                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                September 7, 2012
                               TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 EARL WILLIAM CAMPBELL, JR.,

             Plaintiff - Appellant,
                                                        No. 11-1468
 v.                                        (D.C. No.1:09-CV-01041-CMA-KLM)
                                                       (D. Colorado)

 DR. GAGEN SINGH, M.D.; DR.
 PAULA FRANTZ, M.D.; KATHERN
 RITTENHOUSE, P.A.C.; SERGEANT
 JOHNSON, LU-3, Sterling Regional
 Medical Center,

             Defendants - Appellees.




                          ORDER AND JUDGMENT *


Before MURPHY, EBEL, and HARTZ, Circuit Judges.


      In May 2009 Plaintiff Earl William Campbell filed a complaint under

42 U.S.C. § 1983 in the United States District Court for the District of Colorado


      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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.
alleging that 11 defendants violated his constitutional rights while he was a

prisoner at Sterling Correctional Facility (the Correctional Facility) in Sterling,

Colorado. The district court dismissed some claims in Plaintiff’s amended

complaint for failing to state a claim, allowed Plaintiff to file a final amended

complaint, and then granted summary judgment against Plaintiff on the remaining

claims. On appeal Plaintiff challenges only the dismissal of his claims under the

Eighth Amendment for cruel and unusual punishment. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

I.    THE ALLEGATIONS

      Plaintiff’s amended complaint and final amended complaint allege

misconduct over several years. Some allegations were disputed or explained by

the defendants in responsive pleadings, but we begin by reciting Plaintiff’s

version.

      In 2001 Plaintiff was diagnosed with a torn anterior cruciate ligament

(ACL). In September 2002 defendant Dr. Floyd Pohlman performed

reconstructive surgery to repair the tear. After months of pain during which

Plaintiff complained repeatedly about how his knee was healing, Plaintiff had an

MRI of the knee in September 2003. It revealed that the ACL graft had failed, so

Plaintiff had a second surgery the following month. Plaintiff returned to the

Correctional Facility the day after surgery and was not provided any walking aids.




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      The next day, Plaintiff was walking to obtain his medicine when he slipped

on icy pavement. After some delay he was taken by ambulance to Sterling

Regional Medical Center, where he had surgery to repair a broken patella and a

torn patellar tendon. At that time Pohlman told Plaintiff that he was unsure

whether the fall had affected the ACL graft.

      After returning to the Correctional Facility, Plaintiff’s knee was very

painful and he requested medical attention and treatment—requests that, for a

period of time, were either ignored or denied. On December 5, 2003, Plaintiff

complained about the pain and showed the housing staff his knee, which was

swollen, hot to the touch, and showed signs of infection. Plaintiff was taken to

Denver Receiving and Diagnostic Center for antibiotic treatment and then to

Denver Health Medical Center, where his knee was debrided and the incision

closed. He returned to the Correctional Facility on December 23. Over the next

months, Plaintiff’s knee became somewhat better and his mobility improved,

although it continued to be very painful and he had no pain medication.

      On August 27, 2004, Plaintiff received follow-up care at Denver Health.

After this appointment, a group of healthcare providers, including several

defendants, determined that no further treatment or consultations associated with

Plaintiff’s left knee would be authorized. Even so, sometime in November or

December of that year, Plaintiff was evaluated by McDonald Physical Therapy




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and Sports Medicine, which recommended additional surgery and a knee brace.

Plaintiff was given a knee brace that was improperly fitted.

        About one year later, on November 23, 2005, defendant Leon Johnson, a

corrections officer, moved Plaintiff to a top bunk. Plaintiff fell from the top

bunk, requiring an ambulance trip to Sterling Regional Medical Center for

injuries to his head and left knee. Over the next several years, he suffered from

pain and disorientation resulting from these injuries.

        Plaintiff received an MRI in January 2006, which showed that the ACL

graft had not taken and his knee was unchanged from the September 2003 MRI

that justified his second surgery. In February 2007 defendant Dr. Paula Frantz

informed Plaintiff that he would be receiving no additional treatment beyond a

cane and daily Tylenol.

II.     STANDARD OF REVIEW

        We review de novo the district court’s dismissal for failure to state a claim

under Fed. R. Civ. P. 12(b)(6). See Casanova v. Ulibarri, 595 F.3d 1120, 1124

(10th Cir. 2010). To survive a Rule 12(b)(6) motion, a plaintiff’s well-pleaded

factual allegations must, when taken as true and viewed in the light most

favorable to the plaintiff, state a claim for relief “‘that is plausible on its face.’”

Id. at 1124 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Because [Plaintiff] is proceeding pro se, we liberally construe his filings.” Id. at

1125.

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       We also review de novo a district court’s grant of summary judgment under

Fed. R. Civ. P. 56(a). See Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1277

(10th Cir. 2010). Summary judgement 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). We view the evidence in the

light most favorable to the party opposing summary judgment. See Roberts v.

Barreras, 484 F.3d 1236, 1239 (10th Cir. 2007).

III.   DISCUSSION

       The district court dismissed without prejudice the claims against defendant

Brian Webster because he was never served. We affirm. The dismissal was

clearly correct and not challenged in Plaintiff’s appellate briefs.

       The claim against defendant Dr. Floyd Pohlman was dismissed with

prejudice as barred by the statute of limitations. The complaint alleged no action

by Pohlman after October 2003. The only issue below was whether the

limitations period was extended by equitable tolling because of representations

that Plaintiff would receive further treatment. But Pohlman filed an affidavit that

his last communication with Plaintiff was in January 2004 and that he moved to

Hawaii in 2006. No admissible evidence contradicted these statements. And

Plaintiff does not argue the tolling issue on appeal. We affirm.

       Defendant Sterling Regional Medical Center was dismissed with prejudice

on the ground that it could not be held liable for the conduct of physicians who

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practice there. See Rosane v. Senger, 149 P.2d 372, 374 (Colo. 1944) (“That a

hospital employs doctors on its staff does not make it liable for the discharge of

their professional duty since it is powerless, under the law, to command or forbid

any act by them in the practice of their profession.”); Estate of Harper v. Denver

Health & Hosp. Auth., 140 P.3d 273, 275–78 (Colo. App. 2006) (describing

statutory developments making clear that “legal relationships do not expose

professional corporations and hospitals to vicarious liability for the negligent acts

of their medical professionals”). Plaintiff does not argue this point on appeal, and

we affirm.

      Several defendants were alleged to have violated the Eighth Amendment in

providing (or failing to provide) medical treatment to Plaintiff: Dr. Gagan Singh,

Dr. Paula Frantz, nurse practitioner Kathern Rittenhouse, physician assistant

Joann Stock, and Dr. J.G. Fortunato. The Eighth Amendment requires that

“prison officials . . . ensure that inmates receive adequate food, clothing, shelter,

and medical care, and . . . take reasonable measures to guarantee the safety of the

inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation

marks omitted). For a prison official’s action to violate the Eighth Amendment,

two requirements must be met. First, the inmate must be deprived of a serious

need. See id. at 834 (“[T]he deprivation alleged must be, objectively, sufficiently

serious . . . [and] result in the denial of the minimal civilized measure of life’s

necessities.” (citations and internal quotation marks omitted)). Second, the

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official must act with deliberate indifference to the inmate’s health or safety. See

id. An official’s failure to act is with deliberate indifference when that official is

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

serious harm exists, and . . . also draw[s] the inference.” Id. at 837.

      The district court properly ruled that the claims against these five

defendants should be dismissed with prejudice because of failure to allege

adequately or failure to produce evidence that any of them acted with deliberate

indifference to Plaintiff’s medical needs. At most, Plaintiff showed his difference

of opinion regarding his treatment, but a medical provider does not violate the

Eighth Amendment simply by rejecting a patient’s requests, or even by

negligence. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[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.”);

Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002) (“medical difference

of opinion . . . is not actionable under the Eighth Amendment”).

      Plaintiff alleged that defendant Leon Johnson, a sergeant with the Colorado

Department of Corrections, violated his Eighth Amendment rights by forcing him

to move to a top bunk in November 2005 despite knowing that his knee problems

would make such a move dangerous, and then harassed him after he filed a

grievance against Johnson. We affirm the grant of summary judgment against

Plaintiff on this claim. As stated by the magistrate judge, Johnson’s affidavit

                                          -7-
showed that there was “no genuine issue of material fact regarding whether

Johnson knew that placing Plaintiff in a top bunk posed an excessive risk to

Plaintiff’s health or safety.” Aplee. Br., Attach. 7 at 1143 (Recommendation of

United States Magistrate Judge at 15, Campbell v. Singh, No. 09-cv-01041-CMA-

KLM (Aug. 8, 2011)) (citing Farmer, 511 U.S. at 837). We further note that

Plaintiff’s allegations of retaliation are too vague to support a cause of action.

      Defendant Kevin Milyard is the warden at the Correctional Facility. He

could be subject to supervisory liability under § 1983 if he was “personally

involved in the constitutional violation,” and “a sufficient causal connection . . .

[existed] between [him] and the constitutional violation.” Serna v. Colo. Dep’t of

Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (internal quotation marks omitted).

“[A] plaintiff must establish that the supervisor acted knowingly or with

deliberate indifference that a constitutional violation would occur.” Id. at 1151

(internal quotation marks omitted). Plaintiff, however, makes no effort to argue

on appeal that Milyard was personally liable. We therefore must affirm the

dismissal of Plaintiff’s claims against him.

      Similarly, defendant Beverly Dowis was the health services administrator

for the Correctional Facility. But Plaintiff failed to allege adequately the

requisites for supervisory liability. In response to Dowis’s motion to dismiss,

Plaintiff relied solely on the general duties and responsibilities of a medical

administrator. Plaintiff does not argue on appeal, and we do not discern, any

                                          -8-
basis for her liability. We therefore affirm the district court’s dismissal of

Plaintiff’s claims against her.

      Finally, Plaintiff argues several procedural issues on appeal. First, he

complains that he was not provided an adequate opportunity for discovery before

the district court granted summary judgment. But the district court properly

observed that Plaintiff had been granted ample time for discovery, had not taken

advantage of the court’s granting him additional time to move to compel

discovery responses, and had not indicated how additional discovery would assist

him in opposing summary judgment. Second, Plaintiff’s reply brief on appeal

contends that the defendants’ brief on appeal was untimely. We disagree. On

February 22, 2012, we granted the defendants an extension of time until

March 13, 2012, to file their brief. They filed a brief on that date, but it was

defective. We ordered that a proper brief be filed within 10 days, and the

defendants filed a proper brief on March 21. Third, Plaintiff’s reply brief

complains of the Assistant Attorney General’s failure to file in district court an

entry of appearance as required by Tenth Circuit Rule 46-1. We reject this

complaint, because it was not raised until the reply brief and Plaintiff does not

explain why an appellate rule should apply in district court.




                                          -9-
IV.   CONCLUSION

      We GRANT Defendant’s motion to proceed in forma pauperis but AFFIRM

the judgment of the district court.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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