                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             JAN 29 2001
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 BILAL RASHAD,

               Plaintiff-Appellant,                     No. 00-6088
          v.                                                W.D. Okla.
 PETE DOUGHTY, Medical Services                   (D.C. No. CV-99-232-C)
 Administrator, Oklahoma Department
 of Corrections; JUDY OWENS,
 Administrator, Medical Services,
 Lexington Correctional Complex,

               Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.            **




      *
        This order and judgment is not binding precedent, except under the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.

      **
         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).
Therefore, appellant's request for oral argument is denied, and the case is ordered
submitted without oral argument.
      Bilal Rashad, a prisoner in the custody of the Oklahoma Department of

Corrections, filed this pro se action against two corrections officials, alleging that

the Department failed to provide adequate treatment of his post-traumatic stress

disorder. According to Mr. Rashad, this failure to provide treatment violated the

Americans with Disabilities Act (ADA),      42 U.S.C. §§ 12101-12213 and the

Eighth Amendment. He sought an injunction directing the defendants to provide

the requested treatment.

      In a thorough and well-reasoned report and recommendation, the

magistrate judge concluded that Mr. Rashad’s complaint failed to state a claim

upon which relief could be granted. He further recommended that the dismissal

count as a “prior occasion” under 28 U.S.C. § 1915(g). The district court agreed

and dismissed Mr. Rashad’s complaint. Upon de novo review,        see Perkins v.

Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir. 1999), we agree with

the magistrate judge and the district court.

      With regard to Mr. Rashad’s ADA claim, it is clear that prisons are “public

entities” covered by Title II of the ADA.   See Pennsylvania Dep’t of Corrections

v. Yeskey , 524 U.S. 206, 209 (1998). However, contrary to Mr. Rashad’s

assertions, the failure to provide medical treatment to a disabled prisoner, while

perhaps raising Eighth Amendment concerns in certain circumstances, does not

constitute an ADA violation.    See Bryant v. Madigan , 84 F.3d 246, 249 (7th Cir.


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1996) (concluding that the ADA “would not be violated by a prison’s simply

failing to attend to the medical needs of its disabled prisoners” and that the

statute “does not create a remedy for medical malpractice”);   McNally v. Prison

Health Servs. , 46 F. Supp.2d 49, 58 (D. Me.1999) (distinguishing between

“claims that the medical treatment received for a disability was inadequate from

claims that a prisoner has been denied access to services or programs because he

is disabled,” and concluding that only the latter class of claims states an ADA

violation). In contrast, the allegation that a disabled prisoner has been denied

services that have been provided to other prisoners may state an ADA claim.

See, e.g. , McNally , 46 F. Supp.2d at 58 (concluding that an HIV patient’s claim

of discriminatory denial of prescription services provided to general prison

population would state an ADA claim).

      Here, as the magistrate judge noted, Mr. Rashad’s complaint alleges

inadequate treatment of his post-traumatic stress disorder but does not allege that

the defendant corrections officials discriminated against him on the basis of that

disorder. We therefore agree that Mr. Rashad has failed to state an ADA claim.

      As to Mr. Rashad’s second claim, the magistrate judge properly noted that

the Eighth Amendment protects prisoners from officials’ deliberate indifference

to serious medical needs.   See Estelle v. Gamble , 429 U.S. 97, 104 (1976).

Eighth Amendment claims have two elements: “an objective component


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requiring that the pain or deprivation be sufficiently serious; and a subjective

component requiring that the offending officials act with a sufficiently culpable

state of mind.”   Mitchell v. Maynard , 80 F.3d 1433, 1444 (10th Cir. 1996)

(internal quotation marks omitted). The objective component requires an

“extreme deprivation" denying a “minimal civilized measure of life’s

necessities.” Hudson v. McMillian , 503 U.S. 1, 9 (1992) (internal quotation

marks omitted). As to the subjective component, in order to be held liable, the

defendant official must act with deliberate indifference to the prisoner’s health or

safety. See Farmer v. Brennan , 511 U.S. 825, 837 (1994).

       “‘A complaint that a physician has been negligent in diagnosing or treating

a medical condition does not state a valid claim of medical mistreatment under

the Eighth Amendment.’”      Green v. Branson , 108 F.3d 1296, 1303 (10th Cir.

1997) (quoting Estelle , 429 U.S. at 106)). However, delays in providing

treatment may violate the Eighth Amendment— “‘if there has been deliberate

indifference which results in substantial harm.’”   Olson v. Stotts , 9 F.3d 1475,

1477 (10th Cir. 1993) (quoting    Mendoza v. Lynaugh , 989 F.2d 191, 195 (5th Cir.

1993)). “Delays in providing medical care that courts have found to violate the

Eighth Amendment have frequently involved life-threatening situations and

instances in which it is apparent that delay would exacerbate the prisoner’s

medical problems.”    Hunt. v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999).


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       We agree with the magistrate judge’s assessment of Mr. Rashad’s Eighth

Amendment claim. Although he alleges that prison officials refused to grant his

request for treatment at a Veterans Administration facility, Mr. Rashad

acknowledges that mental health professionals are available to provide him with

treatment within the Department of Corrections. The fact that Mr. Rashad has

not been provided with treatment at the facility of his choice is insufficient to

state an Eighth Amendment claim.

       In his appellate brief, Mr. Rashad contends that the magistrate judge and

the district court erred in failing to allow him to amend his complaint and to

conduct additional discovery. Although we construe pro se pleadings liberally,

see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), we need not allow

the amendment of pleadings and the conducting of discovery when the plaintiff

has failed to assert specific facts to support his claims.   See Northington v.

Jackson , 973 F.2d 1518, 1520-21 (10th Cir. 1992). Here, there is no indication

that further proceedings would reveal valid claims against the defendants.



                                    III. CONCLUSION

       Accordingly, we AFFIRM the district court’s dismissal of Mr. Rashad’s

complaint. The district court’s dismissal counts as a “prior occasion” for the

counting purposes of 28 U.S.C. § 1915(g). See Jennings v. Natrona County


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Detention Center Medical Facility, 175 F.3d 775, 780 (10th Cir. 1999).




                                Entered for the Court,



                                Robert H. Henry
                                United States Circuit Judge




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