                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                         September 27, 2012
                      UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
                                   TENTH CIRCUIT



 SHAYNE E. TODD,

        Plaintiff–Appellant,

 v.                                                          No. 12-4042
                                                   (D.C. No. 2:09-CV-00808-DAK)
 ALFRED BIGELOW, Warden; DENNIS                               (D. Utah)
 SORENSEN, also known as FNU
 Sorenen; JOHN IRONS, also known as
 FNU Irons; RICHARD GARDEN,
 Doctor; BRUCE BURNHAM, Doctor;
 JASON OKERLUND; SARA
 DONALDSON; STEVEN
 FITZGERALD; STEVEN HYATT, also
 known as FNU Hyatt; MEL COULTER,
 Captain; TOM ANDERSON, Captain,

        Defendants–Appellees.


                               ORDER AND JUDGMENT*


        * 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Shayne E. Todd, a Utah prisoner proceeding pro se, appeals from the district

court’s grant of summary judgment to defendants on his 42 U.S.C. § 1983 claim.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                              I

       While in prison, Todd was prescribed Neurotin, a neuropathic pain reliever, to

help ameliorate hip and back pain caused by a degenerative disorder. In February 2008, a

prison nurse gave Todd three Neurotin pills to swallow. In accordance with prison

procedures designed to prevent abuse, the nurse requested that Todd open his mouth so

that she could see whether he had swallowed the pills. The nurse saw that Todd was

actually hiding the pills in his cheek. When asked again to swallow the pills, Todd

instead hid them under his upper lip. The nurse ordered Todd to spit out the pills and

notified the treating physician, who quickly terminated Todd’s prescription based on the

“cheeking” incident. According to Todd, he did not swallow his pills that day because

the nurse did not provide him with enough water.

       In the following month, Todd repeatedly requested that his Neurotin prescription

be reinstated. Medical staff refused, but offered to prescribe other pain relievers less

prone to abuse. At first Todd refused these medications, but in May he accepted a

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prescription for Elavil, a medicine his treating physician calls “accepted and effective.”

       Todd then filed suit against several prison officials, alleging that the deprivation of

Neurotin violated the Eighth and Fourteenth Amendments. Todd requested that the

district court appoint him counsel, but the district court denied his request. Defendants

later moved successfully for summary judgment. Todd now appeals.

                                              II

       We review a grant of summary judgment de novo, “viewing the evidence in the

light most favorable to the nonmoving party.” Howard v. Waide, 534 F.3d 1227, 1235

(10th Cir. 2008). Summary judgment is warranted only if the movant shows that there is

no genuine dispute of material fact and the movant is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(a). We liberally construe Todd’s pro se filings. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

       A prison official’s deliberate indifference to an inmate’s serious medical needs

violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).

“Deliberate indifference” involves both an objective and a subjective component. See

Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component is met if a

deprivation is “sufficiently serious,” id., which requires that “it is one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Hunt v. Uphoff,

199 F.3d 1220, 1224 (10th Cir. 1999) (quotation omitted). The subjective component is
                                         –3–
met if a prison official “knows of and disregards an excessive risk to inmate health or

safety.” Farmer, 511 U.S. at 837.

       We conclude that Todd has not shown that the prison officials were indifferent to

his medical needs.1 To the contrary, the record shows that the officials acted

responsively and appropriately. On appeal from summary judgment, we must assume the

veracity of Todd’s assertion that he did not intend to retain the pills for later use or

distribution, but merely lacked enough water to swallow them. But even if the medical

staff was incorrect to conclude that Todd intended to abuse his medication, that erroneous

assessment does not rise to the level of deliberate indifference. Cf. Estelle, 429 U.S. at

106 (holding that a prison physician’s negligence does not amount to an Eighth

Amendment violation). Instead, it reflects a legitimate penological interest in prevention

of drug abuse. Cf. Johnson v. Richins, 438 F. App’x 647, 649 (10th Cir. 2011)

(unpublished) (prison officials were not deliberately indifferent when they suspended

Neurotin prescription because they suspected inmate was “cheeking” pills).

       Moreover, it is undisputed that after the “cheeking” incident Todd was seen by

medical staff and offered alternative pain medications that were less susceptible to abuse.

To be sure, Todd asserts that Elavil—the alternative medication he eventually accepted—


       1
        In light of our conclusion on this point, we need not evaluate the seriousness of
Todd’s ailments.


                                             –4–
had detrimental side effects and was not as effective as Neurotin. But a difference of

opinion with the medical staff as to the optimal pain-management regimen does not

amount to deliberate indifference. See Thompson v. Gibson, 289 F.3d 1218, 1222 (10th

Cir. 2002) (“[A] medical difference of opinion . . . is not actionable under the Eighth

Amendment.”).

       Todd also claims that he was deprived of his Due Process rights because his

numerous administrative grievances did not spur the re-authorization of his Neurotin

prescription. But prisoners have no liberty interest in prison grievance procedures. See

Boyd v. Werholtz, 443 F. App’x 331, 332 (10th Cir. 2011) (unpublished) (citing

Bingham v. Thomas, 654 F.3d 1171, 1177-78 (11th Cir. 2011), and Buckley v. Barlow,

997 F.2d 494, 495 (8th Cir. 1993) (per curiam)). Accordingly, any claim of right to these

procedures is not cognizable under the Due Process Clause. In his complaint, Todd also

appears to claim that the Due Process Clause protects his right to obtain medication and

ensure its proper administration. We know of no authority that would support such a

proposition, and Todd has not cited any.

       Finally, Todd appears to challenge the district court’s denial of his request for

appointed counsel. We will reverse a district court’s decision on this point only in

“extreme cases where the lack of counsel results in fundamental unfairness.” Hill v.

SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). We conclude that

Todd’s is not such a case.
                                            –5–
                                             III

       AFFIRMED. We DENY Todd’s motion to proceed in forma pauperis on appeal

because he has failed to make a “reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991). Appellant is ordered to pay the entire filing fee in full. All other

pending motions are DENIED.



                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




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