                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                         NOV 2 1999
                                  TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk
 JAMES RONALD TIDWELL,

           Plaintiff-Appellant,
 v.

 BRUCE BURNHAM, Doctor at the
 Iron County Correctional Facility,
 Individually,

           Defendants-Appellee,
                                                       No. 99-4109
 and                                             (D.C. No. 98-CV-80-W)
                                                        (D. Utah)
 SINGLETON and BETH, Nurses at
 the Iron County Correctional Facility,
 individually; ALAN JULLIAN,
 caseworker at the Iron County
 Correctional Facility, individually;
 JIMMY STEWART, Administrator at
 the Iron County Correctional Facility,
 individually,

           Defendants.


                              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Order and Judgment is not binding precedent, except under the doctrines of law of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. 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.
Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Plaintiff-Appellant Mr. James Tidwell, a state prisoner appearing pro se,

appeals from the district court’s entry of summary judgment in favor of

Defendant-Appellee Dr. Bruce Burnham in this civil suit filed pursuant to 42

U.S.C. § 1983. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                 BACKGROUND

      Mr. Tidwell filed an action seeking damages pursuant to § 1983 in the

United States District Court for the District Court of Utah against defendants Dr.

Burnham, Nurse Singleton, Nurse Beth, Alan Jullian, Jimmy Stewart, and John

Does 1-10. (See Complaint (Doc. #1) at 1.) The complaint describes Burnham,

Singleton, Beth, Jullian, and Stewart as employees at the Iron County

Correctional Facility and John Does 1-10 as employees of the Utah Department of

Corrections. (See Complaint at 1-2.)

      Mr. Tidwell alleged that the following conduct on the part of the

defendants amounted to cruel and unusual punishment in violation of the Eighth

Amendment. Mr. Tidwell contended that he has not received adequate medical

treatment at the Iron County Correctional Facility for: (1) two lumps on his

testicles which he believes are cancerous; (2) pain in his lungs; (3) bad teeth; and

(4) “poison in his system.” (See Complaint at 4-5.) Mr. Tidwell also contended

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that he was not treated for pneumonia or for bleeding from his nose and ears and

that he was charged for a biopsy of a lump on his testicle that was never

performed. (See Complaint at 5,7.) Mr. Tidwell further claimed that he was

improperly handcuffed behind his back by transportation officer John Doe for

approximately three and a half to four hours while he was being transported to the

University of Utah Medical Center (“UMC”) in Salt Lake City so that he could

undergo an examination of the lump in his testicle. (See Complaint at 4-5.) Mr.

Tidwell contended that being handcuffed in such a manner was unnecessary and

caused him extreme discomfort and pain because he suffered from polio as a child

and presently has arthritis. (See id.) In addition, Mr. Tidwell claimed that while

he was temporarily housed at the Draper Facility he was forced to stay in a cell

that contained blood and human feces and that he was denied his medication

while residing there. (See Complaint at 5-6.) Finally, Mr. Tidwell alleged that he

received inadequate medical care while residing at the Gunnison Facility where he

was undergoing a psychological evaluation. (See Complaint at 6-7.)

      The district court dismissed Mr. Tidwell’s claims relating to his treatment

at the Draper and Gunnison Facilities on the ground that Mr. Tidwell had failed to

exhaust his administrative remedies in connection with these claims. (See Doc. #

24.) The district court also dismissed defendants Singleton, Beth, Jullian, and

Stewart pursuant to 42 U.S.C. § 1915(e)(2)(B). (See Doc. # 42.) The district


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court granted summary judgment for Dr. Burnham on the remaining claims. (See

Doc. # 53.)

      On appeal, Mr. Tidwell contends that the district court improperly granted

summary judgment for Dr. Burnham and improperly denied Mr. Tidwell’s Motion

for Appointment of Counsel. 1 (See Notice of Appeal (Doc. # 55).) Mr. Tidwell

does not appear to contest the district court’s order dismissing his claims relating

to his treatment at the Draper and Gunnison Facilities or its order dismissing the

four named defendants other than Dr. Burnham. (See id.)



      1
        Mr. Tidwell also argues on appeal that his constitutional rights were
violated when: (1) Dr. Burnham required Mr. Tidwell to undergo a psychological
examination at Gunnison Prison because Dr. Burnham wanted Mr. Tidwell to be
institutionalized; (2) Dr. Burnham allegedly refused to prescribe him necessary
medication in July 1998 in retaliation for Mr. Tidwell’s statement that he would
be seen by an “outside” physician; (3) Dr. Burnham and his staff neglected to give
Mr. Tidwell medical treatment for three weeks in his cell and “left him to die;”
and (4) he was improperly taken out of therapy which resulted in an increase in
his prison sentence. (See Aplt. Br. at 2.) The record indicates that although Mr.
Tidwell discussed some of these allegation in his motions to the district court, the
district court did not address these claims. Although the pleadings of pro se
plaintiffs must be construed liberally, “conclusory allegations without supporting
factual averments are insufficient to state a claim on which relief can be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Issues 1, 2, and 4, above,
do not state a claim under the Eighth Amendment of “deliberate indifference to
serious medical needs.” Claims 3 and 4 are conclusory and thus do not state a
claim. In addition, none of these claims appear to have been alleged expressly in
either the Complaint or the tendered Motion to Amend the Complaint.
Accordingly, we conclude that Mr. Tidwell is not entitled to appellate relief on
any of these claims.



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                                   DISCUSSION

      We review the grant of summary judgment de novo. See Jenkins v. Wood,

81 F.3d 988, 990 (10th Cir.1996). We apply the same standard as the district court

to determine whether there is a genuine issue as to any material fact and whether

defendant is entitled to judgment as a matter of law. See id. We view the

evidence and the inferences that can be drawn therefrom in the light most

favorable to plaintiff. See id.

      In Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed.2d 251 (1976),

the Supreme Court held that an inmate's complaint of inadequate medical care

states a cognizable Eighth Amendment claim only if the inmate alleges “acts or

omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs.” Estelle, 429 U.S. at 106. The Court clarified the meaning of

“deliberate indifference” in Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970,

128 L. Ed.2d 811 (1994), holding that the term requires that a prison official

subjectively “knows that inmates face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to abate it.” Farmer,

511 U.S. at 847.

      We find that Mr. Tidwell has not shown that there is a genuine issue of

material fact as to whether Dr. Burnham acted with deliberate indifference to Mr.

Tidwell’s medical needs. The record shows that Dr. Burnham examined the


                                        -5-
lumps on Mr. Tidwell’s testicles and determined that the lumps were

spermatoceles, a type of non-cancerous cyst that does not require a biopsy to be

diagnosed. Dr. Burnham even arranged to have Mr. Tidwell examined by a

urologist at UMC, who agreed with Dr. Burnham’s diagnosis. (See Magistrate

Report (Doc. # 48) at 3-4.) The record also shows that Dr. Burnham approved

Mr. Tidwell’s request to be seen by an “outside” doctor for the complaints related

to his lungs. X-rays of Mr. Tidwell’s chest taken at the Valley View Medical

Center in Cedar City, Utah indicated no abnormalities. (See Magistrate Report at

5.) Mr. Tidwell has failed to present evidence of deliberate indifference on the

part of Dr. Burnham with respect to his other claims as well. Dr. Burnham

appears to have had no control over the manner in which Mr. Tidwell was

transported to UMC. Similarly, Mr. Tidwell has not shown that Dr. Burnham

knew of and disregarded the other medical conditions of which Mr. Tidwell

complains. Finally, Mr. Tidwell acknowledges in his Complaint that Dr. Burnham

had the charge for the biopsy removed from Mr. Tidwell’s account. (See

Complaint at 6.)

      Mr. Tidwell suggests in his brief on appeal that the district court granted

the motion for summary judgment on the ground that he failed to answer the

motion. We find that this contention is without merit. In considering whether to

grant the Motion for Summary Judgment, the district court had before it Mr.


                                        -6-
Tidwell’s Memorandum in Opposition to the Motion for Summary Judgment

(Doc. # 49) and his Objections to the Report and Recommendations of the

Magistrate Judge (Doc. # 50).

      “We review the denial of appointment of counsel in a civil case for an

abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.1995).

The district court may appoint counsel for an indigent plaintiff if, under the

totality of the circumstances, the denial of counsel would result in a

fundamentally unfair proceeding, see McCarthy v. Weinberg, 753 F.2d 836,

839-40 (10th Cir.1985), considering the merits of the claims, the nature of the

factual issues, the litigant's ability to present the claims, and the complexity of the

legal issues, see Rucks, 57 F.3d at 979. We understand that Mr. Tidwell suffers

from physical disabilities and believes he cannot adequately present his case

without the assistance of an attorney. These facts alone, however, do not lead us

to believe that the district court abused its discretion in denying Mr. Tidwell's

motion for appointment of counsel. Mr. Tidwell has not made any showing that

Burnham acted with deliberate indifference and total disregard for Mr. Tidwell’s

medical needs in violation of the Eighth Amendment. We therefore find that the

proceeding was not fundamentally unfair absent appointment of counsel. 2




      We deny Mr. Tidwell’s Second Motion for Appointment of Counsel and
      2

Motion for Leave to File Attempted Manslaughter Charges filed October 19,

                                          -7-
        The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




        2
            (...continued)
1999.

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