                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      January 26, 2006
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 FRED STEPNAY, JR.,

          Plaintiff-Appellant,
 v.

 DENNIS GOFF, ARNP, Medical Care
 Provider; JANET MYERS, Health
                                                       No. 05-3203
 Service Administrator; JO RENE
                                               (D.C. No. 04-CV-3246-GTV)
 KERNS, Resident Agent of Correct
                                                         (D. Kan.)
 Care Solutions; LOUIS E. BRUCE,
 Warden, Hutchinson Correctional
 Facility; and KANSAS
 DEPARTMENT OF CORRECTIONS,
 Secretary of Corrections,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.




      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. 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.
      Plaintiff-Appellant Fred Stepnay, Jr., a state prisoner, brought a pro se

§ 1983 claim against the Kansas Department of Corrections and various state

officials (“Defendants”) alleging they provided him with constitutionally

inadequate medical care for a skin condition. The district court dismissed the

action under 28 U.S.C. § 1915(e)(2)(B)(ii) because Mr. Stepnay failed to state a

claim upon which relief could be granted. Because we cannot say that allowing

Mr. Stepnay to amend his complaint would be futile, the district court erred in

dismissing his complaint under § 1915(e)(2)(B)(ii).

I. Background

      In November 2003, Mr. Stepnay developed a skin condition. Defendant

Dennis Goff, a nurse practitioner, treated Mr. Stepnay a number of times. In

February 2004, after three months of treatment from Mr. Goff, Mr. Stepnay was

denied his request for a referral to a physician for persistent symptoms and told

that he had been properly diagnosed and was receiving the correct treatment for

his skin condition. He subsequently filed grievances with the Health Service

Administrator, the Resident Agent of Correct Care Solutions (C.C.S.), and the

Warden, all of whom responded that no further action would be taken because he

was being seen and treated as the health care provider deemed appropriate.

      Mr. Stepnay then filed a grievance with the Kansas Secretary of

Corrections and was seen by a physician on March 9, 2004. This physician


                                        -2-
diagnosed Mr. Stepnay with a staph infection and prescribed a ten-day course of

antibiotics and antibiotic soap. After ten days of this treatment, Mr. Stepnay still

suffered from the same symptoms and requested follow-up care. This request was

denied. He went through the same grievance process and was again told no action

would be taken. After filing a second grievance with the Kansas Secretary for

Corrections, Mr. Stepnay was seen by another physician on May 2004. This

physician diagnosed the skin condition as Staphylococcus Aureus (“M.R.S.A.”)

and prescribed a twenty-day course of antibiotics.

      Mr. Stepnay contends that “due to the C.C.S. staff’s and the Warden’s

deliberate indifference toward [his] medical needs, [he has] permanent scarring

on his skin and an infectious disease that will continue to recur.” Additionally, he

alleges that because he has “congestive heart failure this virus (M.R.S.A.) could

result in [his] untimely death.” He claims that Defendants’ actions in denying

him medical care violated the Eighth Amendment’s prohibition against cruel and

unusual punishment.

      After granting Mr. Stepnay’s motion to proceed in forma pauperis, the

district court concluded that Mr. Stepnay’s allegations were insufficient to state a

claim of deliberate indifference as required to state a cognizable Eighth

Amendment violation. It therefore dismissed Mr. Stepnay’s claim for failure to




                                         -3-
state a claim upon which relief may be granted pursuant 28 U.S.C.

§ 1915(e)(2)(B)(ii). Mr. Stepnay appeals that dismissal.

II. Discussion

      In order to demonstrate a violation of clearly established Eighth

Amendment rights due to inadequate medical care, “an inmate must satisfy both

objective and subjective elements.” Garrett v. Stratman, 254 F.3d 946, 949 (10th

Cir. 2001). An inmate satisfies the objective component by alleging facts

indicating the deprivation of medical care is sufficiently serious. Id. The

subjective component is met if prison officials acted with the requisite

culpability; that is, deliberate indifference. Id. Finally, “a delay in medical care

only constitutes an Eighth Amendment violation where the plaintiff can show that

the delay resulted in substantial harm.” Id. at 950 (quotations omitted).

      Although a district court may dismiss sua sponte a pro se complaint for

failure to state a claim pursuant to § 1915 or Fed. R. Civ. P. 12(b)(6), see

McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991), we have nonetheless

also held that “[s]uch a dismissal is appropriate only where 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,” Whitney v. New

Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997) (quotations omitted; emphasis

added). Although it may be unlikely that Mr. Stepnay can sufficiently allege that


                                         -4-
the prison officials acted with deliberate indifference to his serious medical

needs, it is not clear that allowing Mr. Stepnay the opportunity to amend his

complaint would be futile. In order to provide guidance to the district court and

Mr. Stepnay on remand, we focus our analysis on the deficiencies in his

complaint.

      A. Deprivation of Medical Care for Sufficiently Serious Medical
      Condition

      The deprivation of a medical need is sufficiently serious “if the condition

has been diagnosed by a physician as mandating treatment or is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.”

Garrett, 254 F.3d at 949 (quotation, alteration omitted). Although Mr. Stepnay’s

skin condition was twice diagnosed by a physician as mandating treatment, he

received that treatment as soon as it was prescribed. 1 Accordingly, the only

seemingly viable deprivation claim that exists relates to the brief window of time

when Defendants allegedly denied Mr. Stepnay follow-up care after the expiration

of his ten-day course of antibiotics despite the fact that Mr. Stepnay repeatedly

told Defendants the treatment for his staph infection had not worked. See Ramos

v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (“Deliberate indifference to serious


      1
          To the extent that Mr. Stepnay is challenging the nurse practioner’s
treatment, we note that “a prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation.” Perkins
v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999).

                                         -5-
medical needs is shown when prison officials have prevented an inmate from

receiving recommended treatment or when an inmate is denied access to medical

personnel capable of evaluating the need for treatment.”).

      Mr. Stepnay may not avoid dismissal, however, by merely asserting

conclusory allegations that his condition obviously required a doctor’s attention

because most skin conditions are not intuitively serious. Cf. Oxendine v. Kaplan,

241 F.3d 1272, 1278 (10th Cir. 2001) (holding that ineffectiveness of the prison

doctor’s reattachment and care of the inmate’s severed finger was so obvious a

lay person would recognize the need for a doctor’s attention where the inmate’s

finger tissue blackened and necrified). However, because we can at least imagine

some skin conditions that are sufficiently serious, and drug resistant infections in

a prison context might certainly be in that context, Mr. Stepnay may only avoid

dismissal by alleging specific facts indicating his condition at the conclusion of

his ten-day course of antibiotics was so obvious that Defendants should have

recognized that it required a referral for follow-up care. Thus, Mr. Stepnay could,

for instance, describe objective symptoms he manifested after the ten-day course

of antibiotics that are sufficient to trigger the need for additional treatment. 2

      B. Deliberate Indifference


      2
         Of course, Mr. Stepnay could alternatively satisfy this element by
alleging that a physician timely diagnosed his condition as mandating treatment
after the ten days of antibiotics.

                                          -6-
         The subjective component of an inmate’s Eighth Amendment claim is met

if the prison officials 1) were aware of facts from which the inference could be

drawn that a substantial risk of serious harm existed and 2) actually drew such an

inference. See Garrett, 254 F.3d at 949. Although Mr. Stepnay contends in a

conclusory fashion that Defendants acted with deliberate indifference, his current

factual allegations do not support this contention. Nothing in Mr. Stepnay’s

complaint suggests that Defendants knew of and disregarded a substantial risk to

his health or safety. To the contrary, the fact that Mr. Stepnay saw three different

health care providers, on its face, cuts against his contention and affirmatively

suggests that Defendants were not indifferent to his medical needs. At most,

then, Mr. Stepnay’s current factual allegations indicate that Defendants may have

been negligent in diagnosing or treating his skin condition. Negligence, however,

“does not become a constitutional violation merely because the victim is a

prisoner.” Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1143 (10th Cir.

2005).

         Here, Defendants might have been aware that Mr. Stepnay underwent a ten-

day course of doctor-prescribed treatment for a serious staph infection and

nevertheless refused his request for follow-up care at the expiration of that course

of treatment despite the fact that Mr. Stepnay claimed to be suffering from the

same symptoms that the nurse practitioner had already unsuccessfully attempted


                                         -7-
to treat on numerous occasions. Because “a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that the risk was obvious,”

Garrett, 254 F.3d at 950, at this stage in the proceedings we refuse to conclude

that it would be futile to allow Mr. Stepnay to amend his complaint. In order to

avoid dismissal, however, Mr. Stepnay must, for example, precisely identify facts

that were called to Defendants’ attention by the first physician to treat Mr.

Stepnay and by Mr. Stepnay himself that make obvious a substantial risk to Mr.

Stepnay. 3 See id. (“If a risk is obvious, so that a reasonable man would realize it,

we might well infer that the defendant did in fact realize it.”) (quotations and

alterations omitted); see also id. (noting that J. Hall, General Principles of

Criminal Law 118 (3d ed. 1982) “caution[s] against confusing a mental state with

proof of its existence”) (quotation omitted). If Mr. Stepnay successfully alleges

such facts, not conclusions, then Defendants’ delay in procuring adequate follow-

up care for Mr. Stepnay could be sufficient to avoid dismissal.

      C. Delay Resulting in Substantial Harm

      Mr. Stepnay has alleged that he was not seen for follow-up care until two

months after the first physician diagnosed him with a staph infection requiring


      3
         Such facts may include, for example, precise recital of descriptions,
complaints, or statements Mr. Stepnay told prison officials informing them of his
physician’s diagnosis and prescribed treatment or calling their attention to the
inadequacy of the first treatment of his condition or perhaps statements by or
notes from Mr. Stepnay’s first physician.

                                         -8-
medical attention, approximately six weeks after symptoms persisted despite

prescription antibiotics, after repeated requests for a second referral, and after

filing formal grievances. Assuming the other elements are met, delay in

providing Mr. Stepnay follow-up medical care may constitute a constitutional

violation. See Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000)

(finding several hour delay in treatment for chest pains actionable); Stack v.

McCotter, 79 F. App’x 383, 389-90 (10th Cir. 2003) (unpublished) (finding that

genuine issues of material fact existed regarding whether inmate’s delayed dental

care constituted Eighth Amendment violation); Boyd v. Knox, 47 F.3d 966 (8th

Cir. 1995) (finding three-week delay in treating infected wisdom tooth

actionable). Such delay, however, must have “resulted in substantial harm.”

Sealock, 218 F.3d at 1210.

      “[T]he substantial harm requirement may be satisfied by lifelong handicap,

permanent loss, or considerable pain.” Garrett, 254 F.3d at 950 (quotations

omitted). Mr. Stepnay alleges that “due to [Defendants’] deliberate indifference

toward [his] medical needs, [he has] permanent scarring on his skin and an

infectious disease that will continue to recur.” Additionally, he alleges that

because he has “congestive heart failure[,] this virus (M.R.S.A.) could result in

[his] untimely death.” Such facts, if later proven, would meet the substantial

harm requirement.


                                         -9-
III. Conclusion

      We express no opinion on the merits of Mr. Stepnay’s claims. However,

because “pro se litigants are to be given reasonable opportunity to remedy the

defects in their pleadings,” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir.

1991), the district court erred in dismissing Mr. Stepnay’s complaint with

prejudice without first giving him an opportunity to amend his complaint to cure

any deficiencies. We therefore REVERSE the district court’s order dismissing

the complaint with prejudice and REMAND the matter with instructions to

dismiss the complaint without prejudice to Mr. Stepnay’s right to reinitiate the

matter by filing a new complaint that sufficiently states a claim upon which relief

may be granted. 4 Mr. Stepnay’s motion to proceed on appeal pursuant to § 1915

is GRANTED. We remind Mr. Stepnay that he is obligated to continue making

partial payments until the entire fee has been paid.



                                       ENTERED FOR THE COURT



                                       David M. Ebel


      4
         Mr. Stepnay’s motion for a default judgment against Defendants pursuant
to Fed. R. Civ. P. 55(a) is DENIED because Defendants were never served with
Mr. Stepnay’s complaint. Additionally, we DISMISS Mr. Stepnay’s motion
before this court to amend or alter his complaint as moot based on our remand of
this case to the district court.

                                        - 10 -
Circuit Judge




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