                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     October 11, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 STEV EN R. TH OM AS,

               Plaintiff-Appellant,                      No. 05-3480
          v.                                          District of Kansas
 NEAL R. BROCKBANK, Contracting                 (D.C. No. 04-CV-3315-M LB)
 Physician, Hutchinson Correctional
 Facility, in his individual and official
 capacity, and any bond(s) or sureties
 under which he may perform his
 duties; DENNIS GOFF, Nurse
 Practitioner, Hutchinson Correctional
 Facility, in his individual and official
 capacity, and any bond(s) or sureties
 under which he may perform his
 duties; JA NET M YERS, Health
 Services Administrator, Hutchinson
 Correctional Facility, in her individual
 and official capacity, and any bond(s)
 or sureties under which she may
 perform her duties; (FN U )
 TORRENCE, Contracted Eye D octor,
 Hutchinson Correctional Facility, in
 his individual and official capacity,
 and any bond(s) or sureties under
 which he may perform his duties,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


      *
        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). This case is
                                                                       (continued...)
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      During the eight months between the time he sustained an eye injury

playing handball and the date he was transferred to another Kansas correctional

facility, Steven Thomas, a Kansas state prisoner, received at least nine eye

examinations for his injury— six by optometrists and three by an ophthalmologist.

He was also examined by a prison nurse. Despite this treatment, M r. Thomas

claims that his Eighth Amendment rights were violated because the medical

personnel w ho treated him were deliberately indifferent to his eye care needs.

      The district court granted the defendants’ motions for summary judgment

and dismissed M r. Thomas’s claim on the merits even though M r. Thomas did not

exhaust his administrative remedies as 42 U .S.C. § 1997e(a) requires. At first

blush, this appears to violate our precedents, which “require[] dismissal where a

litigant has failed to complete such exhaustion.” Fitzgerald v. Corr. Corp. of

Am ., 403 F.3d 1134, 1140–41 (10th Cir. 2005). But we hold that summary




      *
       (...continued)
therefore 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.




                                         -2-
judgment was proper here because M r. Thomas’s complaint is frivolous within the

meaning of 42 U.S.C. § 1997e(c)(2) and may therefore be dismissed “without first

requiring the exhaustion of administrative remedies.” W e therefore AFFIRM the

district court’s judgment.

                             FA C TUAL BACKGROUND

      M r. Thomas w as playing handball in the Hutchinson Correctional Facility

(HCF) on April 25, 2004, when another inmate accidentally scratched M r.

Thomas’s eye. He immediately went to H CF’s medical clinic, where Nurse

Brenda Beetch and Dr. Neal Brockbank examined the injury and prescribed

medication.

      The following day, M r. Thomas was treated by defendant D ennis Goff, a

registered nurse practitioner. Nurse Goff examined M r. Thomas’s eye and

reviewed the medication ordered by Dr. Brockbank. Nurse Goff did not

remember any physician telling M r. Thomas that surgery would be required; he

also did not cancel any surgery scheduled for M r. Thomas because he is “not a

medical doctor and do[es] not have the authority to countermand a doctor’s

orders.” Appellee’s Supplemental App. 34, ¶ 4. So far as the record show s, Nurse

Goff had contact with M r. Thomas only on this one occasion.

      Two days after M r. Thomas was injured, he was examined by Dr. M ichael

Torrence, an optometrist who contracted with Correct Care Solutions, Inc. (CC S)

to provide health care services to inmates housed at HCF. He observed that M r.

                                       -3-
Thomas’s eyeball was scratched and the pupil was dilated. He directed M r.

Thomas to continue taking the same eye drops and ointment that Dr. Brockbank

prescribed. At no point did he order eye surgery for M r. Thomas, state that

surgery was required, or even suggest surgery to him.

      Dr. Torrence next saw M r. Thomas during a follow-up examination on M ay

10, 2004. At that time, M r. Thomas’s “cornea was clear, [his] retina was flat,

[and] no holes or tears were seen. [His] corneal abrasion was 98% resolved.”

M em. Op. 5.

      Dr. Torrence performed additional follow-up examinations on M ay 25, July

6, and August 10. Following the A ugust 10 exam, Dr. Torrence referred M r.

Thomas to an outside ophthalmologist. M r. Thomas w as eventually seen by Dr.

F.L. Depenbusch, M .D., who performed examinations on or about August 19,

September 22, and October 13, 2004, and prescribed further treatments for M r.

Thomas’s eye ailments.

      On December 14, 2004, M r. Thomas w as transferred from HCF to

Ellsworth Correctional Facility. He had no further contact with any of the

defendants after that date. After his transfer, M r. Thomas apparently has

continued to experience vision problems. He alleges that on November 21,

2005— thirteen months after he filed an amended complaint and eleven months

after his last contact with the defendants— he was taken to the Kansas U niversity




                                         -4-
M edical Center and was told he will be blind in his right eye for the rest of his

life.

        Long before this diagnosis, however, M r. Thomas filed suit against Dr.

Torrence, Nurse Goff, and M s. Janet M yers, a licensed registered nurse who is the

health care administrator for CCS at HCF. He alleged that these defendants

violated his Eighth Amendment rights by manifesting deliberate indifference to

his serious medical needs. He then filed an amended complaint, using a civil

rights complaint form that asked whether he previously sought administrative

relief for his grievances. He answered “yes” to this question and explained the

relief he sought and the results of his efforts as follow s:

        Claimant has exhausted all administrative remedies available to
        Claimant by making demand that the D efendant(s) disclose the nature
        and cause of the action which has caused Claimant damages and the
        Defendant(s) have repeatedly admitted that they can identify no
        lawful authority under which Defendant(s) act, and respond by
        knowingly and intentionally causing Claimant further damages.
        Claimant cannot find, nor have Defendant(s) provided to Claimant,
        any evidence or other reason to believe that the D efendant(s) are
        operating under any lawfully constituted state or corporate authority.

Am. Compl. 9.

        After M r. Thomas filed his amended complaint, the district court instructed

prison officials, pursuant to M artinez v. Aaron, 570 F.2d 317, 319–20 (10th Cir.

1978), to prepare a report detailing the factual record in this case. The report

describes the grievance M r. Thomas filed in HCF and the response by Janet

M yers, HCF’s health care administrator. See Appellee’s Supplemental App.

                                           -5-
30–31. It also describes M r. Thomas’s appeal of M s. M yer’s response to the

prison warden, together with the warden’s response, which states: “If you should

not agree with this response you do have the right to appeal my final decision

w ithin three (3) days to the office of the Secretary of Corrections, at your own

expense.” Id. at 32. Immediately after quoting the warden’s response, the

M artinez report states in bold typeface: “Plaintiff did not appeal to the Secretary

of Corrections.” Id.

      After the M artinez report was completed, the defendants filed motions for

summary judgment, without arguing failure to exhaust. The district court granted

the defendants’ summary judgment motions and dismissed M r. Thomas’s claim on

the merits. The court also denied M r. Thomas’s motions for appointment of

counsel. M r. Thomas now appeals from those district court orders.

                                   D ISC USSIO N

      I.     The D istrict Court D id N ot Abuse Its D iscretion By Refusing to
             Appoint Counsel for M r. Thom as.

      During the course of this litigation, M r. Thomas filed at least three motions

asking the district court to appoint counsel. The district court denied those

motions. “W e 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),

and find no abuse here.




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      These factors guide the decision to appoint counsel in a civil case: “the

merits of the litigant’s claims, the nature of the factual issues raised in the claims,

the litigant’s ability to present his claims, and the complexity of the legal issues

raised by the claims.” William s v. M eese, 926 F.2d 994, 996 (10th Cir. 1991).

The district court evaluated each of these factors before denying M r. Thomas’s

motion. It said:

      Because plaintiff is a state prisoner, the court will assume that
      plaintiff cannot pay for counsel. It does not appear that he has
      attempted to secure counsel. For the reasons set forth herein, the
      court finds that plaintiff’s allegations of discrimination are not
      meritorious. Finally, the court finds that plaintiff has adequately
      presented his case without counsel, notwithstanding his claim that he
      is now blind in one eye.

M em. Op. 2.

      In his brief before this Court, M r. Thomas challenges the district court’s

findings as to only one of these factors. He claims that he wrote “at least” 25

letters when attempting to secure counsel. Appellant’s Br. 13. Even assuming

that this is true, the district court’s other, unchallenged findings— particularly as

to the unmeritorious nature of M r. Thomas’s claims— sufficiently counterbalance

this factor to convince us that the court’s refusal to appoint counsel was not an

abuse of discretion.




                                           -7-
      II.    The D istrict Court Properly Dismissed M r. Thomas’s Eighth
             A mendment C laim.

      In a somewhat unusual move, M r. Thomas “stipulates” in his brief “that the

court did act appropriately in dismissing his complaint for failure to state a claim”

but argues that the court “should have allowed him the opportunity of counsel and

discovery tools on his complaint.” Appellant’s Br. 12. W e think M r. Thomas

never would have made that admission if he understood its full legal import.

Given our obligation to liberally construe pro se pleadings, see White v.

Colorado, 82 F.3d 364, 366 (10th Cir. 1996), we will therefore construe his brief

as challenging the merits of the district court’s ruling.

      Even interpreting M r. Thomas’s brief that way, we hold that the district

court properly dismissed M r. Thomas’s Eighth Amendment claim for alleged

deliberate indifference to his medical needs. This conclusion, however, is based

on different reasoning than the district court’s order.

      The district court entered summary judgment under Rule 56(c) because it

found that there was “‘no genuine issue as to any material fact’ and that [the

defendants were] ‘entitled to a judgment as a matter of law.’” Thom v. Bristol-

M yers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (quoting Fed. R. Civ. P.

56(c)). The trouble w ith this ruling is that the district court “skip[ped] ahead to

the merits of the suit” w ithout first requiring M r. Thomas to exhaust his




                                          -8-
administrative remedies as 42 U.S.C. § 1997e(a) requires. Fitzgerald, 403 F.3d at

1141.

        W e have previously held that “§ 1997e(a) imposes a pleading requirement

on the prisoner” and that the Prison Litigation Reform Act “established an unique

procedure under which the [district] court, not the parties, is required to evaluate

whether a claim on which relief may be granted is stated.” Steele v. Fed. Bureau

of Prisons, 355 F.3d 1204, 1210–11 (10th Cir. 2003) (internal quotation marks

omitted). W e said in Steele that “a complaint ‘that fails to allege the requisite

exhaustion of remedies is tantamount to one that fails to state a claim upon which

relief may be granted.’” Id. at 1210 (quoting Rivera v. Allin, 144 F.3d 719, 731

(11th Cir. 1998)). W e expanded this ruling in Fitzgerald when we said “that 42

U.S.C. § 1997e(a) requires exhaustion of administrative remedies as a

precondition to bringing litigation, and requires dismissal where a litigant has

failed to complete such exhaustion.” 403 F.3d at 1140–41 (emphasis added)

(citing Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 534 (7th Cir. 1999)).

        The M artinez report, as w ell as his ow n summary, indicated that M r.

Thomas had failed to exhaust his administrative remedies, yet the district court

did not dismiss his claim as our precedents and § 1997e(a) mandate. This error,

however, does not require reversal in this case because M r. Thomas’s complaint

falls within an exception to the exhaustion requirement identified in Fitzgerald.

See id. at 1141. There, we said that “[f]ederal courts should not adjudicate” a

                                           -9-
prisoner’s claim if he has failed to exhaust administrative remedies “unless the

complaint satisfies 42 U.S.C. § 1997e(c)(2).” Id. (quotation marks and brackets

omitted) (emphasis added). Section 1997e(c)(2) states that “[i]n the event that a

claim is, on its face, frivolous . . . , the court may dismiss the underlying claim

without first requiring the exhaustion of administrative remedies.” 42 U.S.C. §

1997e(c)(2).

      In Fitzgerald, we held that § 1997e(c)(2) permitted the district court to

grant summary judgment on a prisoner’s Eighth Amendment deliberate

indifference claim even though the prisoner had failed to exhaust administrative

remedies. See 403 F.3d at 1143. W e found that the prisoner’s complaint was

frivolous because the defendant doctor’s alleged conduct “did not amount to an

act or omission ‘sufficiently harmful to evidence deliberate indifference to serious

medical needs.’” Id. (quoting Estelle v. Gamble, 429 U.S. 106, 107 (1976)).

      W e think that same result is proper here. The facts M r. Thomas alleges

simply cannot satisfy the subjective component of the well-known deliberate

indifference test. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).

As described above, M r. Thomas’s injury was promptly treated after it occurred

on April 25, and he received the necessary and appropriate follow-up treatment

(from Dr. Torrence and other outside specialists) until he was transferred to

another facility in December 2004. There is also a complete lack of evidence to

support M r. Thomas’s claim that Dr. Brockbank scheduled an emergency surgery

                                          -10-
for A pril 26, 2004, and that Dr. Torrence, M r. G off, or M s. M yers cancelled it.

Rather, the undisputed evidence shows that no member of HCF’s medical staff

“ordered, required, or even suggested” that M r. Thomas needed surgery.

Appellee’s Supplemental App. 34, 36. In short, M r. Thomas fails to provide any

evidence that Dr. Torrence, M r. Goff, or M s. M yers knew of— and then

disregarded— an excessive risk to his health or safety.

      The best that can be said for M r. Thomas’s claims of deliberate

indifference is that he sincerely disagrees with the defendants’ diagnoses or

prescribed course of treatment for his eye injury. Those feelings, of course, do

not amount to an Eighth Amendment violation. Perkins v. Kan. Dep’t of Corr.,

165 F.3d 803, 811 (10th Cir. 1999) (citing Estelle, 429 U.S. at 106). The lack of

any evidence showing that the defendants knew of and disregarded an excessive

risk to M r. Thomas’s health convinces us that his claims are frivolous for

purposes of § 1997e(c)(2) and that the district court therefore properly dismissed

them even though he failed to exhaust his administrative remedies.

                                   C ON CLU SIO N

      The judgment of the United States District Court for the District of Kansas

is AFFIRM ED. W e remind M r. Thomas that he is obligated to continue making

partial payments until the entire appellate filing fee has been paid.

                                                 Entered for the Court,

                                                 M ichael W . M cConnell
                                                 Circuit Judge

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