                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            April 7, 2006
                               TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                          Clerk of Court

 ALFRED R. CARTER,
             Plaintiff-Appellant,                       No. 05-6239
 v.                                               (D.C. No. 04-CV-883-T)
 DR. JEFF TROUTT; DENNIS                                (W.D. Okla.)
 COTNER, Medical Service
 Administrator; KATRYNA FRECH,
 Health Services Administrator; and
 ERIC FRANKLIN, Warden,
             Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges.




      After examining the briefs 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). The case is therefore

ordered submitted without oral argument.

      Appellant, a state prisoner appearing pro se, has brought this action


      *
       This order and judgment is not binding precedent, except under the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 conditions of 10th Cir. R. 36.3.
pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional

rights through their deliberate indifference to his medical needs. Originally,

Appellant’s complaint included a claim regarding his requested referral to a

specialist. Because this claim was not exhausted, Appellant requested that his

unexhausted claim be dismissed. The district court granted his request and

proceeded with respect to Appellant’s remaining claim–that his Eighth

Amendment rights were violated when Defendant prison physician refused to

prescribe Lortab for pain control. Report and Recommendation, 1-2 (W.D. Okla.

June 23, 2005).

      The magistrate judge, in his Report and Recommendation, noted that “[t]he

Eighth Amendment requires jail officials to provide humane conditions of

confinement, including access to the basic necessities of medical care.” Id. at 3.

A deliberate indifference standard is used to determine whether there has been a

violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104

(1976). Specifically, the standard has two components:

      (1) an objective component in which the plaintiff’s pain or
      deprivation must be shown to be sufficiently serious, and (2) a
      subjective component in which it must be shown that the offending
      officials acted with a sufficiently culpable state of mind.

Report and Recommendation, 3 (citing Handy v. Price, 996 F.2d 1064, 1067 (10th

Cir. 1993); Miller v. Glantz, 948 F.2d 1562, 1569 (10th Cir. 1991)). The

objective component’s “sufficiently serious” requirement may be satisfied when

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“a condition is sufficiently serious where the condition is one diagnosed by a

physician as mandating treatment or that is so obvious even a lay person would

easily recognize the necessity for a doctor’s attention.” Id. (citing Ramos v.

Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). The subjective prong may be

established if “a defendant knew of a substantial risk of harm and failed to take

reasonable measures to abate it.” Id. (citing Hunt v. Uphoff, 199 F.3d 1220, 1224

(10th Cir. 1999)).

      Appellant contends that he was given Lortab for pain relief for a period of

one year while housed at Jess Dunn Correctional Center but that Defendant

physician Troutt discontinued the Lortab prescription, without examining

Appellant’s back, when Appellant was transferred to James Crabtree Correctional

Center. Id. at 4-5. Defendants, in a motion for summary judgment, offered

evidence that Appellant was seen by Dr. Troutt just prior to his transfer to another

facility, that Dr. Troutt prescribed several pain medications (not including Lortab)

which Appellant never filled, that Appellant missed his follow-up appointment for

treatment, that Appellant refused to be examined unless Lortab was prescribed,

and that Appellant was examined at the new facility and showed “full flexion and

extension of the neck with no tenderness.” Id. at 5-7.

      The magistrate judge stated that “[w]hile there can be no doubt that

[Appellant] has a serious health condition, the foregoing, undisputed facts


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demonstrate that the James Crabtree medical staff has consistently monitored

[Appellant] and his health situation and has provided him with ongoing care,

albeit not the care which [Appellant] desired.” Id. at 7. The magistrate judge

recommended that Defendants’ motion for summary judgment be granted, because

“the evidence of record fails to raise a genuine issue of material fact as to

whether Defendants acted with deliberate indifference to [Appellant’s] medical

condition.” Id. at 8. The district court adopted the magistrate judge’s Report and

Recommendation and granted Defendants’ motion for summary judgment on

July 19, 2005. Order, 2 (W.D. Okla.).

        We have carefully reviewed the briefs of the Appellant and the Appellees,

the magistrate judge’s recommendation, the district court’s disposition, and the

record on appeal. We have conducted a de novo review of the district court’s

grant of summary judgment to Appellees, and for substantially the same reasons

set forth by the magistrate judge in his recommendation of June 23, 2005, and the

district court in its Order of July 19, 2005, we AFFIRM the district court’s

dismissal of Appellant’s § 1983 complaint. We have granted Appellant’s motion

to proceed without prepayment of the filing fee, but we remind Appellant that he

is obligated to continue making partial payment until the entire filing fee has been

paid.

                                                Entered for the Court


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      Monroe G. McKay
      Circuit Judge




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