                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 28 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    JOHN SANDIFER,

                Plaintiff-Appellant,

    v.
                                                         No. 04-3152
    LEROY GREEN, JR.; J. B. HOPKINS,              (D.C. No. 00-CV-3286-JTM)
    Jail Administrator; (FNU) GAMBLE,                      (D. Kan.)
    Jail Physician, Wyandotte County
    Detention Center; PRISON HEALTH
    SERVICES,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , 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



*
      This order and judgment is not binding precedent, except under the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.
therefore ordered submitted without oral argument.

      Plaintiff John Sandifer, a Kansas state inmate proceeding pro se, claims

that personnel at the Wyandotte County Detention Center in Kansas City, Kansas,

were deliberately indifferent to his serious medical needs during the time he was a

pretrial detainee at that facility. He filed suit under 42 U.S.C. § 1983. The

district court granted summary judgment in defendants’ favor and denied

Mr. Sandifer’s motion to amend his complaint.     1
                                                      Mr. Sandifer appeals.

      We first hold that Mr. Sandifer has not alleged the requisite actionable

conduct for § 1983 liability on the part of defendants Green, Hopkins, and Prison

Health Services. “[U]nder § 1983, a defendant may not be held liable under a

theory of respondeat superior. Instead, a plaintiff must show that an affirmative

link exists between the constitutional deprivation and either the defendant’s

personal participation, his exercise of control or direction, or his failure to

supervise.”   Ledbetter v. City of Topeka   , 318 F.3d 1183, 1187 (10th Cir. 2003)

(quotations and citation omitted). Mr. Sandifer has alleged none of these

circumstances. Accordingly, summary judgment in favor of these defendants was

appropriate, and we consider Mr. Sandifer’s allegations only as to defendant



1
      In a prior appeal, this court reversed an order granting summary judgment
to defendants solely on the ground that Mr. Sandifer did not file a response to the
motion. Sandifer v. Green, 57 Fed. Appx. 857 (10th Cir. Feb. 12, 2003)
(unpublished). The current appeal arises after remand.

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Gamble, the jail doctor.

                                     Background

      We view the facts in the light most favorable to Mr. Sandifer, as the party

opposing summary judgment.      Sealock v. Colorado, 218 F.3d 1205, 1209

(10th Cir. 2000). Mr. Sandifer contracted the AIDS virus and began treatment in

1991, several years prior to the events discussed here. He was arrested on May 1,

1999, and detained at the Wyandotte County Detention Center until January 14,

2000, when he was transferred to the state penitentiary. He asserts that during the

time he was at the detention center, Dr. Gamble delayed in obtaining his required

medication, failed to administer it according to the precise schedule required, and

disregarded his complaints of pain and other serious symptoms of his condition.

      Mr. Sandifer did not receive his medication for the first five or six days

after he entered the jail, despite his explanation to jail personnel that he needed

the medication every day. During the next three months, he became increasingly

ill because his medication was interrupted. In early June, Dr. Gamble ordered and

reviewed blood tests, but did not correctly interpret the results, so did not realize

that Mr. Sandifer’s condition had worsened. From late June to late August,

Mr. Sandifer complained of headaches, and was treated with Tylenol and

ibuprofen. Although Dr. Gamble ordered more blood tests on August 23, the tests

were not performed until August 31. Upon receiving the results, Dr. Gamble


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immediately transferred Mr. Sandifer to a hospital where he was treated for

anemia caused by his AIDS medication. On September 3, Mr. Sandifer was

released from the hospital and returned to the jail. He was examined by a

specialist on September 15, who prescribed a triple combination therapy with

instructions for administering the medication on a rigorous schedule. Jail

personnel failed to follow the prescribed schedule and regularly failed to

administer his medication, stating they forgot to reorder it or they were too busy

to give it. Mr. Sandifer received no medication from September 3 through

September 17, which may have caused or contributed to more health problems,

including mouth sores, in late October and early November, for which Dr. Gamble

did not treat him adequately. In early December, Mr. Sandifer’s medications were

changed again, and in mid-January he was transferred from the jail to the

penitentiary.

      Mr. Sandifer sued, alleging that jail personnel were deliberately indifferent

to his serious medical needs. Defendants responded and filed a   Martinez 2 report.

The district court granted summary judgment in favor of defendants.




2
      Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978).

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                  Deliberate Indifference to Serious Medical Needs

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

Sealock, 218 F.3d at 1209. Summary judgment is appropriate if there is no

genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P.

56(c). Mr. Sandifer is representing himself on appeal, so his pleadings will be

construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

       Because Mr. Sandifer was a pretrial detainee at the time his claims arose,

we evaluate his claims under the Fourteenth Amendment’s Due Process Clause,

which affords “the same degree of protection against denial of medical care as

that afforded to convicted inmates under the Eighth Amendment.”        Estate of

Hocker ex rel. Hocker v. Walsh    , 22 F.3d 995, 998 (10th Cir. 1994). Accordingly,

“we apply an analysis identical to that applied in Eighth Amendment cases.”

Lopez v. LeMaster , 172 F.3d 756, 759 n.2 (10th Cir. 1999).

       “[D]eliberate indifference to a prisoner’s serious illness or injury states a

cause of action under § 1983[,] 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 or intentionally

interfering with the treatment once prescribed.”    Estelle v. Gamble , 429 U.S. 97,

104-05 (1976) (footnote omitted). “Deliberate indifference” involves an objective


                                            -5-
and a subjective element.     Sealock , 218 F.3d at 1209. The objective element is

fulfilled if the medical need “has been diagnosed by a physician as mandating

treatment or . . . is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.”   Hunt v. Uphoff , 199 F.3d 1220, 1224

(10th Cir. 1999) (quotation omitted). “The subjective component is met if a

prison official ‘knows of and disregards an excessive risk to inmate health or

safety.’” Sealock , 218 F.3d at 1209 (quoting    Farmer v. Brennan , 511 U.S. 825,

837 (1994)). Here, Mr. Sandifer has not satisfied the subjective component

because he has not demonstrated that Dr. Gamble disregarded an excessive risk to

his health.

       Mr. Sandifer’s brief and the medical records reflect that he received

medical treatment on a regular basis throughout the time he was at the jail. He

received pain medication in response to his complaints of headaches, and when

the first medication did not relieve his pain, he was given additional pain

medication. He received blood tests and, when the results showed a need for

acute care, he was transferred immediately to the hospital. He was referred to a

medical specialist, who changed his AIDS drug regimen. He was administered

his AIDS medications, as well as other medications for various complaints of pain

and discomfort.

       Mr. Sandifer’s allegations do not support a claim that Dr. Gamble was


                                           -6-
deliberately indifferent, and therefore they do not state a constitutional violation.

“A negligent failure to provide adequate medical care, even one constituting

medical malpractice, does not give rise to a constitutional violation. Moreover, a

prisoner who merely disagrees with a diagnosis or a prescribed course of

treatment does not state a constitutional violation.”     Perkins v. Kan. Dep’t of

Corr. , 165 F.3d 803, 811 (10th Cir. 1999) (citation omitted).

       Mr. Sandifer contends that he suffered pain and his condition deteriorated

due to the delays in giving him AIDS medication between his arrest on May 1 and

May 6; and again after his hospitalization, between September 3 and September

17. He concedes that he received medication for his headache pain. His

allegation that his condition deteriorated does not demonstrate a constitutional

violation because he has not shown that the delays caused him substantial harm.

Delay in providing medical care constitutes deliberate indifference only “where

the plaintiff can show that the delay resulted in substantial harm.”    Sealock , 218

F.3d at 1210. As Mr. Sandifer admits, as soon as the blood test results showed

that he needed a blood transfusion, Dr. Gamble transferred him to the hospital,

where he received the transfusion and other medical treatment. After his release

from the hospital, he was referred to a medical specialist, although not as quickly

as he would have liked. Nevertheless, he has not shown substantial harm due to

the alleged delays in acquiring and dispensing his AIDS medication, and therefore


                                             -7-
he has not shown deliberate indifference.

      While Mr. Sandifer alleges he suffered pain due to his serious medical

condition, “deliberate indifference to serious medical needs [applies only to] the

unnecessary and wanton infliction of pain,”         Estelle , 429 U.S. at 104 (quotation

omitted), a showing he has not made. The district court’s grant of summary

judgment on this claim was correct.

                              Leave to Amend Complaint

      Mr. Sandifer asserts that the district court erred in denying him leave to

amend his complaint a second time. We review the district court’s order denying

leave to amend a complaint for an abuse of discretion.         Wessel v. Albuquerque ,

299 F.3d 1186, 1196-97 (10th Cir. 2002).

      The reason Mr. Sandifer wants to amend his complaint is apparently to

name additional defendants. He has not identified the proposed defendants or

suggested why claims against them could withstand summary judgment, however.

We determine that amending the complaint to name additional jail employees

involved in the delivery of medical care to Mr. Sandifer would be futile in light of

our review of the record and Mr. Sandifer’s allegations. Accordingly, we find no

abuse of discretion in the district court’s order denying leave to amend the

complaint a second time.    See Curley v. Perry , 246 F.3d 1278, 1281-82 (10th Cir.

2001) (dismissal of pro se complaint proper where it is obvious plaintiff cannot


                                              -8-
prevail on the facts alleged and it would be futile to give him opportunity to

amend).

                          Supplemental Record on Appeal

      Mr. Sandifer has submitted with his appellate brief a volume of documents

that include medical records from the jail. Defendants have moved to strike the

documents Mr. Sandifer has submitted with his brief. The motion to strike is

denied as to the jail medical records; it is granted as to the remaining documents.

      The judgment of the district court is AFFIRMED. Defendants’ motion to

strike is granted in part and denied in part. The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




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