                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              NOV 17 1997
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk
 MONTY RAY HAYNES,

          Plaintiff-Appellant,

               v.                                          No. 97-3174
                                                     (D.C. No. 94-3328-DES)
 (NFN) KEPKA; L.E. BRUCE; R.                                (D. Kan.)
 BIEBERLE, Correctional Officer;
 DEBORAH S. BUTLER, Nurse,
 Prison Health Care Services,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Plaintiff Monty Haynes, a state prisoner appearing pro se, appeals the



      *
          This order and judgment is not binding precedent, except under the doctrines of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.
district court’s order granting summary judgment in favor of defendants in this §

1983 civil rights action. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

      Haynes entered the Ellsworth Correctional Facility in May 1994 on a parole

violation. During his initial health care screening, he allegedly informed the

nurses, including defendant Deborah Butler, that he suffered from ankylosing

spondylitis, a chronic disease that results in fusion or stiffening of the spine.

1 Schmidt’s Attorney’s Dictionary of Medicine A-266 (17th ed. 1982). Haynes

alleged Butler handled him in a “rough manner,” “verbally patronize[ed] him for

not responding to her abuse,” and failed to accurately record information he

conveyed regarding his disease. Record, Doc. 34 at 8.

      On July 21, 1994, Haynes, accompanied by Officer Ron Bieberle, visited

the health clinic because of acute pain in his left hip and lower back, allegedly

due to his ankylosing spondylitis. Haynes was initially examined by Butler and

then by Dr. Dennis Kepka. He was uncooperative in answering questions and

Officer Bieberle ordered him to cooperate with Butler and Dr. Kepka. According

to Haynes, he informed Kepka of his disease and told him he had been seen by a

medical specialist who had prescribed a particular method of treatment. Haynes

alleged Kepka chose not to follow that treatment method and ignored restrictions

placed on Haynes, allowing him to work in a prison job that exceeded his physical


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capabilities. Medical records indicate Haynes was prescribed anti-inflammatory

medication and he was classified as a “Class 2 medical” with limitations and a

twenty-five pound weight limit. In October 1994, he was reclassified as a “Class

3 medical” with bottom bunk privileges.

      Haynes filed an internal grievance claiming he was denied proper medical

treatment. Defendant L.E. Bruce, administrator of the Ellsworth Correctional

Facility, rejected his grievance on August 2, 1994, stating:

      Dr. Kepka has diagnosed you as having degenerative arthritis, as you state
      you suffer from. As there is no cure for arthritis, Dr. Kepka chose to treat
      [your] condition with Meclomen, an anti-inflammatory medication. Dr.
      Kepka and the P.H.S. nurses have found no reason why you can not
      participate in a work assignment.

Haynes responded by filing this action on August 12, 1994, claiming defendants

acted with deliberate indifference to his medical needs and thereby violated his

Eighth Amendment rights. Defendants filed a Martinez report and filed motions

for dismissal and/or summary judgment. The district court granted summary

judgment in favor of defendants on May 21, 1997.

      We review a grant of summary judgment de novo and apply the same

standards as the district court. Summary judgment is appropriate if “there is no

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

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We construe the evidence

and its reasonable inferences in the light most favorable to the non-movant.


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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986). Although a Martinez report was ordered by the district court and was

relied upon by defendants, it cannot be used to resolve factual disputes. Hall v.

Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Thus, in reviewing whether

summary judgment was proper, we credit Haynes’ version of events.

      We have carefully reviewed the record and conclude Haynes’ claim of

constitutionally inadequate medical treatment is insufficient as a matter of law.

To survive summary judgment, a claim under the Eighth Amendment must show

that the challenged state action has denied plaintiff “the minimal civilized

measure of life’s necessities” and that the state actors have shown “deliberate

indifference” to plaintiff’s needs. See Wilson v. Seiter, 501 U.S. 294, 298

(1991). Further, when a prisoner does in fact receive medical care, he has no

Eighth Amendment claim based merely on his disagreement with the nature of the

care provided. See Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992).

Here, the uncontroverted evidence demonstrates defendants responded to and

investigated Haynes’ complaints of physical pain but simply chose a different

course of treatment. This does not demonstrate deliberate indifference on the part

of defendants and is insufficient to state a valid claim of medical mistreatment




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under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 105-06

(1976).

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.

                                            Entered for the Court

                                            Mary Beck Briscoe
                                            Circuit Judge




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