                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1087
                        ___________________________

                                 John Russell Allard

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

             Tonia Baldwin, MD; Delores Green; Pamela Alexander

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                           Submitted: December 9, 2014
                              Filed: March 5, 2015
                                 ____________

Before LOKEN, BYE, and SMITH, Circuit Judges.
                           ____________

BYE, Circuit Judge.

      Iowa inmate John Russell Allard brought this 42 U.S.C. § 1983 complaint
against prison staff alleging violations of his constitutional rights based on their
alleged failure to treat his serious medical condition. The district court1 granted

      1
      The Honorable Ronald Longstaff, United States District Judge for the
Southern District of Iowa.
summary judgment to the prison staff. Allard filed the instant appeal, arguing
material questions of fact exist regarding the appropriateness of the care he received.
We affirm.

                                           I

      Allard was a prisoner at the Clarinda Correctional Facility ("CCF") of the Iowa
Department of Corrections ("IDOC") at the time of the events giving rise to this
lawsuit. All claims arise out of a bowel obstruction and perforation Allard suffered
and the allegedly deficient medical care provided by Tonia Baldwin, M.D., Delores
Green, and Pamela Alexander ("CCF Health Services staff").2

       On February 5, 2011, Allard sent a medical complaint to CCF Health Services
to report pain in his abdomen and failure to have a bowel movement for over a week.
Allard was diagnosed at that time with constipation, and treatment of the condition
began. During the first three days of his treatment for constipation by CCF Health
Services, Allard received Milk of Magnesia, was told to increase his fluid intake, was
given a Limited Activity Notice for work, was told to increase his activity levels, was
given a Docusate Sodium capsule, was administered an enema, was given magnesium
citrate, and received a complete blood count which indicated Allard had no infection.
Allard also reported passing some gas and CCF Health Services staff noted
hyperactive bowel sounds.

        On February 8, 2011, Allard reported he had still not had a bowel movement
and his bowel sounds were hypoactive and sluggish. Allard was put on a liquid diet
at the time which remained in effect until his bowel perforated. Stool softeners were


      2
       During the time period relevant to this suit, medical care was also provided to
Allard by other CCF Health Services staff members who have not been named as
defendants in this suit.

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ordered. The next day Allard presented with more active bowel sounds and a slight
fever. On February 10, Allard again presented with a soft abdomen and bowel sounds
in all four quadrants. On that day Allard reported no bowel movement and Allard
was referred off-site for an x-ray of his abdomen. The x-ray was taken at the Clarinda
Regional Health Center ("CRHC") in Clarinda, Iowa, on February 10, and CCF
Health Services staff received a report from CRHC indicating Allard's bowel
contained a large quantity of stool, but there was no obstructive pattern.

       On February 11, Allard reported a small bowel movement, but still felt sick.
Allard presented with a soft abdomen and hypoactive to normal bowel sounds. Allard
continued to be treated for constipation, including another bottle of magnesium
citrate. On February 12, Allard reported a small bowel movement from the prior day,
cramping in his lower abdomen, and nausea. Allard presented with some bowel
sounds and his abdomen was not tender. The next day, Allard reported nausea,
vomiting, and some gas, but no bowel movement. Allard was prescribed the
antibiotic Augmentin. Allard was continued on MiraLAX and stool softeners. A
complete blood count was ordered.

       On February 14, Allard reported a small bowel movement had occurred the
night before. The complete blood count performed on February 14 indicated no
infection. Later on February 14, Allard reported three small stools. A soap suds
enema was then ordered, and resulted in liquid stool and a small solid bowel
movement. The soap suds enema was repeated. The laxative GoLytely was then
ordered. On February 15, new laxatives and suppositories were ordered. The
suppositories resulted in gas and a small amount of stool.

      On February 16, Allard reported he had a bowel movement the night before and
passed gas all night. Allard reports that on February 16 he was physically unable to
walk because of pain and unable to drink fluids because of vomiting. More laxatives
were ordered. On February 17, Allard made clear his interest in stopping laxatives,

                                         -3-
but was continuing to have pain. Bowel sounds were present in all bowel quadrants
and Allard reported some small results from the treatment ordered the day before.
Later, Allard's white blood count indicated infection and he was referred to the
emergency room at CRFC. The emergency room doctor noted abdomen bowel
sounds, no masses or megaly, and a soft abdomen. Flat and upright abdomen films
revealed fairly large amounts of air within the colon, but the CRFC emergency room
doctor did not see any obstruction, and the CRFC radiologist, while not excluding an
obstruction, did not diagnose one.3 The radiologist at CRFC noted distal colonic
obstructions were not excluded and recommended a CT scan if distention persisted.
After his return from the emergency room, Allard was given the gas reliever
Simethicone on the recommendation of the emergency room doctor. No CT scan was
ordered.

       On February 18 and 19, Allard was instructed to walk between his cell and
CCF Health Services, which he estimates he did approximately twenty times. On
February 18, Allard asked for a change in medical directives; the medical directives
were not changed. On February 19, Allard lied by reporting three stools and
reporting he felt better. Allard was told to continue walking and drinking fluids.

      The morning of February 20, Allard suffered a perforated diverticulum. Allard
was sent to a hospital in Council Bluffs, Iowa, where he was treated. Allard had
emergency surgery where a colostomy bag was installed and his bowel was repaired.


      3
       The CRHC emergency room physician saw Allard on February 17 and wrote
the report on February 18. The CRHC radiologist read the x-ray on February 17 and
noted a "distal colonic obstruction is not excluded" by the films. The Iowa
Department of Corrections did not receive a copy of the radiologist's report until
September. The failure of the CCF Health Services staff to obtain the report does not
demonstrate deliberate indifference: the results of the x-ray were reported to the CCF
Health Services staff and were recorded on February 17 in Allard's CCF medical
records.

                                         -4-
Allard used the colostomy bag for ten months and now has a scar. In March of 2011,
Allard received a disciplinary notice and was reprimanded for failure to strictly
adhere to medical directives. The reprimand was based on Allard's refusal to walk
as directed as part of his medical treatment.

       Allard commenced this lawsuit on March 12, 2012, against Tonia Baldwin,
M.D.; Delores Green; Pamela Alexander; Steve Jenkins; and Mark Lund, claiming
his Eighth Amendment right to be free from cruel and unusual punishment was
violated because CCF Health Services staff failed to treat his serious medical
condition. The district court dismissed Jenkins and Lund from the suit and granted
summary judgment to the remaining defendants.

                                           II

       "We review a district court's decision to grant a motion for summary judgment
de novo, applying the same standards for summary judgment as the district court."
Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir. 2011).
Summary judgment is appropriate "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). In considering summary judgment motions, the burden
of demonstrating there are no genuine issues of material fact rests on the moving
party, and we review the evidence and the inferences which reasonably may be drawn
from the evidence in the light most favorable to the nonmoving party. Davis v.
Jefferson Hosp. Ass'n, 685 F.3d 675, 680 (8th Cir. 2012). "'Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (quoting Ricci v. DeStefano, 557 U.S. 557, 585 (2009)).

     The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const.
amend. VIII. The government has an "obligation to provide medical care for those

                                          -5-
whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 103 (1976).
"An Eighth Amendment claim that prison officials were deliberately indifferent to the
medical needs of inmates involves both an objective and a subjective component.
The plaintiffs must demonstrate (1) that they suffered objectively serious medical
needs and (2) that the prison officials actually knew of but deliberately disregarded
those needs." Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (internal
citations omitted). Allard has demonstrated he suffered an objectively serious
medical need when his bowel became obstructed and thereafter perforated, but
Allard's claim the prison officials actually knew of but deliberately disregarded his
medical needs fails as a matter of law.

       Allard agrees he was diagnosed with constipation and given extensive
treatment for that diagnoses. However, Allard argues his diagnoses and care were
constitutionally inadequate. To prevail on a deliberate indifference claim, Allard
must show more than even gross negligence. Spann v. Roper, 453 F.3d 1007, 1008
(8th Cir. 2006) (per curiam); see also Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir.
2009) ("In order to demonstrate that a defendant actually knew of, but deliberately
disregarded, a serious medical need, the plaintiff must establish a 'mental state akin
to criminal recklessness: disregarding a known risk to the inmate's health.'" (quoting
Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006))).

       Allard first argues his diagnoses was constitutionally inadequate. To show
deliberate indifference in a misdiagnosis, Allard must show defendants were more
than grossly negligent. "Negligent misdiagnosis does not create a cognizable claim
under § 1983." McRaven v. Sanders, 577 F.3d 974, 982 (8th Cir. 2009). Allard has
failed to meet this burden. CCF Health Services staff diagnosed Allard with severe
constipation after hearing Allard's complaints and conducting physical examinations.
CCF Health Services staff twice referred Allard to the emergency room where the
emergency room physician examined Allard and diagnosed constipation. The
diagnoses by CCF Health Services staff does not arise to a level of criminal

                                         -6-
recklessness. See Vaughn, 557 F.3d at 908. Allard's expert testified that a physician
reviewing the x-rays in light of Allard's symptoms should have diagnosed Allard with
a bowel obstruction. While Allard may have established a question of material fact
sufficient for a negligent malpractice case, such evidence does not show deliberate
indifference. CCF Health Services staff referred Allard to an outside provider who
verified the diagnoses of constipation. Thus, the misdiagnosis does not rise to the
level of deliberate indifference.

       Allard next argues the care provided was constitutionally inadequate. A
plaintiff can show deliberate indifference in the level of care provided in different
ways, including showing grossly incompetent or inadequate care, Smith v. Jenkins,
919 F.2d 90, 93 (8th Cir. 1990), showing a defendant's decision to take an easier and
less efficacious course of treatment, id., or showing a defendant intentionally delayed
or denied access to medical care, Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir.
2002). Allard relies on Smith, 919 F.2d at 93, to argue the treatment provided was
constitutionally deficient. In Smith, the Eighth Circuit held "mere proof of medical
care" is insufficient to disprove deliberate indifference. Id. Thus, in cases where
some medical care is provided, a plaintiff "is entitled to prove his case by establishing
[the] course of treatment, or lack thereof, so deviated from professional standards that
it amounted to deliberate indifference." Id.

       Smith does not, as Allard contends, mandate a jury trial in this case. In Smith,
the record was not well developed and this Court was "particularly troubled by the
absence of Smith's medical records from the court record." Id. This Court held "a
review of the medical records is required before a determination against Smith is
made." Id. In the instant matter, the medical records are available and Allard has
provided an expert who testified to the standard of care. The record demonstrates the
CCF Health Services staff did not ignore Allard's complaints or his overall condition.
Allard's medical records show CCF Health Services staff tried numerous treatments
and constantly responded to Allard's complaints with potential remedies to treat

                                          -7-
constipation. In fact, at various times Allard reported to his health care providers
various treatments were providing some relief. Although Allard reported his
displeasure with the ordered treatments, a healthcare provider need not accept as true
medical judgments offered by their patients but must make treatment decisions on the
basis of many factors, only one of which is patient's input. Givens v. Jones, 900 F.2d
1229, 1232 (8th Cir.1990); see also Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 795
(8th Cir. 2006) (holding mere disagreement with treatment decisions does not rise to
level of constitutional violation). In total, viewing the evidence in the light most
favorable to Allard, the treatments provided were not so ineffective as to be
criminally reckless and therefore rise to the level of deliberate indifference.

       Finally, Allard argues the disciplinary action supports his deliberate
indifference claim. Although a reasonable inference can be made from the
disciplinary actions that the prison health officials did not believe Allard was as sick
as he claimed to be, this does not create a question of material fact which must be sent
to a jury. It is not for this Court to determine whether the disciplinary action should
have been filed. The evidence in favor of the CCF Health Services staff on Allard's
Eighth Amendment claim is strong and Allard has not shown how the CCF requiring
him to walk rises to the level of deliberate indifference.

                                          III

      Although Allard demonstrates the medical staff at CCF failed to properly
diagnose his bowel obstruction, and although Allard demonstrates the failure to treat
the bowel obstruction led to a bowel perforation, Allard fails to put forward evidence
to support a finding of deliberate indifference. Accordingly, we affirm the judgment.
                        ______________________________




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