                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     _____________

                                     No. 97-1314NE
                                     _____________

John A. Logan,                           *
                                         *
            Appellant,                   *
                                         *
      v.                                 * On Appeal from the United
                                         * States District Court for the
                                         * District of Nebraska.
Harold Clarke; John I. Cherry, Jr., Dr.; *
and Dr. Schroenrock,                     *
                                         *
            Appellees.                   *
                                    ___________

                               Submitted: June 10, 1997
                                     Filed: July 10, 1997
                                      ___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
      WOLLMAN, Circuit Judge.
                              ___________

RICHARD S. ARNOLD, Chief Judge.

       John Logan, a prisoner in the Nebraska State Penitentiary (NSP), filed this action
against the defendants for their alleged failure to treat his ailments in an appropriate and
timely manner. The District Court1 granted summary judgment for each of the
defendants. We affirm.



       1
      The Hon. Richard G. Kopf, United States District Judge for the District of
Nebraska.
                                           I.

       Logan was committed to the custody of the Nebraska Department of
Correctional Services (DCS) in March of 1995. A diagnosis there indicated that he
suffered from degenerative disc disease. Defendants, Doctors John Cherry and
Reginald Maixner,2 and Matthew Schroenrock, a physician’s assistant,3 met in April
to discuss Logan’s medical situation. They concluded that Logan should receive a trial
treatment of lumbar steroidal blocks. They also decided to avoid prescribing narcotic
pain medication for Logan because he had a history of abusing narcotics.

        Logan was scheduled to receive the lumbar blocks in mid-May, but refused to
go on the appointed day. The explanation offered by defendants for his refusal is that
he wished not to wear restraints. Logan says that he had not been informed of possible
side effects from the treatment. DCS has a policy that an inmate who refuses optional
medical treatment will not have that treatment offered to him again. Logan contends
he was told that if he wrote letters of apology to the appropriate parties, which he says
he did, then he might obtain another chance to receive the treatment. Logan did not
later receive this particular treatment.

      Logan was transferred to NSP in June. Shortly after his arrival he saw Dr.
Cherry for treatment of his back pain, and to request a lower bunk in his cell and a bed
board for his back. Cherry determined that Logan did not suffer from one of the


      2
        Dr. Maixner died while this appeal was pending. He has been dismissed from
this appeal without prejudice to reinstatement if an estate is opened for him. See Fed.
R. App. P. 43(a).
      3
        Defendant Harold Clarke is the Director of DCS. Nothing in the record
suggests that his involvement in Logan’s treatment went beyond having supervisory
authority over the other defendants and promulgating regulations that were applied to
Logan’s situation.

                                          -2-
medical conditions that NSP requires an inmate to have in order to warrant assignment
to a lower bunk. The bed-board request was likewise denied. Cherry also denied
Logan’s request for special shoes that would relieve his back pain, but did request that
his shoes be checked for proper fit. (At a staff meeting in July the doctors determined
that because Logan had no foot deformity, orthopedic shoes would not be appropriate
treatment.) He suggested that Logan take Tylenol or aspirin for his pain, in lieu of the
prescription medication requested by Logan. Cherry did provide Logan with some
Ibuprofen, as he had requested, later that month and in July.

       In July, Dr. Cherry again saw Logan, this time for a rash on his legs. He opted
not to treat what he diagnosed as lichen planus, a fungal skin infection, at that time
because studies have shown that the disease often goes away without treatment. A few
days later Cherry again saw Logan regarding the rash, and told him that he should stop
scratching it, as that was exacerbating the problem. A week after that Cherry saw
Logan again, and prescribed Lotrisone, an anti-fungal skin cream.

       In August, Logan relodged his requests for a bottom bunk and orthopedic shoes,
and asked for more Ibuprofen. Cherry denied the first two requests because there was
no medical necessity, and suggested that Logan use Tylenol or aspirin as a pain killer.
Later in August, Logan saw Dr. Maixner, who examined his rash, and took a culture
of one of the lesions on Logan’s leg. Maixner prescribed Ampicillin and Motrin, and
instructed Logan to clean his lesions twice daily with Phisoderm. This course of
treatment proved effective in its first few days, and Maixner instructed Logan to
continue with it. At a staff meeting, the doctors again considered Logan’s request for
a lower bunk, which they determined he did not need, although they concluded that he
should be seen by an orthopedic specialist. Dr. Cherry referred Logan to such a
specialist when he met with Logan at the end of August. Logan saw the orthopedic
specialist in early September. The specialist recommended that Logan see a physical
therapist and be provided with special insoles. Logan received the insoles the same
day, and saw a physical therapist six days later, who prescribed a variety of exercises.

                                          -3-
        Later in September, Logan again saw Dr. Maixner about his rash. Maixner
concluded that Logan had had an adverse reaction to the antibiotic that he had
prescribed previously, so he prescribed a different antibiotic as well as an antihistamine
to reduce Logan’s itching. A week later the staff decided that Logan should see a
dermatologist for his rash. In mid-October, Logan met with a dermatologist via
Telemed,4 who prescribed an anti-inflammatory ointment and more antihistamines. A
month later, Maixner suggested that Logan be hospitalized in order that he could be
treated more comprehensively and regularly, but Logan refused. Instead, Logan was
scheduled to see another dermatologist. Until then, Logan continued to receive pain-
killers and antihistamines, with a short break in his prescription for the latter because
of the doctor’s concerns about addiction. In mid-December, Logan saw the
dermatologist, who commenced an aggressive treatment. Shortly thereafter, Logan
returned the drugs he was given to the guards and refused to take any further
medication. He later agreed to restart his course of medicine.

      Logan filed his complaint in the District Court in October 1995 and amended it
in December 1995. On cross-motions for summary judgment, the District Court
granted the defendants’ motion and denied the plaintiff’s motion on the ground that the
defendants were not deliberately indifferent to Logan’s needs. Logan then took this
appeal.

                                           II.




      4
       Telemed is a system that transmits digital pictures of a patient, or other medical
information, over a telephone line connected to a computer at a hospital. Doctors there
may then diagnose the condition and respond with an appropriate treatment. Its
principal advantage is that it permits diagnosis without requiring the prison to transport
an inmate to an outside health-care facility.

                                           -4-
       To establish that the defendants’ conduct amounted to a violation of the Eighth
Amendment’s prohibition of cruel and unusual punishment, Logan must demonstrate
that the defendants were deliberately indifferent to his serious medical needs. Estelle
v. Gamble, 429 U.S. 97, 105 (1976). To show deliberate indifference, Logan must
prove that the prison doctors knew of, yet disregarded, an excessive risk to his health.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Logan has demonstrated two medical
needs that, at least for purposes of our review of the District Court’s grant of summary
judgment, were serious: substantial back pain and a painful fungal skin infection.
Logan’s principal claim of deliberate indifference comes from the delay in referring him
to a specialist, but he also contends that his treatment was generally substandard. We
do not agree that either the delay or the quality of treatment fell to the level of
deliberate indifference.

       The evidence, when viewed most favorably to Logan, demonstrates that the
prison doctors attempted to treat Logan on numerous occasions, beginning before his
arrival at NSP. The doctors offered Logan an opportunity to receive pain-killing
treatment for his back. Although Logan may have refused this treatment because he
had not been apprised of the potential risks, the prison’s offer demonstrates the doctors
were not consciously disregarding his need. The prison doctors subsequently offered
Logan other types of pain killers, although their choices were limited by concerns over
Logan’s history of drug abuse. Logan does not claim that the painkillers he was given
were completely ineffective. He cannot expect them to eliminate all pain — painkillers
usually do not. The doctors did refuse to issue Logan a bottom bunk and special shoes,
but Logan has not demonstrated that they did not consider his asserted needs in good
faith. The doctors rejected the request for shoes because they did not consider them
a solution to Logan’s problem and rejected his request for a bunk because he did not
meet the requisite criteria, which we do not think were unreasonably applied to Logan’s
case. We think the efforts the prison doctors took to allay Logan’s pain, while perhaps
not as extensive as those a private health-care provider might have taken, did not reflect
deliberate indifference to his medical needs.

                                           -5-
       Logan’s other medical need was a cure for his skin infection. The first visit to
a prison doctor resulted in a conclusion that the condition might clear up by itself.
When it did not, the prison doctors, within a month of Logan’s initial complaint,
prescribed medication and further treatment. The treatment became more aggressive
as the doctors realized the fungus was not going away. Logan was seen by a
dermatologist within three months of his initial complaint, and more extensive treatment
was offered. The doctors’ efforts, which were impeded by Logan’s apparent inability
or refusal to follow their instructions, cannot be said to have been deliberately
indifferent. Although the prison doctors may not have proceeded from their initial
diagnosis to their referral to a specialist as quickly as hindsight perhaps allows us to
think they should have, their actions were not deliberately indifferent. The doctors
made efforts to cure the problem in a reasonable and sensible manner.

      Affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -6-
