                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    June 7, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT


    JOSEPH BRADSHAW,

              Plaintiff-Appellant,

    and

    TIMOTHY TUTTAMORE,

              Plaintiff,

    v.                                                  No. 11-1109
                                           (D.C. No. 1:07-CV-02422-MSK-BNB)
    LAPPIN, BOP Director; WILEY,                         (D. Colo.)
    ADX Warden; COLLINS; SUDLOW;
    KNOX; MADISON; FOSTER;
    FINLAN, Unit Team Members, DR.
    LEYBA; D.R. [sic] NAFZIGER; P.A.
    OSAGIE; DR. AMIRKHAN;
    UNKNOWN MEDICAL STAFF;
    UNKNOWN DENTIST; UNKNOWN
    UTILIZATION COMMITTEE
    MEMBERS; UNKNOWN
    PROJECTED UNIT TEAM
    MEMBERS,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *

*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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
                                                                       (continued...)
Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      Plaintiff-appellant Joseph Bradshaw is a federal prisoner appearing pro se

and in forma pauperis under 28 U.S.C. § 1915. He appeals from the district

court’s orders dismissing one of the defendants, granting summary judgment to

the remaining defendants, and denying various motions in this civil rights case

brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971). He also has three pending motions in this

court. We have jurisdiction under 28 U.S.C. § 1291, deny the pending motions,

and affirm.


                                  I. Background

      The district court reviewed the facts in detail, so we need not recite them in

detail here. In 2000, Mr. Bradshaw was convicted by a jury in federal court in

Massachusetts on six charges, including conspiracy, armed robbery of a postal

employee, and attempted murder, and he was sentenced to life in prison.

United States v. Bradshaw, 281 F.3d 278, 281-82 (1st Cir. 2002). He was also




*
 (...continued)
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
ordered to pay $94,276.00 in restitution to the United States Postal Service and

$300 in special assessments.

      Since September 2005, Mr. Bradshaw has been confined by the Bureau of

Prisons (“BOP”) at the United States Penitentiary-Administrative Maximum in

Florence, Colorado (“ADX”), which is one part of the Federal Correctional

Complex (“FCC”) at Florence. ADX implements the BOP’s Inmate Financial

Responsibility Program (IFRP), which is designed to encourage inmates to pay

their financial obligations, including restitution. See 28 C.F.R. §§ 545.10,

545.11. Mr. Bradshaw has sometimes voluntarily participated in the IFRP and at

other times has been on “refuse” status. When he participated in the IFRP, $25

per quarter was deducted from his trust account. His obligation for $300 in

special assessments has been paid in full.

      Mr. Bradshaw would like to be transferred to a less-restrictive facility. We

have recently noted that the conditions of confinement at ADX are “undeniably

harsh.” Rezaq v. Nalley, ___ F.3d ___, Nos. 11-1069, 11-1072, 2012 WL

1372151, at *11 (10th Cir. Apr. 20, 2012). “Prisoners housed in the general

population unit at ADX spend twenty-three hours a day confined to their cells.”

Id. at *1. But inmates housed at ADX may improve their conditions of

confinement by seeking admission to the Step-Down Program, “a stratified system

of less-restrictive housing to provide inmates with incentives to adhere to the

standards of conduct associated with a maximum security custody program.”

                                         -3-
R., Vol. 1, at 1078. Mr. Bradshaw would like to be admitted to ADX’s

Step-Down Program, but he no longer wishes to participate in the IFRP because

he believes that his sentence does not yet require him to pay his restitution

obligation. An inmate’s refusal to participate in the IFRP is “one of numerous

factors” relevant to the BOP’s decision as to whether an inmate is suitable for

admission to the ADX Step-Down Program, although it is “not the only factor” or

“a determinative factor.” Id. at 1065; see also id. at 1068.

      Mr. Bradshaw also has two chronic health problems: (1) hepatitis C, which

was diagnosed in the 1980’s; and (2) supra ventricular tachycardia (“SVT”). As

with the IFRP, Mr. Bradshaw became dissatisfied with his medical care at ADX.

      Mr. Bradshaw filed this civil rights action under Bivens, naming several

BOP employees as defendants. A few months later, he filed an amended

complaint, adding claims and defendants. His amended complaint also added two

other ADX inmates, Timothy Tuttamore and Jamie McMahon, as plaintiffs. 1

      The district court concluded sua sponte that the amended complaint should

be dismissed and directed plaintiffs to file separate lawsuits asserting their

individual medical claims. Mr. Bradshaw appealed to this court, and he also filed

a separate action asserting his medical claims, as directed by the district court.



1
      Neither Mr. Tuttamore nor Mr. McMahon is a party to this appeal at this
point. Mr. McMahon was dismissed from a prior appeal for failure to prosecute.
Mr. Tuttamore was dismissed from this appeal for failing to file a brief.

                                         -4-
See Bradshaw v. Lappin, No. 08-cv-02542-PAB-KLM, 2010 WL 908925

(D. Colo. Mar. 11, 2010). We reversed the district court’s decision and remanded

the case for further consideration. Bradshaw v. Lappin, 320 F. App’x 846, 849

(10th Cir. 2009) (No. 08-1160). The district court consolidated Mr. Bradshaw’s

second action with this case.

      On remand, the magistrate judge granted Mr. Bradshaw’s motion for leave

to file an amended complaint. Later, however, the district court adopted the

magistrate judge’s further recommendation to deny Mr. Bradshaw’s motion for

leave to file a proposed supplemental amended complaint.

      Mr. Bradshaw’s claims can be divided into two main categories. First, he

asserted that defendants Lappin, Wiley, Leyba, Nafziger, Osagie, and Amirkhan

were deliberately indifferent to his serious medical needs related to either his

heart condition and/or his chronic hepatitis, in violation of the Eighth

Amendment. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Second,

he asserted that defendants Lappin, Collins, Sudlow, Knox, Madison, Foster, and

Finlan violated his civil rights under the Fifth and Eighth Amendments by

requiring him to make restitution payments pursuant to the IFRP. Mr. Bradshaw

challenged both the actual deduction of funds from his account when he

voluntarily participated in the IFRP, as well as the expected withdrawal of the

privilege of participating in the Step-Down Program if he refused to voluntarily

make payments toward his restitution obligation.

                                         -5-
      The district court ultimately disposed of Mr. Bradshaw’s claims in two

lengthy orders filed on September 7, 2010, and March 10, 2011. The court

dismissed defendant Lappin, the Director of the Federal Bureau of Prisons,

because Mr. Bradshaw failed to establish that Director Lappin had minimum

contacts with Colorado, and the court therefore lacked personal jurisdiction over

him. The court dismissed Warden Wiley because Mr. Bradshaw failed to allege

his personal participation in any alleged constitutional deprivation.

      The district court granted summary judgment to defendants Collins,

Sudlow, Knox, Madison, Foster, and Finlan on Mr. Bradshaw’s IFRP claims. The

court reasoned that Mr. Bradshaw voluntarily agreed to participate in the IFRP for

awhile, so the deduction of funds did not violate his rights. The court further

determined that for the time during which Mr. Bradshaw was on “refuse” status,

he failed to show that the law was clearly established that withholding privileges

for his non-participation violated his constitutional rights, and so defendants were

entitled to qualified immunity. The court denied Mr. Bradshaw’s motion for

reconsideration of that decision.

      The district court granted summary judgment to Dr. Nafziger on

Mr. Bradshaw’s claims for deliberate indifference related to both his heart

condition and his hepatitis. The court also granted summary judgment to

Physician’s Assistant (“P.A.”) Osagie and Dr. Amirkhan on Mr. Bradshaw’s

claims for deliberate indifference related to his hepatitis. The court dismissed

                                         -6-
without prejudice Dr. Leyba, who was also named in Mr. Bradshaw’s heart

condition claim, based on Mr. Bradshaw’s failure to provide a current address to

the United States marshals in order for them to effect service.

      The district court denied Mr. Bradshaw’s motion for leave to file

documents relating to Dr. Allred, indicating that Dr. Allred was not a party to this

suit because he was not named in either the amended complaint or the proposed

supplemental amended complaint (which was not filed). The court also adopted

the magistrate judge’s recommendation to deny Mr. Bradshaw’s motion for leave

to file the supplemental amended complaint on the basis that it reasserted claims

that had been dismissed, which the district court construed to mean that it would

be futile to amend. Mr. Bradshaw appeals.


                                 II. Issues on Appeal

      Mr. Bradshaw argues, generally, that the district court impermissibly

viewed the evidence in the light most favorable to defendants and resolved

material disputes of fact in their favor. He argues, specifically, that the court

erred: (1) in granting summary judgment to Dr. Nafziger on his claim for

deliberate indifference to serious medical need based on his alleged symptoms of

a heart attack or heart disease; (2) in granting summary judgment to Dr. Nafziger,

P.A. Osagie, and Dr. Amirkhan on his claim for deliberate indifference to serious




                                          -7-
medical need based on his chronic hepatitis 2; (3) in granting summary judgment

to defendants Collins, Sudlow, Knox, Madison, Foster, and Finlan on his IFRP

claims for deprivation of funds to pay his restitution obligation without due

process; (4) in granting summary judgment to defendants Collins, Sudlow, Knox,

Madison, Foster, and Finlan on his IFRP claims alleging that he was punished

without due process for refusing to pay his restitution obligation; (5) in denying

his motion for leave to file a supplemental amended complaint; (6) in denying his

motion for leave to file a supplemental amended complaint at least with regard to

Dr. Allred, who was added as a party defendant; and (7) in dismissing Dr. Leyba

from the suit without prejudice for failure to effect timely service of process,

when the district court denied Mr. Bradshaw’s requests for help to find out

Dr. Leyba’s current address.


                               III. Standards of Review

      “This court reviews de novo a district court’s entry of summary judgment,

viewing the facts in the light most favorable to the nonmoving party.” Rezaq,

2012 WL 1372151, at *7. “Summary judgment 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.’” Carter v. Pathfinder Energy Servs.,


2
      Mr. Bradshaw initially named Director Lappin and Warden Wiley in his
deliberate indifference claims, but he did not mention them in his briefs on
appeal.

                                         -8-
Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “A

genuine dispute as to a material fact exists when the evidence, construed in the

light most favorable to the non-moving party, is such that a reasonable jury could

return a verdict for the non-moving party.” Id. (internal quotation marks

omitted). “Additionally, [t]he identification of the liberty interests that are

protected by the Due Process Clause is a question of federal constitutional law

that we review de novo.” Rezaq, 2012 WL 1372151, at *7 (alteration in original)

(internal quotation marks omitted).

      For the claims on which summary judgment was granted based on qualified

immunity, however, “the summary judgment standards are subject to a somewhat

different analysis from other summary judgment rulings.” Toevs v. Reid,

___ F.3d ___, No. 10-1535, 2012 WL 1085802, at *3 (10th Cir. Apr. 2, 2012)

(internal quotation marks omitted). “The doctrine of qualified immunity shields

government officials performing discretionary functions from liability for

damages “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Id.

(internal quotation marks omitted). “Thus, to avoid judgment for the defendant

based on qualified immunity, the plaintiff must show that the defendant’s actions

violated a specific statutory or constitutional right, and that the constitutional or

statutory rights the defendant allegedly violated were clearly established at the

time of the conduct at issue.” Id. (internal quotation marks omitted). “We have

                                          -9-
discretion to address the two qualified-immunity prongs in whatever order is

appropriate under the circumstances.” Id.


                                   IV. Discussion

                  a. Mr. Bradshaw’s Deliberate Indifference Claims

      Mr. Bradshaw alleged that Dr. Nafziger was deliberately indifferent to his

serious medical needs related to his heart condition. Mr. Bradshaw also alleged

that Dr. Nafziger, P.A. Osagie, and Dr. Amirkhan were deliberately indifferent to

his serious medical needs related to his chronic hepatitis.

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

needs is a violation of the Eighth Amendment’s prohibition against cruel and

unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing

Estelle, 429 U.S. at 104). “The test for constitutional liability of prison officials

involves both an objective and a subjective component.” Id. (internal quotation

marks omitted).

      “The prisoner must first produce objective evidence that the deprivation at

issue was in fact ‘sufficiently serious.’” Id. (quoting Farmer v. Brennan,

511 U.S. 825, 834 (1994)). “Moreover, a delay in medical care only constitutes

an Eighth Amendment violation where the plaintiff can show the delay resulted in

substantial harm.” Id. (internal quotation marks omitted). He may show




                                         -10-
substantial harm by providing competent evidence that the delay “caused either

unnecessary pain or a worsening of [the] condition.” Id. at 755.

      The prisoner must also “present evidence of the prison official’s culpable

state of mind.” Id. at 751. “The subjective component is satisfied if the official

‘knows of and disregards an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and [he or she] must also draw the

inference.’” Id. (quoting Farmer, 511 U.S. at 837). “A prison medical

professional who serves solely . . . as a gatekeeper for other medical personnel

capable of treating the condition may be held liable under the deliberate

indifference standard if [he or she] delays or refuses to fulfill that gatekeeper

role.” Id. (first alteration in original) (internal quotation marks omitted).

      In its March 10, 2011 order, the district court analyzed at length

Mr. Bradshaw’s claim that defendants were deliberately indifferent to his chronic

hepatitis and heart condition, concluding that defendants were entitled to

summary judgment on these claims. We have carefully considered

Mr. Bradshaw’s arguments on appeal, and we affirm the district court’s decision

on his deliberate indifference claims in all respects, with the following additional

explanation.

      First, we reject Mr. Bradshaw’s contention on appeal that the district court

held that he made his required showing on both prongs of the deliberate

                                         -11-
indifference test on his heart condition claim. See Aplt. Opening Br. at 7. The

district court stated that he failed to show that he suffered substantial harm as a

result of Dr. Nafziger’s failure to order a cardiac consult. As a result, he failed to

satisfy the objective prong of the test. It is irrelevant that the district court

referred to substantial harm as a “third element of a deliberate indifference

claim,” R., Vol. 1, at 1834-35, instead of considering it, as we have, as part of the

objective prong, see Mata, 427 F.3d at 751; Oxendine v. Kaplan, 241 F.3d 1272,

1276-77 (10th Cir. 2001). The point is that the district court correctly held that

Mr. Bradshaw was obligated to offer proof that he suffered substantial harm from

the lack of a cardiac consult to withstand Dr. Nafziger’s motion for summary

judgment, and he failed to do so. He did not establish that he experienced

unnecessary pain, that his heart condition worsened, or that he suffered a heart

attack due to Dr. Nafziger’s failure to order a cardiologist’s evaluation.

See Mata, 427 F.3d at 751-55.

      We also reject Mr. Bradshaw’s argument that the district court should have

appointed an expert under Fed. R. Evid. 706(a) to interpret the BOP’s Clinical

Practice Guidelines for the Prevention and Treatment of Viral Hepatitis and

Cirrhosis, presumably at government expense. See Aplt. Opening Br. at 31-32. It

is held generally that there is no provision in the law for litigation expenses such

as expert witness fees to be paid for an indigent litigant in a civil suit for

damages. See Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir. 1993) (per curiam)

                                          -12-
(collecting cases); see also Fed. R. Evid. 706(c)(2) (providing that parties will

pay proportional share of expert’s fees in civil suit, as directed by the court).

But see U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1056-58 (8th Cir. 1984)

(holding that 28 U.S.C. § 1915 “does not authorize government payment of

witness fees and expenses for indigent litigants,” but the court has discretion “to

order one party of both to advance fees and expenses for experts that it appoints”

under the Federal Rules of Evidence now appearing as Rules 614(a) and 706(c)).


                          b. Mr. Bradshaw’s IFRP Claims

      In its September 7, 2010, order granting partial summary judgment to

defendants, the district court analyzed Mr. Bradshaw’s claims asserting that

defendants Collins, Sudlow, Knox, Madison, Foster, and Finlan were liable to him

for damages under Bivens based on his claims related to the IFRP. In its

March 10, 2011, order granting defendants’ second motion for summary

judgment, the court evaluated Mr. Bradshaw’s motion for reconsideration of its

decision on these claims. The alleged violations arose both from Mr. Bradshaw’s

voluntary participation in the IFRP, which resulted in the deduction of $25 per

quarter from his trust account to pay his restitution obligation, and, alternatively,

from his placement in “refuse” status during the time periods when he declined to

voluntarily participate in the IFRP, which allegedly resulted in the withdrawal of

the privilege of participating in ADX’s Step-Down Program. We have carefully


                                         -13-
considered Mr. Bradshaw’s arguments on appeal, and we affirm the district

court’s grant of summary judgment to defendants on his IFRP claims in all

respects, with the following additional explanation.

      “The Due Process Clause of the Fifth Amendment provides that ‘[n]o

person shall . . . be deprived of life, liberty, or property, without due process of

law.’” United States v. Robinson, 583 F.3d 1265, 1270 (10th Cir. 2009)

(alteration in original) (quoting U.S. Const. amend. V). Mr. Bradshaw argues that

a liberty interest arose from the threat of his indefinite confinement at ADX

because he has refused to participate in the IFRP. See Aplt. Opening

Br. at 49-55. He asserts that the conditions at ADX are comparable to the

conditions presented in Wilkinson v. Austin, 545 U.S. 209 (2005), where the

Supreme Court held that inmates had a liberty interest in avoiding confinement at

Ohio’s supermax facility, id. at 224. Aplt. Opening Br. at 50, 52-55.

      The district court concluded that Mr. Bradshaw failed to demonstrate that

clearly established law created a constitutionally protected liberty interest under

the Fifth Amendment, and, as a result, defendants were entitled to qualified

immunity on his IFRP claims. When the court evaluated Mr. Bradshaw’s motion

for reconsideration, its conclusion was the same. Mr. Bradshaw’s argument on

appeal does not challenge the actual basis of the district court’s decision. In

addition, we recently examined the conditions of confinement at ADX in light of

the Court’s opinion in Wilkinson. See Rezaq, 2012 WL 1372151, at *7-*13. We

                                          -14-
concluded that “[t]he conditions at ADX, like those at the Ohio supermax prison

in Wilkinson, do not, in and of themselves, give rise to a liberty interest because

they are substantially similar to conditions experienced in any solitary

confinement setting.” Id. at *12.


           c. Denial of Leave to File Supplemental Amended Complaint

      Mr. Bradshaw filed a motion for leave to file a supplemental amended

complaint. Defendants argued that leave should be denied because his claims

were subject to dismissal, and amendment was therefore futile. The motion was

first addressed by the magistrate judge, who recommended that Mr. Bradshaw be

denied leave to amend because “[t]he proposed amended complaint reasserts the

claims that have been dismissed [in the district court’s September 7, 2010, order

granting partial summary judgment to defendants].” R., Vol. 1, at 1725.

      Mr. Bradshaw filed objections to the magistrate judge’s recommendation,

arguing that the district court had erred in its earlier order by dismissing

Dr. Leyba as a party defendant and by dismissing his IFRP claims. The district

court construed the magistrate judge’s recommendation to be based on futility of

amendment, reviewed the recommendation de novo, and adopted it with

additional explanation supporting the denial as to certain claims.

      Mr. Bradshaw argues that the district court erred. We disagree. Under the

circumstances of this case, we review de novo the district court’s decision


                                         -15-
denying Mr. Bradshaw’s motion for leave to file his proposed supplemental

amended complaint. “Although we generally review for abuse of discretion a

district court’s denial of leave to amend a complaint, when this denial is based on

a determination that amendment would be futile, our review for abuse of

discretion includes de novo review of the legal basis for the finding of futility.”

Cohen v. Longshore, 621 F.3d 1311, 1314 (10th Cir. 2010) (internal quotation

marks omitted). “We thus consider de novo whether 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.” Id. at 1314-15 (internal

quotation marks omitted). We conclude that Mr. Bradshaw’s proposed

supplemental amended complaint could not have survived dismissal.

      “A court properly may deny a motion for leave to amend as futile when the

proposed amended complaint would be subject to dismissal for any reason,

including that the amendment would not survive a motion for summary

judgment.” Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 562

(10th Cir. 1997). As explained above, it would have been futile to allow

amendment for Mr. Bradshaw to reassert his IFRP claims. And as explained

below, Mr. Bradshaw did not preserve for appeal his argument that Dr. Allred was

made a party defendant in his supplemental amended complaint, and the district

court properly dismissed Dr. Leyba from the suit. Accordingly, the district court




                                         -16-
did not err by denying Mr. Bradshaw leave to file his proposed supplemental

amended complaint.


                          d. Dr. Allred as Party Defendant

      Dr. Allred succeeded Dr. Nafziger as the clinical director at the FCC in

December 2008, after this suit was filed. Mr. Bradshaw did not name Dr. Allred

as a defendant in his first three complaints. He asserted a cause of action against

Dr. Allred for the first time in his proposed supplemental amended complaint,

which he was not permitted to file. R., Vol. 1, at 1233-35. He did not name

Dr. Allred in the caption of that complaint or in his list of parties, however. Id.

at 1194-97. Nonetheless, he believes that he adequately named Dr. Allred as a

party defendant in the amended complaint and proposed supplemental amended

complaint because he added “any and all successor’s” [sic] at the end of the

caption of each of them. See Aplt. Opening Br. at 41; R., Vol. 1, at 793, 1194.

      Mr. Bradshaw’s argument is without merit for two reasons. First, there can

be no successor liability for a deliberate indifference claim. “[V]icarious liability

is inapplicable to Bivens . . . .” Dodds v. Richardson, 614 F.3d 1185, 1198

(10th Cir. 2010) (discussing supervisory liability for alleged constitutional

violations) (internal quotation marks omitted), cert. denied, 131 S. Ct. 2150

(2011). Rather, the plaintiff is required to plead and prove that each defendant

“by virtue of his own conduct and state of mind” violated the Constitution. Id.


                                         -17-
Second, Mr. Bradshaw did not preserve for appeal the argument that he added

Dr. Allred as a party by asserting a new cause of action against him in the

proposed supplemental amended complaint.

      “[W]e have adopted a firm waiver rule when a party fails to object to the

findings and recommendations of the magistrate.” Moore v. United States,

950 F.2d 656, 659 (10th Cir. 1991). “[O]nly an objection that is sufficiently

specific to focus the district court’s attention on the factual and legal issues that

are truly in dispute will advance the policies behind the Magistrate’s Act that led

us to adopt a waiver rule in the first instance.” United States v. 2121 E. 30th St.,

73 F.3d 1057, 1060 (10th Cir. 1996). Although Mr. Bradshaw filed objections to

the magistrate judge’s recommendation to deny his motion for leave to file his

proposed supplemental amended complaint, he did not alert the district court that

he was asserting a new cause of action against a new defendant. As a result, the

issue as to whether Dr. Allred was added as a party defendant by being named in

a cause of action within the proposed supplemental amended complaint is waived

on appeal. See id.


           e. Dismissal of Dr. Leyba for Failure to Effect Timely Service

      Finally, Mr. Bradshaw argues that the district court erred in dismissing

Dr. Leyba as a party defendant on the basis that Mr. Bradshaw failed to effect

timely service of process, even though nearly three years had passed since he


                                          -18-
filed suit. We review for abuse of discretion the district court’s decision to

dismiss Dr. Leyba due to Mr. Bradshaw’s failure to effect service.

See Constien v. United States, 628 F.3d 1207, 1213 (10th Cir. 2010), cert. denied,

131 S. Ct. 2884 (2011). Under the particular circumstances of this case, we

affirm.

      Mr. Bradshaw named Dr. Leyba as a defendant in his original complaint.

He asserted that Dr. Leyba failed to fulfill his gatekeeper role with respect to

Mr. Bradshaw’s heart condition by improperly withdrawing a request for a

cardiac consult in 2006 due to alleged security concerns. Mr. Bradshaw

reasserted his claim against Dr. Leyba in his amended complaint. Because

Mr. Bradshaw was proceeding in forma pauperis, the district court was required to

order that service be made by a United States marshal.

See Fed. R. Civ. P. 4(c)(3).

      Because the district court dismissed the amended complaint sua sponte as

frivolous, however, Dr. Leyba was never served. We reversed that dismissal after

Dr. Leyba had left his employment at the FCC. The marshal attempted to serve

Dr. Leyba with the amended complaint after our remand, but was unsuccessful.

Mr. Bradshaw sought the district court’s assistance in compelling defendants to

locate Dr. Leyba’s new address, but the district court declined to do more than

direct defendants to provide Dr. Leyba’s last known address. The marshal

attempted service at that last known address, but the house was vacant.

                                         -19-
      We need not decide whether the district court’s actions were proper

because it is clear that Mr. Bradshaw’s claim against Dr. Leyba would have failed

on the merits. The court correctly concluded that Mr. Bradshaw failed to produce

evidence showing that he suffered substantial harm as a result of the denial of a

cardiac consultation in his claim against Dr. Nafziger. Mr. Bradshaw thus failed

to satisfy the objective prong of his required showing for deliberate indifference

related to his heart condition. See Mata, 427 F.3d at 751; Oxendine, 241 F.3d

at 1276-77. We “may rule that a party loses on the merits without first

establishing jurisdiction [when] the merits have already been decided in the

[district] court’s resolution of a claim over which it did have jurisdiction. In that

circumstance, resolution of the merits is ‘foreordained . . . .’” Starkey ex rel. A.B.

v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1260 (10th Cir. 2009) (quoting

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 98 (1998)).

      Because Mr. Bradshaw’s deliberate indifference claim against Dr. Leyba

would necessarily fail based on the district court’s analysis of his claim against

Dr. Nafziger, we affirm the district court’s dismissal of Dr. Leyba, as well as the

court’s denial of Mr. Bradshaw’s motion for leave to file his proposed

supplemental amended complaint.




                                         -20-
    All outstanding motions are denied. The judgment of the district court is

AFFIRMED.


                                                Entered for the Court


                                                Wade Brorby
                                                Senior Circuit Judge




                                     -21-
