Mr. Tucker post-conviction relief, releasing him from prison

and ordering that he serve the remainder of his suspended sentence under the

supervision of parole and probation authorities. Mr. Tucker maintains that

because he sought post-conviction relief claiming that due to his physical

limitations his due process and equal protection rights had been violated by

placement in the boot camp and because he was granted post-conviction relief it

follows that his Eighth Amendment rights were violated and defendants must have

confessed as much. After reviewing the record, we do not reach the same

conclusion. The assistant district attorney apparently confessed post-conviction

relief, but there is no indication why she did so. The state court provided no


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explanation for its decision granting post-conviction relief, and we will not

speculate that the basis for its decision is as Mr. Tucker suggests. Even if the

state court found due process and equal protections violations, that alone will not

establish a genuine issue of fact regarding an Eighth Amendment violation.

Moreover, defendants, who were not parties to the post-conviction proceedings,

deny that they violated Mr. Tucker’s Eighth Amendment rights.

      Next, Mr. Tucker argues that there is a genuine issue of material fact

whether defendants violated his rights by assigning him to a boot camp program

without considering his age and physical condition and without providing proper

medical clearance. Defendants, however, did not make the assignment. Rather,

persons at the Lexington Assessment and Reception Center (LARC) made the

decision to send Mr. Tucker to BJCC and to the boot camp program after LARC

medical personnel physically assessed Mr. Tucker.

      Third, Mr. Tucker argues that there is a genuine issue of fact whether he

received appropriate medical care after he started the BJCC boot camp program.

He contends that defendants were deliberately indifferent to his medical needs by

denying him pain management program medications, substituting over-the-counter

medications, delaying requested medical assistance over a weekend, taking only

an x-ray and not an MRI of his back after he complained of pain, and allowing

him to participate in the boot camp.


                                         -4-
      “A prison official’s deliberate indifference to an inmate’s serious medical

needs is a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). “This is

true whether the indifference is manifested by prison doctors in their response to

the prisoner’s needs or by prison guards in intentionally denying or delaying

access to medical care . . . .” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)

(footnote omitted). Deliberate indifference claims have both subjective and

objective components. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir.

2005). “The objective component is met if the deprivation is ‘sufficiently

serious.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation

omitted)). “The subjective component is met if a prison official knows of and

disregards an excessive risk to inmate health or safety.” Id. (quotation omitted).

      Contrary to Mr. Tucker’s assertion, the record shows that he was not on a

pain management program when he arrived at BJCC. While he was at LARC, he

was taken off methadone, a pain drug he had used for only three weeks. He was

treated with Lortab, Flexeril, Ibuprofen, and hot packs. Later, he was weaned off

Lortab. His back pain resolved at LARC, and he requested that he be taken off

Flexeril.

      The record also shows that Dr. Meyer was not deliberately indifferent to

Mr. Tucker’s medical needs. Dr. Meyer promptly treated Mr. Tucker’s medical


                                         -5-
needs with over-the-counter and prescription medications. Dr. Meyer restricted

him from running, running in place, side straddle hops, windmills, sit-ups, and

double-time marching. On two occasions, Dr. Meyer relieved Mr. Tucker of all

activity for the day. The doctor ordered x-rays, which showed Mr. Tucker’s back

fusion, but indicated no presence of acute problems. Mr. Tucker’s expert witness

testified at his deposition that Dr. Meyer provided humane treatment in good

faith, and that Dr. Meyer’s failure to order an MRI was not inhumane, see

generally Estelle, 429 U.S. at 107 (deciding that whether to order additional tests

is matter for medical judgment and failure to order tests is not cruel and unusual

punishment). To the extent Mr. Tucker was dissatisfied with the type of medical

care he received, such a difference of opinion does not constitute deliberate

indifference. See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir.

1999).

         Mr. Tucker makes no specific assertions against Mr. Martin or Mr. Sheik

on appeal. The record shows no genuine issues of material fact concerning their

alleged deliberate indifference to his medical needs.

         Mr. Tucker’s only specific assertions against Wardon Melton are that “[i]t

never occurred to . . . the Warden . . . that the pain management program

prescribed by private physicians might be based on truth,” Aplt. Br. at 13, and

that she “acquiesce[d] and then approv[ed] of the disciplinary misconduct


                                          -6-
demonstrat[ing] both direct involvement and deliberate indifference,” id. at 18.

As indicated above, Mr. Tucker was not on a pain management program when he

arrived at BJCC. The fact that he received a misconduct citation for refusing to

participate in the boot camp when released by Dr. Meyer to do so does not show

deliberate indifference by Warden Melton in light of the constitutionally adequate

medical care he received.

      Lastly, we reject Mr. Tucker’s argument that the district court failed to

sufficiently explain its decision, thereby precluding effective review.

      Accordingly, we AFFIRM the district court’s judgment.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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