                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         May 7, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
WESLEY BERNARD WILLIAMS,

             Plaintiff - Appellant,

v.                                                         No. 14-1498
                                               (D.C. No. 1:13-CV-03420-RBJ-BNB)
DAVID ALLRED,                                               (D. Colo.)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      Wesley Bernard Williams, a federal prisoner proceeding pro se, appeals the

district court’s order dismissing his claims against a prison physician. He alleged

that (1) Dr. Allred was deliberately indifferent to his serious medical needs in

violation of the Eighth Amendment, and (2) Dr. Allred retaliated against him for

filing prison grievances in violation of the First Amendment. He seeks leave to



      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291,

we grant ifp and affirm.

                                 I.   BACKGROUND

        Mr. Williams’s claims arose during his incarceration at the federal penitentiary

in Florence, Colorado. The magistrate judge chronicled the medical care provided to

Mr. Williams for his scalp condition beginning in July 2009 at other federal prisons.

He was prescribed Ketoconazole shampoo, among other treatments. After his

transfer to Florence on August 30, 2012, he filed a grievance to get a refill for

Ketoconazole shampoo. The warden resolved the October 2012 grievance by having

the prescription refilled and noting that Mr. Williams had not mentioned at intake

that his prescription was running low.

        On December 6, 2012, Mr. Williams requested another prescription refill. The

prescription did not expire until December 11, 2012. Dr. Allred denied further refills

until Mr. Williams appeared for a sick call. On December 17, 2012, Mr. Williams

filed a grievance because his prescription had not been refilled. The warden

responded on January 15, 2013, stating that Mr. Williams would have to be examined

before another refill would be authorized and that he had been scheduled for an

exam.

        On January 25, 2013, Nurse Kellar examined Mr. Williams and recommended

selenium sulfide lotion for his scalp condition. He advised Mr. Williams to follow up

at sick call as needed. On February 14, 2013, Dr. Allred examined Mr. Williams in


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his cell in the special housing unit. An assistant apparently accompanied him

because his report states, “NO scalp lesions were noted by two examiners.” R.

Doc. 1 at 65. Dr. Allred observed no dandruff, flaking, scaling, excoriations, blood,

lesions, or bumps. He noted that Mr. Williams had recently purchased medicated

shampoo and conditioner. Accordingly, he found no need for Ketoconazole and

declined to renew the prescription. Dr. Allred instructed Mr. Williams to “Follow-up

at Sick Call as Needed, Return Immediately if Condition Worsens, [and] Return to

Sick Call if Not Improved.” Id.

       After exhausting the prison grievance procedure, Mr. Williams filed suit,

alleging Dr. Allred was deliberately indifferent to his serious medical needs because

he refused to prescribe Ketoconazole shampoo. He also alleged Dr. Allred refused to

prescribe Ketoconazole shampoo in retaliation for the prison grievances he had filed.

Dr. Allred moved to dismiss for failure to state a claim under Fed. R. Civ. P.

12(b)(6). The district court adopted the magistrate judge’s recommendation to grant

the motion.

                            II. STANDARD OF REVIEW

       We review de novo the district court’s Rule 12(b)(6) dismissal. Christy

Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,


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570 (2007)). “[W]e assume the factual allegations are true and ask whether it is

plausible that the plaintiff is entitled to relief.” Gallagher v. Shelton, 587 F.3d 1063,

1068 (10th Cir. 2009). “[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678.1

      We have liberally construed Mr. Williams’s pro se filings. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam). Even so, “this court has repeatedly

insisted that pro se parties follow the same rules of procedure that govern other

litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005) (brackets and internal quotation marks omitted).

                        III. DELIBERATE INDIFFERENCE

      To state an Eighth Amendment claim for deliberate indifference, Mr. Williams

must show “deliberate indifference to [his] serious medical needs.” Al-Turki v.

Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014) (internal quotation marks omitted).


      1
         Dismissal of a pro se complaint for failure to state a claim “without affording
the plaintiff notice or an opportunity to amend is proper only when it is patently
obvious that the plaintiff could not prevail on the facts alleged, and allowing him an
opportunity to amend his complaint would be futile.” Curley v. Perry, 246 F.3d
1278, 1281-82 (10th Cir. 2001) (internal quotation marks omitted). For the reasons
discussed herein, it is plain that Mr. Williams cannot prevail, so amendment would
be futile. Moreover, although Mr. Williams has cited case law about providing an
opportunity to amend, he does not show or claim he could successfully amend his
complaint.


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A deliberate indifference claim includes: (1) an objective component, which

“examines whether the prisoner’s medical condition was sufficiently serious to be

cognizable under the Cruel and Unusual Punishment Clause,” and (2) a subjective

component, which “examines the state of mind of the defendant, asking whether the

official knew of and disregarded an excessive risk to inmate health or safety.” Id.

(brackets and internal quotation marks omitted). “[T]he official must both be aware

of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Self v. Crum, 439 F.3d 1227,

1231 (10th Cir. 2006) (internal quotation marks omitted).

      Mr. Williams’s allegations as to the subjective component fail the plausibility

test. We need not address the objective component. See, e.g., Martinez v. Beggs,

563 F.3d 1082, 1089-91 (10th Cir. 2009) (holding even though the objective

component was satisfied, subjective component was not; thus plaintiff had not

demonstrated deliberate indifference).

                             A. Subjective Reasonableness

      Mr. Williams argues that Dr. Allred’s refusal to renew his prescription was

subjectively unreasonable because (1) his medical records demonstrated the

seriousness of his scalp condition, and (2) three weeks before Dr. Allred’s

examination, Nurse Kellar recommended selenium sulfide lotion to treat his scalp.

But Dr. Allred’s decision to examine Mr. Williams’s scalp was not unreasonable.

Until Nurse Kellar examined him in late January 2013, 19 months had elapsed since


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his last scalp evaluation and, as the physician who had been asked to prescribe

Ketoconazole shampoo, Dr. Allred made a reasonable and responsible decision to

examine him to determine whether a new prescription was warranted. Indeed, that

decision indicated he did not disregard an excessive risk to Mr. Williams’s health.2

                            B. Dr. Allred’s Medical Reports

      Mr. Williams also asserts Dr. Allred fabricated his medical reports. He

contends Dr. Allred invented the need for an examination based on a limited

description of his scalp condition in the records, even though the records contained

ample information about his scalp condition. In addition, Mr. Williams claims Dr.

Allred falsified the report of his examination, as evidenced by the conflicting

findings of Dr. Allred and Nurse Kellar.

      Mr. Williams refers to the documents he attached to his complaint, which we

may consider. Farrell-Cooper Mining Co. v. U.S. Dep’t of Interior, 728 F.3d 1229,

1237 n.6 (10th Cir. 2013). Although he does not specify which documents support

his arguments, and although the court has no duty to construct arguments for a pro se

litigant or to search the record, Garrett, 425 F.3d at 840, we have reviewed the

attachments. They demonstrate that, although Mr. Williams had received regular


      2
         Mr. Williams argues on appeal that a medical examination was required
within 14 days of his arrival at Florence, presumably by Dr. Allred. Because he did
not raise this claim in the district court, we do not consider it. See United States v.
Muhammad, 747 F.3d 1234, 1241 (10th Cir.) (“By not raising arguments on the other
factors in district court, Defendant waived them and we need not consider them
further.”), cert. denied, 134 S. Ct. 2741 (2014).


                                           -6-
medical care for his scalp condition, he had not been examined for 19 months. Even

if the medical records had reflected a recent examination, we would decline to hold

that Dr. Allred’s decision to examine Mr. Williams before prescribing medication

demonstrated deliberate indifference. It instead demonstrated due diligence.

      As for conflicts between Dr. Allred’s findings and Nurse Kellar’s, the latter

noted skin lesions, while Dr. Allred did not. He found “Skin Intact, Dry, Warmth,”

with no tenderness, drainage, follicular lesions, scabs, or bleeding. R. Doc. 1 at 67.

He observed a very dry scalp with flaking skin. Although the two reports reflect

some differences, Dr. Allred examined Mr. Williams several weeks after Nurse

Kellar did, and noted that the condition was “resolved,” suggesting improvement

after Nurse Kellar saw him and recommended selenium sulfide lotion. See id. Doc. 1

at 65. Moreover, Mr. Williams has not indicated whether he followed the advice of

both Dr. Allred and Nurse Kellar to return to the clinic if his condition worsened.

                           C. Disagreement About Treatment

      Dr. Allred examined Mr. Williams on February 14, 2013, and opined that he

no longer needed the Ketoconazole shampoo. Although Mr. Williams disagrees with

Dr. Allred’s opinion, his “case boils down to a contention that he had a right to a

particular course of treatment.” Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir.

2006). Such a disagreement does not state a deliberate indifference claim. Id.;

accord Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010).

                                      *    *     *     *


                                          -7-
      Mr. Williams’s conclusory allegations are insufficient and do not state a

plausible claim. See Palma-Salazar v. Davis, 677 F.3d 1031, 1037 (10th Cir. 2012)

(declining to address conclusory statements (collecting cases)). We conclude the

district court properly dismissed Mr. Williams’s claim of deliberate indifference.

                                 IV. RETALIATION

      Mr. Williams alleges that Dr. Allred retaliated against him for filing

grievances about his medical care concerning his scalp condition. Prison officials

may not retaliate against prisoners for exercising their constitutional rights, including

filing internal prison grievances. See Fogle v. Pierson, 435 F.3d 1252, 1264 (10th

Cir. 2006) (action filed by a state prisoner under 42 U.S.C. § 1983). A plaintiff must

show that a retaliatory motive was the “but for” reason for the adverse action, and he

“must allege specific facts showing retaliation because of the exercise of the

prisoner’s constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.

1998) (internal quotation marks omitted) (action filed by a state prisoner under

§ 1983).

      Mr. Williams alleges the following demonstrate Dr. Allred’s retaliatory

motive: (1) Dr. Allred approved the prescription refill following Mr. Williams’s

October 2012 grievance but did not require an examination at that time; (2) the only

reason Dr. Allred examined Mr. Williams was that he had filed grievances; and

(3) the grievances made Dr. Allred aware that Mr. Williams had complained to

Dr. Allred’s superiors.


                                          -8-
       The attachments to the complaint demonstrate that the warden and others, not

Dr. Allred, responded to the grievances. Mr. Williams has failed to allege facts

showing that Dr. Allred was aware that he had filed grievances. He has failed to

show the grievances provided the “but for” reason for denying the prescription refill.

The district court properly dismissed the retaliation claim.3

                                    V. CONCLUSION

       We affirm the district court’s judgment, grant Mr. Williams’s motion to

proceed ifp, and remind him of his obligation to continue making partial payments

until the filing fee is paid in full.

                                                ENTERED FOR THE COURT



                                                Scott M. Matheson, Jr.
                                                Circuit Judge




       3
        Mr. Williams relies on Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971), for his retaliation claim. We do not and need not
address whether this court would recognize his claim under Bivens because we
determine the complaint’s allegations do not otherwise state a plausible retaliation
claim.



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