                                                              FILED
                                                   United States Court of Appeals
                      UNITED STATES CO URT O F APPEALS     Tenth Circuit

                                                                   September 24, 2007
                             FO R TH E TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    M AR K A NTH ON Y TROU TT,

                Plaintiff-Appellant,

    v.                                                    No. 06-6273
                                                     (D.C. No. 04-CV-1750)
    CORRECTIONA L HEALTHCARE                              (W .D. Okla.)
    M ANAGEM ENT, INC.; OKLAHOM A
    CO UN TY BOA RD OF CO UN TY
    C OM M ISSIO N ER S; JO H N
    W HETSEL,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


         M ark Anthony Troutt, a state prisoner, appeals pro se from the district

court’s order granting the Defendants summary judgment in his suit alleging

deliberate indifference to medical needs. He argues generally that summary

judgment was inappropriate “based on the facts of the case,” Aplt. Br. at 18, and


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
he complains specifically that the district court (1) would not permit reasonable

discovery; (2) should have appointed counsel for him; and (3) failed to review

properly his objections to the magistrate judge’s rulings. W e have jurisdiction

under 28 U.S.C. § 1291 and affirm.

                                   B ACKGROUND

      After being arrested on a drug-distribution charge, M r. Troutt was confined

in the Oklahoma County Detention Center (OCDC) in April 2002. He was

convicted in September 2003 and was transferred to the Oklahoma D epartment of

Corrections (DOC) the following month to serve a 15-year sentence. The

Oklahoma Court of Criminal Appeals reversed M r. Troutt’s conviction, however,

and remanded the case for a new trial.

      On November 9, 2004, DOC returned M r. Troutt to OCDC to await retrial.

The following day he submitted an “Inmate Health Service Request” form asking

to be “m edically [t]reated for H epatitus [sic] C.” R., Doc. 105, Ex. G-2. He

repeated his request twice more that month. On December 1 he was informed that

treatment for Hepatitis C was available only at DOC. In response he sued

OCDC’s private health-services provider, Correctional Healthcare M anagement,

Inc. (CHM ), on December 22, alleging:

      [A]fter being diagnosed with Hepatitis C I was refused medical
      treatment[.] [M ]y liver enzymes were elevated while in the custody
      of the county Jail. Due to the stress and strain of not being
      released[ ] and medically treated for a life threatening disease, I
      developed shingles. [CHM ] chose not to treat me for my disease and

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      they would not medically release me so I could seek medical
      attention for my life threatening disease. . . . [CHM ] chose to
      ignor[e] the value of my life because of the cost and procedure of
      treatment.

R., Doc. 1 at 2.

      In January 2005 M r. Troutt was again convicted and this time sentenced to

30 years’ imprisonment. On January 26 he amended his complaint to add as

defendants the Oklahoma County Sheriff, John W hetsel, and the Oklahoma

County Board of County Commissioners (the Board). In July 2005 he was

transferred back to DOC.

      Throughout the course of the proceedings M r. Troutt filed numerous

motions for appointment of counsel. All were either denied on the merits or

stricken from the record for lack of service. M r. Troutt also sought discovery

from the defendants and, after receiving their responses, moved to compel,

asserting that his “efforts ha[d] been thwarted and objected to.” R., Doc. 98 at 2.

The magistrate judge denied the motion, and the district court upheld that denial

over M r. Troutt’s objection.

      In September 2005 the Defendants moved for summary judgment.

Documents presented to the district court showed that treating Hepatitis C is not a

matter of simply prescribing drugs. Drug therapy can be dangerous and is often

unnecessary. The preamble to the DOC protocol for treatment provides the

following explanation:



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             [H]ow to predict the outcome of chronic Hepatitis C infection
      in an individual case [is not clear]. M ost studies show that at least
      80% of persons w ith chronic H epatitis C infection will have a mild
      course without the development of cirrhosis or death from their
      infection. The remaining 20% will develop cirrhosis; some mild,
      some severe. A small percentage of those who develop cirrhosis will
      develop liver cancer. It is this small percentage of persons w ith
      severe cirrhosis and cancer who are most likely to benefit from
      interventions to reduce their risk. Unfortunately there are no clear
      predictors of who is most likely to benefit from current treatments.

             Currently available medication treatments for Hepatitis C
      infection are fraught with complications. Side effects can be
      incapacitating, and even fatal. In particular, persons w ith certain
      medical and mental health conditions are at high risk for fatal
      complications of the medications. For these reasons, [DOC] strives
      to select those people most likely to benefit from the medications and
      to prevent harm to those most likely to be harmed by the
      medications.

Id., Doc. 73, Ex. 1 at 1. The protocol sets forth an eight-step process of

evaluation, treatment, and follow-up. In step one the diagnosis of chronic

Hepatitis C infection is made by checking an inmate’s liver-enzyme levels “every

3 months x 3.” Id. If “2 out of 3 levels [are] elevated,” id. at 2, inmates are then

evaluated in steps tw o through six to determine whether they are suitable

candidates for drug-therapy treatment involving Ribavirin and Interferon antiviral

agents. To be suitable, the inmate should have at least two years of incarceration

remaining to complete further testing, treatment, and follow-up. Full treatment

alone takes 48 weeks. It is provided only at the state penitentiary and three

correctional centers; inmates who qualify for medication are transferred to one of

those institutions. Inmates w ho do not qualify for drug-therapy treatment are

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“refer[red] to Conservative Treatment,” id. at 3, 4 (internal quotation marks

omitted).

      The magistrate judge recommended that summary judgment be entered

against M r. Troutt. The district court adopted the recommendation despite M r.

Troutt’s objections and entered judgment for the D efendants.

                                    D ISCUSSION

                          I. Summary Judgment Standards

      “W e review the grant of summary judgment de novo, applying the same

standard as the district court.” Ward v. Utah, 398 F.3d 1239, 1245 (10th Cir.

2005). Summary judgment is appropriate “if the pleadings, depositions, answers

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

show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law .” Fed. R. Civ. P. 56(c).

                             II. Deliberate Indifference

      “[P]rison officials violate the Eighth Amendment’s ban on cruel and

unusual punishment if their deliberate indifference to serious medical needs of

prisoners constitutes the unnecessary and wanton infliction of pain.” Self v.

Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (internal quotation marks omitted).

The Eighth Amendment applies to the states via the Fourteenth Amendment’s Due

Process Clause. See M iller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). Also,

“[u]nder the Fourteenth Amendment’s due process clause, pretrial detainees

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. . . are entitled to the same degree of protection regarding medical attention as

that afforded convicted inmates under the Eighth Amendment.” Barrie v. Grand

County, Utah, 119 F.3d 862, 867 (10th Cir. 1997) (internal quotation marks

omitted). Thus, even though M r. Troutt was both a pretrial detainee and later a

convicted prisoner at OCDC, our analysis of his deliberate-indifference claim is

not affected by the status of his incarceration.

      Deliberate indifference involves both an objective and a subjective

component. See Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th Cir. 2006).

“The objective component of the test is met if the harm suffered is sufficiently

serious to implicate the Cruel and Unusual Punishment Clause.” Id. (internal

quotation marks omitted). “The subjective component is met if a prison official

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

(internal quotation marks omitted).

      M r. Troutt has failed to establish deliberate indifference. He has not even

shown negligence. He has provided no reason to challenge the underlying

medical assumptions in the DOC protocol, and under that protocol he received

proper care. During the initial portion of his confinement at OCDC— from

November 2004 to January 2005— M r. Troutt was awaiting trial. Because he may

have been acquitted, there could have been no assurance that he would be

confined sufficiently long even to determine his suitability for drug therapy, much

less provide such therapy. After his conviction a lengthy confinement could be

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predicted; but he would need to be transferred to a facility prepared to provide

proper treatment. A nd w hile he was awaiting transfer from OCDC to a DOC

facility, his liver enzymes were tested in M arch and June 2005. 1 M r. Troutt has

provided no evidence that it was unconscionable to delay further evaluation until

he left OCDC. On the contrary, his own evidence, a report prepared by the

Hepatitis C Support Project, states that “hepatitis C takes a long time to damage

the liver[,] . . . many people will never get sick from hepatitis C,” and “not

everyone with hepatitis C needs to be treated with HCV medicines.” R., Doc.

105, Ex. F at 8. The preamble to the DOC protocol echoes these observations.

      To the extent that M r. Troutt claims harm from contracting shingles “[d]ue

to the stress of not being released . . . and not being medically treated for

[H epatitis C],” R., Doc. 21 at 2, it is undisputed that he contracted shingles before

ever learning that he had Hepatitis C. Consequently, any denial of care for

Hepatitis C could not have resulted in M r. Troutt’s shingles.

      M r. Troutt’s constitutional rights were not violated. Summary judgment

was properly entered on M r. Troutt’s deliberate-indifference claims.




1
      W e reject M r. Troutt’s suggestion that his medical records were not
authenticated. CHM ’s chief executive officer submitted an affidavit declaring her
familiarity with CHM ’s medical records and that she knew the records submitted
by CHM in seeking summary judgment were the records of M r. Troutt’s medical
care.

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                                    III. Discovery

      “W e review a district court’s ruling denying a motion to compel

[discovery] for an abuse of discretion.” Norton, 432 F.3d at 1156. The district

court denied M r. Troutt’s motion because (1) he failed to “identif[y] any

particular discovery response of any Defendant that is allegedly insufficient”;

(2) he stated “only in the most general and conclusory terms that Defendants’

responses and objections have thwarted his ability to obtain relevant evidence”;

and (3) the “Defendants’ discovery responses d[id] not demonstrate on their face”

any violation of the Federal Rules of Civil Procedure. R., Doc. 114 at 2. W e

discern no abuse of discretion.

                            IV. Appointment of Counsel

      W e review for an abuse of discretion the district court’s refusal to appoint

counsel for an indigent prisoner in a civil case. Steffey v. Orman, 461 F.3d 1218,

1223 (10th Cir. 2006). “Only in those extreme cases where the lack of counsel

results in fundamental unfairness will the district court’s decision be overturned.”

Id.

      In considering a prisoner’s request for appointed counsel, the district “court

should consider the merits of the prisoner’s claims, the nature and complexity of

the factual and legal issues, and the prisoner’s ability to investigate the facts and

present his claims.” Id. at 1224 (internal quotation marks omitted). The district

court denied M r. Troutt’s requests, finding that he had “demonstrated skill in

                                          -8-
presenting both the legal and factual aspects of his claims, and the issues raised in

this action are not complex at this juncture.” R., Doc. 47. W e conclude that the

district court reasonably assessed M r. Troutt’s ability to represent himself. The

court did not abuse its discretion in denying his motion for appointed counsel.

                    V. Objections to M agistrate Judge’s Rulings

      Finally, M r. Troutt contends that the district court did not properly review

his objections to the magistrate judge’s “treatment of the progress of the case.”

Aplt. Br. at 19. W e disagree. The district court appropriately considered M r.

Troutt’s various objections. See Fed. R. Civ. P. 72 (prescribing clear-error review

for nondispositive matters and de novo review for dispositive matters); 28 U.S.C.

§ 636(b)(1) (same).

                                    C ONCLUSION

      The judgment of the district court is A FFIRM ED. M r. Troutt’s motion to

proceed on appeal in forma pauperis is G RANTED; he is reminded of his

obligation to continue making partial payments until his filing fee is paid in full.


                                                     Entered for the Court


                                                     Harris L Hartz
                                                     Circuit Judge




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