                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 15 1999
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 PATRICK ANTHONY CIMINO,

          Plaintiff-Appellant,
 v.

 WILLIAM A. PERRILL, Warden and
 all others known and unknown Federal
 Detention Center, Englewood,
 Colorado; DANIEL FITZGERALD,
 Associate Warden; R. J.
 ZAMPARELLI, Executive Assistant;                       No. 98-1303
 C.M. STRICKLAND, Jail                               (D.C. No. 97-Z-61)
 Administrator; RON FEEDBACK,                            (D. Colo.)
 F.D.C. Unit Manager; DR.
 KOWALSKI, Chief-of-Staff, Medical
 Dept.; MARK IPPOLITO, Hospital
 Administrator; MR. MAY, Legal
 Representative; DR. KRAUS, Staff
 Doctor; DR. TSUDA, Staff Doctor;
 JUDI SWANSON, Radiologist; BILL
 WELCH, Pharmacist,

      Defendants-Appellees.


                             ORDER AND JUDGMENT *


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) 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not binding precedent, except under the doctrines of law of the case, res judicata,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
                                                                       (continued...)
Before BRORBY, EBEL and LUCERO, Circuit Judges.




      Plaintiff-Appellant Patrick Anthony Cimino, proceeding pro se, brought a

claim under Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics,

403 U.S. 388 (1971), and alleged violations of his constitutional rights that

occurred while he was a pre-trial detainee at the Federal Detention Center

(“FDC”) located in Englewood, Colorado. Cimino alleges that Defendants-

Appellants William Perrill, et al. (“Defendants”) were deliberately indifferent to

Cimino’s severe back injuries and that Defendants violated a district court order

that required Defendants to improve their medical care. Defendants filed a

Motion to Dismiss or Alternatively Motion for Summary Judgment. The motion

was referred to a magistrate judge, who recommended granting summary

judgment. The district court affirmed and adopted the magistrate’s

recommendations. This appeal followed. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we affirm in part and reverse in part. 1




      *
       (...continued)
conditions of 10th Cir. R. 36.3.
      1
       We grant both Cimino’s and Defendants’ motion to supplement the record
on appeal.

                                        -2-
      We review the grant of summary judgment de novo, applying the same legal

standard the district court used. See Kaul v. Stephan, 83 F.3d 1208, 121 (10th Cir.

1996). Summary judgment is appropriate “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

view the evidence and draw reasonable inferences therefrom in the light most

favorable to the party opposing summary judgment (i.e., the “nonmovant,” who in

this case is Cimino). See Byers v. City of Albuquerque, 150 F.3d 1271, 1274

(10th Cir. 1998).

       Once the party that asked for summary judgment shows the absence of a

genuine issue of material fact, the nonmovant “cannot rest upon his or her

pleadings, but must bring forward specific facts showing a genuine issue for trial

as to those dispositive matters for which [he or she] carries the burden of proof.

The mere existence of a scintilla of evidence in support of the nonmovant’s

position is insufficient to create a dispute of fact that is < genuine’; an issue of

material fact is genuine only if the nonmovant presents facts such that a

reasonable jury could find in favor of the nonmovant.” Craig v. Eberly, No. 97-

1308, __ F.3d __, 1998 WL 886748, at * 2 (10th Cir. Dec. 21, 1998) (internal

quotations and citations omitted).


                                           -3-
      Before analyzing the relevant facts, we must first address the medical

standard of care owed Cimino. It is undisputed that convicted inmates are

protected from “deliberate indifference” to their serious medical needs. See

Estelle v. Gamble, 429 U.S. 97, 104 (1976). Cimino asserts, however, that

because he was a pre-trial detainee, he was entitled to greater protection than

convicted inmates. This is not the law of the Tenth Circuit. “[I]n this circuit a

prisoner, whether he be an inmate in a penal institution after conviction or a

pre-trial detainee in a county jail, does not have a claim against his custodian for

failure to provide adequate medical attention unless the custodian knows of the

risk involved, and is < deliberately indifferent’ thereto.” Barrie v. Grand County,

Utah, 119 F.3d 862, 868-69 (10th Cir. 1997); see also Myers v. Oklahoma County

Bd. of County Comm’rs, 151 F.3d 1313, 1320 (10th Cir. 1998) (“Although the

Eighth Amendment applies only to convicted inmates, the Fourteenth

Amendment’s Due Process Clause guarantees pretrial detainees the same degree

of medical attention as the Eighth Amendment provides for inmates.”) (emphasis

added).

       An official acts with deliberate indifference if his or her conduct

“disregards a known or obvious risk that is very likely to result in the violation of

a prisoner’s constitutional rights.” Barrie, 119 F.3d at 869 (quoting Berry v. City

of Muskogee, 900 F.2d 1489, 1496 (10th Cir. 1990)); see also Craig, 1998 WL


                                         -4-
886748, at *5. “[I]n the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute < an unnecessary and wanton

infliction of pain’ or to be < repugnant to the conscience of mankind.’ Thus, 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. Medical malpractice does not become a constitutional violation

merely because the victim is a prisoner.” Estelle, 429 U.S. at 105-06.

      Our careful study of the record leads us to conclude that, for all but one of

Cimino’s claims, there is no genuine issue as to any material facts that Defendants

acted with “deliberate indifference.” The one claim for which a genuine dispute

exists is whether Defendants, knowing the condition of Cimino’s back, forced

Cimino to carry a sixty-pound mattress down a flight of stairs. (App. Doc. 45,

Affidavit ¶ 9; Aplt. Br. at 14.) For all remaining claims, we find as a matter of

law that Defendants did not act with “deliberate indifference.”

      It is undisputed that prior to becoming a pre-trial detainee on May 20,

1996, Cimino had suffered a serious, debilitating back injury that required eight

spinal surgeries. (App. Doc. 45, at 5; App. Doc. 43, at 5.) Eight days after

incarceration, Cimino was treated by defendant Dr. Kowalski, who prescribed two

types of medication (Flexeril and Paracetamol) for pain. (App. Doc. 43, Exhibit

A, at 3.) Dr. Kowalski also issued a “Medical Report of Duty Status” that


                                         -5-
classified Cimino as medically unassignable for work, required that Cimino sleep

in a lower bunk bed with an extra pillow to support his legs, and prohibited

Cimino from lifting anything weighing more than ten pounds and participating in

any physical recreation other than walking. (Id. Exhibit C.) Three days later,

Cimino visited defendant Dr. Tsuda who continued Cimino’s Paracetamol

prescription. (Id. Exhibit A, at 4.) On June 11, Dr. Kowalski once again treated

Cimino, continued to prescribe Paracetamol, and also prescribed Vistaril to help

Cimino sleep. (Id. at 5-6.)

      On July 9, defendant Dr. Kraus examined Cimino and made a note to work

with the FDC Unit Manager to designate Cimino to a rehabilitation-hospital

facility. (Id. at 7.) On July 23, Dr. Kowalski treated Cimino, discontinued

Vistaril, but prescribed Benadryl for sleep. (Id. at 7-8.) Dr. Kowalski also called

Dr. Ken Yonemura, the doctor who performed the most recent surgery on Cimino,

to help detail some of Cimino’s medical history, which included a fusion at the

L5-S1 level of the spine. (Id. at 8.) Three days later, orthopedic surgeon Dr. Peter

L. Weingarten, who had reviewed Cimino’s films at Dr. Kowalski’s request,

wrote a letter to Dr. Kowalski. (Id. Exhibit D.) That letter confirmed the fusion

at the L5-S1 level and stated that the “overall alignment appears satisfactory.” 2


      2
        Dr. Weingarten did admit that the “quality of the films is not adequate to
fully evaluate the solidity of the fusion or whether or not there is motion during
                                                                        (continued...)

                                        -6-
(Id.) On July 28, Cimino sent an inmate request to Dr. Kowalski complaining of

back problems and asking for Cimino’s medical file. (Id. Exhibit E.) This

request was “not an emergency.” (Id.) Dr. Kowalski responded that the most

“recent x-rays showed no acute changes” and that Cimino was scheduled for an

orthopedic surgery consultation. (Id.)

      On July 30, Dr. Kowalski ordered a request for consultation for Cimino’s

history of back trouble, which included spinal trauma, Spondylolisthesis, and

multiple surgeries. (Id. Exhibit F.) On August 23, Dr. Tsuda treated Cimino for a

sore throat, runny nose, and cough. (Id. Exhibit A, at 11.) On September 27,

defendant Mark Ippolito, the Health Service Administrator, reported a

conversation he had with Dr. Yonemura. (Id. at 11-12.) Dr. Yonemura stated that

his only long-term concerns for Cimino’s back were progression of neurological

deficit to include central region of the cord, epidural abcer, and instability in the

device, and if these were to occur, surgery might be needed. (Id.) On October 22,

Dr. Weingarten examined Cimino for his complaints of a clicking sensation and

pain the lumbar region. (Id. Exhibit H.) The report from that examination stated

that the “click does not appear particularly painful and is soft in quality. The

remainder of the exam is essentially unremarkable. The mobility of the spine is



      2
        (...continued)
the flexion-extension view.” (App. Doc. 43, Exhibit D.)

                                          -7-
relatively good at this time, and the patient does not appear to be in severe pain at

the time of the exam.” (Id.) One week later, Dr. Robert J. Wolk issued a

radiologic consultation report, which concluded that the area of Cimino’s fusion

and the sacrum “appears stable.” (Id. Exhibit I.)

      On November 6, Dr. Kraus ordered that Cimino be seen by a Health

Promotion Disease Prevention consult for physical evaluation and instructions

which were to include McKenzie exercises. (Id. Exhibit A, at 13.) On November

12, Dr. Stewart Weinerman, an orthopedic, examined Cimino, and noted that a

follow-up on the instructions was to occur once the consult was returned. (Id. at

14.) Two days later, Cimino received refills on Benadryl and Motrin. (Id.) The

next day three orthopedic surgeons (including Drs. Weinerman and Weingarten)

issued a report after examining Cimino’s most recent x-rays. The report

concluded that, given Cimino’s medical history, which includes eight back

surgeries, Cimino “definitely should expect to experience chronic life-long back

pain and any additional surgery will certainly not relieve him of all pain.” (Id.

Exhibit J.) The reported added that Cimino’s “management should be

conservative with a self-directed exercise program, good back hygiene, and

avoidance of trauma. Current treatment program at FCI Englewood is adequate

and appropriate. The plan includes regular monitoring by the medical [staff] with




                                         -8-
orthopedic back-up. Presently, non-narcotic pain medication should suffice.” (Id.)

      On December 2, Dr. Kowalski treated Cimino and provided Benadryl and

Paracetamol. (Id. Exhibit A, at 14-15.) On December 30, Cimino was treated for

bronchitis. (Id. at 16.) This was the last time Cimino was treated by Defendants

because on January 31, Cimino was transferred to a correctional facility in Texas.

      This detailed, chronological history of Cimino’s medical records allows us

to reach two conclusions. First, on this record, there is a disputed issue of fact as

to whether Defendants forced Cimino, against doctors’ orders, to carry a sixty-

pound mattress down a flight of stairs. At this point it would be premature to

grant summary judgment on this particular claim because the fact is disputed and,

if proven, establishes that Defendants showed deliberate indifference to Cimino’s

health by creating the “unnecessary and wanton infliction of pain.” Estelle, 429

U.S. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 182-83 (1976)).

      On the other hand, Cimino’s detailed medical history shows beyond doubt

that Cimino was a prodigious user of Defendants’ medical facilities and services.

It is no surprise that both the magistrate and the district court below characterized

the amount of medical care Cimino received as “extensive.” Not only did Cimino

receive a vast quantity of medical care, but (aside from the one claim described

above) there is nothing in the record to suggest that the quality of care received

was cruel and unusual. Besides the allegation that Cimino was forced to carry a


                                         -9-
heavy mattress, there is simply no other evidence of any physical injury to Cimino

caused by any acts or omissions of Defendants. Cimino has offered only

conclusory allegations that Defendants intentionally prevented him from receiving

proper medical care by falsifying his medical records. (Aplt. Br. at 9-10.) Such

allegations do not fulfill a nonmoving party’s obligation when faced with contrary

evidence and a motion for summary judgment. See Handy v. Price, 996 F.2d 1064,

1068 (10th Cir. 1993). 3

      Cimino also argues that Defendants engaged in conduct that delayed him

from receiving a different course of medical treatment from his outside

physicians. However, as the Supreme Court has explained, “[T]he question

whether . . . additional . . . forms of treatment is indicated is a classic example of

a matter for medical judgment. A medical decision not to order an X-ray, or like

measures, does not represent cruel and unusual punishment. At most it is medical

malpractice.” Estelle, 429 U.S. at 107, see also Olson v. Stotts, 9 F.3d 1475, 1477

(10th Cir. 1993) (stating that differences of medical opinion do not violate a

prisoner’s constitutional rights). Moreover, it is undisputed that even after the

alleged delay, when three outside orthopedic surgeons reviewed the most updated

x-rays of Cimino, those surgeons concluded that Defendants’ treatment programs



      3
        As of yet, the record contains no contrary evidence that Defendants did
not force Cimino to carry a heavy mattress, despite the condition of his back.

                                        - 10 -
were “adequate and appropriate.” In other words, even if there had been no

delay, Cimino would not have received a different form of treatment. Therefore,

it cannot be said that the alleged delay violated Cimino’s Eight Amendment

rights.

          Finally, Cimino argues that Defendants were deliberately indifferent in

ignoring a court order, issued by the Honorable Judge Daniel B. Sparr during

Cimino’s criminal case, to improve Cimino’s medical care. (Aplt. Br. at 11-12,

14-15.) We reject this argument because Judge Sparr made no such order. Judge

Sparr’s order in its entirety reads:

          The medical department at the Federal Detention Center is directed to
          either: (1) submit to the court within ten (10) days of the date of this Order
          a report indicating the nature of Defendant Cimino’s back problem and
          what, if any treatment is available to him, or (2) show cause in writing
          within ten (10) days of the date of this Order why such report cannot be
          furnished.

Defendants were ordered only to submit a report detailing the extent of Cimino’s

back injuries and the medical care, if any, Cimino received. Defendants were not

ordered to improve their medical care.

          In sum, the district court properly granted summary judgment for

Defendants, except for the disputed fact regarding the heavy mattress. Therefore,




the judgement of the district court is AFFIRMED in part and REVERSED in part.

                                            - 11 -
The mandate shall issue forthwith.

                               ENTERED FOR THE COURT


                               David M. Ebel
                               Circuit Judge




                                - 12 -
