                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAY 16 2003
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    STEPHANIE RACHELLE
    HAMPTON,

             Plaintiff-Appellant,
                                                       No. 02-6168
    v.                                           (D.C. No. 00-CV-2061-C)
                                                       (W.D. Okla.)
    CATHY KEATING; LARRY FIELDS;
    DOMINION VENTURE
    CORPORATION OF AMERICA;
    DEBORAH GRAUMAN, Medical
    Director; CORRECTIONS
    CORPORATION OF AMERICA;
    CENTRAL OKLAHOMA
    CORRECTIONAL FACILITY;
    HOWARD RAY, Warden; BARBARA
    LANGTHORNE, Physician’s
    Assistant; VIVIAN VIERA,

             Defendants-Appellees.


                          ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, HARTZ , and O’BRIEN , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       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.

       Plaintiff, proceeding pro se, appeals the district court’s judgment in favor

of multiple defendants on her action brought under 42 U.S.C. § 1983. She

claimed that she received constitutionally inadequate medical treatment while a

state prisoner at the Central Oklahoma Correctional Facility (COCF), i.e., that the

medical staff displayed deliberate indifference to her need for treatment,

specifically recurrent ear infections which resulted in loss of hearing in one ear.

She further contended that despite repeated requests for treatment, the care that

was provided was inadequate.

       The magistrate judge to whom the case was initially assigned recused

himself after issuing a report and recommendation. The cause was reassigned to a

new magistrate judge who then issued a supplemental report and recommendation,

which the district court ultimately adopted. We affirm.

       The magistrate judge recommended dismissal of defendants Keating and

Corrections Corporation of America for failure to effect service of process under

Fed. R. Civ. P. 4(m). On appeal plaintiff recites that she has no objection to this

ruling, Aplt. Br. at 5, and we will not consider it further. As to the balance of the


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defendants, the district court accepted the magistrate judge’s recommendation that

summary judgment be granted.

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”    Simms v. Okla. ex

rel. Dep’t of Mental Health & Substance Abuse Servs.       , 165 F.3d 1321, 1326 (10th

Cir. 1999). Summary judgment is appropriately granted “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c).

       Defendants Grauman, Langthorne, and Viera filed a motion to

dismiss/summary judgment,     1
                                  attached to which was a comprehensive report that

reviewed in detail plaintiff’s medical record. Defendants Fields, COCF, and

Dominion Venture Corporation also moved for summary judgment on various

grounds.

       It is clear from the medical record that plaintiff sought and received

treatment for recurrent otis externa (inflamation of the external canal) from

shortly after her arrival at COCF through the date of the report. Plaintiff was

seen and treated many times, even though the records reflect that she repeatedly


1
       Defendant Ray moved separately for the same relief.

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missed appointments and occasionally left before being seen by medical

personnel. She also was noncompliant with regard to certain treatments and was

finally admitted to the infirmary to promote compliance with her treatment and

healing, in order to resolve her infection. At that point she improved

significantly. Plaintiff has continued to be seen and treated by medical personnel.

       Plaintiff filed several responses arguing that she had met the requirements

of Estelle v. Gamble , 429 U.S. 97 (1976), i.e., deliberate indifference to a serious

medical need. She recited as “uncontroverted” the facts that she has suffered

some hearing loss while at COCF and that certain defendants were responsible for

her medical care. She further suggested that a rational trier of fact could believe

that her medical records might have been altered or their authenticity questioned.

       The magistrate judge carefully considered plaintiff’s claims along with the

extensive medical records submitted by defendants, recognizing that there was no

factual dispute as to the number of times she received medical treatment but only

plaintiff’s complaints about the   type of treatment received. He determined that

plaintiff had failed to establish defendants disregarded a substantial risk of harm

to her “by failing to take reasonable measures to abate it.” R. Doc. 66 at 13.   See

Farmer v. Brennan , 511 U.S. 825, 847 (1995). He accordingly recommended

granting summary judgment to defendants.




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      Plaintiff filed an objection alleging that the magistrate judge had

improperly decided material issues of fact and construed the   Martinez report as

expert testimony without allowing her to controvert the records with meaningful

expert medical testimony of her own. Upon de novo review, the district court

adopted the magistrate judge’s report and recommendation and entered judgment

for defendants.

      On appeal plaintiff raises three arguments: (1) the district court

erroneously relied on medical records it knew were tainted; (2) the court abused

its discretion in denying plaintiff’s motion for appointment of counsel; and (3) the

court’s ruling constituted an “unreasonable application of the ‘deliberate

indifference’ standard.” Aplt. Br. at 9. She also asks this court to consider

applying a standard other than   Estelle v. Gamble , which we decline to do. Aplt.

Br. at 10.

      First, she argues that the district court erred in relying on her medical

records, which she claims are not “authentic.”    Id. at 12. The reason she contends

these records lack authenticity is that they disappeared for several days. She

acknowledges that she was accused of stealing her medical file, although she

claims that it was located in an inmate housing unit “though not in [p]laintiff’s

possession.” Id. at 13 n.1. She does not, however, dispute the fact that the prison

misconduct report states that she admitted taking the file because she needed it


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for her lawsuit. R. Doc. 50, ex. A. Nor, in fact, does she deny borrowing the file.

Most importantly, however, she does not specify how the brief disappearance of

her file compromised the accuracy of the number of times she was treated. This

issue is without merit.

      Next she contends that the district court abused its discretion in denying her

motion for appointment of counsel. We disagree. Even though plaintiff was

proceeding pro se, she more than adequately presented her arguments for

consideration by the district court. She has failed to establish abuse of discretion

in the denial of appointed counsel.

      Finally, she contends that the district court’s application of the deliberate-

indifference standard was “grossly unreasonable.” Aplt. Br. at 33. We disagree.

There is no question that plaintiff suffered a serious medical condition. But there

is also no question that the defendants provided numerous medical evaluations

and treatments in an effort to resolve her problems. Moreover, “   Estelle

establishes that deliberate indifference entails something more than mere

negligence.” Farmer , 511 U.S. at 835. Plaintiff’s factual allegations fall far

short of the Estelle standard.

      Accordingly, for these and substantially the reasons set forth by the

magistrate judge in his Supplemental Report and Recommendation of February 5,




                                           -6-
2002, as adopted by the district court’s order of May 7, 2002, the judgment of the

United States District Court for the Western District of Oklahoma is AFFIRMED.

Plaintiff’s motion to proceed without prepayment of costs and fees is granted.

She is reminded that she remains obligated to continue making partial payments

until the entire fee has been paid.



                                                   Entered for the Court



                                                   Harris L Hartz
                                                   Circuit Judge




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