                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 1, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 CAIN DIXON,

          Plaintiff - Appellant,
                                                        No. 07-3274
 v.                                             (D.C. No. 06-CV-03129-SAC)
                                                          (D. Kan.)
 KANSAS DEPARTMENT OF
 CORRECTIONS; ROGER
 WERHOLTZ, Secretary, Kansas
 Department of Corrections; DAVID R.
 MCKUNE, Warden, Lansing
 Correctional Facility; ELIZABETH
 RICE, Classification Administrator,
 Lansing Correctional Facility, in their
 individual and official capacities,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges. **


      Cain Dixon, Jr., an inmate of the Lansing Correctional Facility (LCF)


      *
        This order and judgment is not binding precedent, except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
appeals the district court’s dismissal of his pro se civil rights complaint, 42

U.S.C. § 1983, against various corrections officials. Dixon v. Kan. Dep’t of

Corr., 2007 WL 2461693 (D. Kan. August 28, 2007). He alleges that his

constitutional rights were violated when, contrary to a work and housing

classification issued in 1995 and acknowledged by the Warden in 1996, he was

forced to move to a cell requiring him to climb stairs. Our jurisdiction arises

under 28 U.S.C. § 1291 and we affirm.

      Pursuant to its screening function, the district court ordered Mr. Dixon to

show cause why his complaint should be dismissed as stating no claim for relief.

See 28 U.S.C. § 1915A(b)(1). After Mr. Dixon responded concerning only his

Eighth Amendment claim, the district court dismissed the complaint. The district

court held that Mr. Dixon could not show an Eighth Amendment violation of

deliberate indifference to serious medical needs because no facts suggested that

prison officials knew of a substantial risk of harm and disregarded it. Farmer v.

Brennan, 511 U.S. 825, 837 (1994). The district court relied upon an attachment

to the complaint indicating that Mr. Dixon had been medically evaluated by a

clinic prior to his move and that, after the clinic suggested a stair restriction, Mr.

Dixon refused it and agreed to assume the consequences.

      Giving Mr. Dixon’s complaint its mandated liberal construction and taking

as true all well-pleaded facts, we have conducted our de novo review. See

McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). The record supports the

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district court’s conclusion.

      AFFIRMED. We DENY Mr. Dixon’s motion to proceed on appeal in forma

pauperis and order immediate payment of any unpaid balance due.




                                    Entered for the Court


                                    Paul J. Kelly, Jr.
                                    Circuit Judge




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