                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   November 28, 2006
                                    TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court

 C ED RIC BR YA N T B RA X TO N,

          Plaintiff - Appellant,
                                                      No. 06-3302
 v.                                            (D.C. No. 05-CV-3460-SAC)
                                                        (D . Kan.)
 W YANDOTTE COUNTY SHERIFF’S
 D EPA RTM EN T; LER OY G REEN,
 Sheriff; RAN D A LL H EN D ER SON,
 Jail Administrator; JOH N G AM BLE,
 Chief Doctor; NEPHCA RE HEALTH
 SERVICES; (FNU) (LNU), Nurses,
 N ephCare H ealth Services; (FNU)
 FITZPA TR IC K, Escort O fficer; (FNU)
 BRIDG ES, Deputy; (FNU) HERW ITT,
 Acting Sargent; (FNU) SHARP,
 Sargent; (FNU) BUNNELL, Deputy;
 (FNU) GARCIA, Deputy; GELBERT
 (LN U), Deputy; (FNU) OW EN S,
 D eputy; (FN U ) TR EN , D eputy; (FNU)
 M ORM AN, Deputy; (FNU) W ALKER,
 D eputy; JO H N A TH A N MA SO N,
 Nurse; LANCE (LNU), Nurse.

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      Plaintiff-Appellant Cedric Braxton, a state inmate appearing pro se, appeals

from the district court’s order dismissing his 42 U.S.C. § 1983 civil rights

complaint for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). At the

time of the events giving rise to this case, M r. Braxton was an inmate held in the

W yandotte County Detention Center, in Kansas City, Kansas. On October 13,

2005, while handcuffed and shackled, M r. Braxton fell down a flight of stairs at

the facility. He twisted his ankle, bruised and scraped his knee, damaged a

toenail, and experienced lower back and shoulder pain which required him to take

pain medication, restrict his activity, and use a walker. He alleges the fall was

caused by the negligence of an officer that was escorting him and by the torn and

unsafe shoes he was wearing. He also alleges that the medical response provided

to him was deficient under the Eighth Amendment. The district court dismissed

M r. Braxton’s complaint for failure to state a claim.

      W e review the district court’s dismissal de novo, accepting all allegations

in the complaint as true and construing them in a light most favorable to the

plaintiff. See French v. Adams County Det. Ctr., 379 F.3d 1158, 1159 (10th Cir.




      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

                                         -2-
2004). Because M r. Braxton filed pro se, we must liberally construe the

allegations of his complaint. Id. W e will affirm the dismissal if it is obvious that

M r. Braxton cannot prevail on the facts he alleged and if it would be futile to give

him an opportunity to amend. Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 806

(10th Cir. 1999). On appeal, M r. Braxton argues that the district court’s decision

is not in accord with Estelle v. Gamble, 429 U.S. 97 (1976), and that he should

have been given leave to amend based on supplementary information provided the

district court. Our jurisdiction arises under 28 U.S.C. § 1291.

      The district court properly applied the requirements of Estelle v. Gamble

and required M r. Braxton to allege both objective and subjective components to

state an Eighth Amendment violation. To succeed on an Eighth Amendment

claim based on the conditions of confinement, an inmate must allege facts to

demonstrate the deprivation is “sufficiently serious” and that prison officials

acted with “deliberate indifference to inmate health or safety.” Fogle v. Pierson,

435 F.3d 1252, 1260 (10th Cir. 2006). In cases involving the deprivation of

medical treatment, prison officials violate the Eighth Amendment if “their

deliberate indifference to serious medical needs . . . constitutes the unnecessary

and wanton infliction of pain.” K ikumura v. Osagie, 461 F.3d 1269, 1291 (10th

Cir. 2006). However, medical malpractice is not compensable under § 1983

because inadvertent failure to provide adequate medical care or negligence in

diagnosing or treating a medical condition does not violate the Eighth

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Amendment. Id.

      M r. Braxton’s charge of negligence against the officer escorting him is not

cognizable under the Eighth Amendment because negligence does not constitute

deliberate indifference. See Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir.

2006). Similarly, M r. Braxton’s claim that his torn and unsafe shoes contributed

to his fall also sounds in negligence and does not violate the Eighth Amendment.

      W e also conclude that the medical treatment provided to M r. Braxton did

not violate the Eighth Amendment. A delay in medical care only violates the

Eighth Amendment if the plaintiff can show the delay caused substantial harm.

Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001). Substantial harm

constitutes a “lifelong handicap, permanent loss, or considerable pain.” Id.

Although M r. Braxton may have experienced a modest delay in treatment, he has

not identified any substantial harm resulting from the delay in treatment.

Furthermore, within four days of his fall, M r. Braxton was seen by a prison

doctor, who prescribed pain medication and ankle support. M r. Braxton was also

referred to the University of Kansas M edical Center where he received

specialized treatment for his injuries. Based on these facts, we agree that M r.

Braxton has failed to allege a delay in medical care causing substantial harm.

      M r. Braxton has also failed to demonstrate that the defendants acted with

deliberate indifference to his medical needs, namely that the defendants

knowingly disregarded an excessive risk to M r. Braxton’s health or safety. See

                                         -4-
Kikumura, 461 F.3d at 1291. M r. Braxton must allege some facts to demonstrate

the defendants’ subjective intent to deprive him of medical care, knowing that

such deprivation would cause significant risk to his health. M r. Braxton’s mere

allegations about the timing of his treatment, and his allegations that he only

received treatment after filing an administrative grievance, are insufficient in this

regard. The district court considered M r. Braxton’s supplementary information

under the correct legal standards.

      AFFIRM ED. As the district court granted M r. Braxton’s motion to proceed

in forma pauperis on appeal, we remind him of his obligation 1 to make partial

payments until he has paid the entire appellate filing fee.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      1
         The district court noted that any partial payments of filing fees will be
applied first to M r. Braxton’s obligation for the remainder of the $350.00 district
court filing fee. R. Doc. 18 at 1.

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