                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                       September 30, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
KEVIN L. MCKINNEY,

     Plaintiff - Appellant,

v.                                                         No. 16-1160
                                                 (D.C. No. 1:15-CV-02269-MJW)
COLORADO DEPARTMENT OF                                      (D. Colo.)
CORRECTIONS; T. LAURENCE,

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Kevin McKinney, a state prisoner appearing pro se, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 suit. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                          I

      McKinney is a prisoner at the Arkansas Valley Correctional Facility

(“AVCF”). On May 28, 2015, he requested medical attention for a hernia. He


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
followed up with additional requests on June 8 and 12. McKinney was seen by

physician assistant Ted Laurence on June 23 and again on July 2. Laurence

explained that per Colorado Department of Corrections (“CDOC”) policy, McKinney

was not a surgical candidate because the hernia was reducible. He provided

McKinney with pain medication and a hernia belt. Laurence further advised

McKinney that he could request additional treatment if his condition worsened.

       After exhausting prison grievance procedures, McKinney filed suit. He alleges

that Laurence, nurse Lisa Hanks, and AVCF clinic supervisor John Klein violated his

Eighth Amendment rights by refusing his request for surgery. He also names CDOC

as a defendant. The district court dismissed McKinney’s claims against Klein and

Hanks. CDOC and Laurence then moved to dismiss McKinney’s remaining claims.

The district court granted their motion and denied McKinney’s motion to alter or

amend judgment. McKinney timely appealed.

                                            II

       We review de novo a district court’s dismissal for failure to state a claim.

Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). Because McKinney is

proceeding pro se, we construe his filings liberally. Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991). But we may not act as his advocate. Id.



                                             2
      McKinney contends that CDOC’s policy of refusing surgery to inmates with

reducible hernias violates the Eighth Amendment because it inflicts unnecessary pain

and suffering and is likely to lead to serious complications. To prevail on an Eighth

Amendment claim, McKinney must show that prison officials “know[] of and

disregard[] 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 must also draw the inference.” Self v. Crum, 439 F.3d

1227, 1231 (10th Cir. 2006). “A negligent failure to provide adequate medical care,

even one constituting medical malpractice, does not give rise to a constitutional

violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999).

Accordingly, “a prisoner who merely disagrees with a diagnosis or a prescribed

course of treatment does not state a constitutional violation.” Id. Having reviewed

the record and all appellate filings, we agree with the district court that McKinney’s

claim rests on mere disagreement with a prescribed course of treatment and thus fails

to state a claim upon which relief may be granted.1

                                          III

      AFFIRMED. McKinney’s motion to proceed in forma pauperis is

GRANTED, but we remind him of his obligation to continue making payments until


      1
        On appeal, McKinney does not challenge the district court’s dismissal of his
claims against Klein and Hanks, nor does he challenge the district court’s Eleventh
Amendment ruling regarding his damages claim against Laurence in his official
capacity. Accordingly, these arguments are waived. See Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the
opening brief are waived . . . .”).
                                           3
the filing fee is paid in full. See 28 U.S.C. § 1915(b).




                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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