                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          FEB 17 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ROGER EUGENE GRESHAM,

          Plaintiff - Appellant,
 v.

 A. M. FLOWERS; JOHN DOE,
 Lieutenant, John Doe I; M.
                                                        No. 99-6397
 ENGLAND, P.A.; C.A. WAGGONER;
                                                 (D.C. No. CIV-98-902-L)
 MIKE MAIZE; B. MALCHER, M.D.;
                                               (Western District of Oklahoma)
 JOHN DOE II; JOHN DOE III;
 UNITED STATES FEDERAL
 GOVERNMENT; T. JORDAN;
 JAMES D. CROOK; JOHN B.
 HUGHES, D.O.,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



               Roger Eugene Gresham, appearing pro se, appeals from the district

court’s grant of summary judgment to defendants-appellees for failure to allege a


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
cognizable violation of his constitutional rights or the Federal Tort Claims Act

(“FTCA”), from the court’s dismissal of sundry other claims for failure to state a

claim for which relief can be granted, and from its denial of his motion to amend

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

the judgment of the district court.

                                          I

      Gresham is a federal inmate incarcerated at the Federal Correctional

Institution in El Reno, Oklahoma, serving a sentence of 327 months for

possession of an unregistered firearm and for possession of a firearm as a felon.

On September 21, 1997, while sitting or leaning against the handrail of a staircase

on the second floor, he slipped and fell backwards, landing on the first floor.

Prison staff responded by taking him to be examined by defendant England, a

physician’s assistant, to whom he complained of a headache and pain in his right

wrist. After finding slight swelling in his right wrist but no bruising and a full

range of motion, England treated him with ice-packs and an analgesic (ibuprofen)

and advised him to return to sick call if necessary.

      The next day Gresham returned for a second examination, at which time his

right wrist showed bruising and swelling. X-rays revealed a fracture of his right

wrist and no fracture of his left wrist. Medical staff placed a short-arm fiberglass

cast on his right wrist and provided him with further analgesics.


                                         -2-
After several subsequent examinations for pain management and follow-up, on

October 21, 1997, Gresham was referred to an orthopedist, Dr. John Hughes, due

to continuing pain and disability. Hughes recommended that Grisham’s right-arm

cast be shortened and that a cast be placed on his left arm for three to four weeks

due to a non-displaced radial styloid fracture. These recommendations were

followed by prison authorities. Subsequent to Hughes’s examination, Gresham

repeatedly complained of, and was treated for, back pain, culminating in surgery

at an Oklahoma City hospital, which, in turn, was followed by several

examinations, treatments for pain and inflamation, and rehabilitative treatments

by prison medical staff and Dr. Hughes. On November 17, 1998, the consulting

orthopedist recommended that Gresham be transferred to a medical facility with a

formal back rehabilitation program.

      On June 29, 1998, Gresham filed an action against defendants-appellees in

United States District Court for the Western District of Oklahoma, seeking

damages for violations of his rights under the Fifth, Eighth, Ninth, and Fourteenth

Amendments to the United States Constitution. He also alleged medical

malpractice under the FTCA and violations of other federal statutes, including the

Americans with Disabilities Act (“ADA”). Adopting the recommendations of the

magistrate judge, on September 30, 1999, the district court granted summary

judgment to defendants-appellees on Gresham’s constitutional and tort claims,


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dismissed his statutory claims and his claim against Dr. Hughes for failure to state

a claim for which relief can be granted, and dismissed without prejudice other

claims brought subsequent to the filing of defendants-appellees’ responsive

pleadings. This appeal followed.

                                         II

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

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

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

(10th Cir.) (citing Byers v. Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998)),

cert. denied, 120 S. Ct. 53 (1999). The district court properly granted summary

judgment “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), “view[ing] the evidence . . .

in the light most favorable to the nonmoving party,” Simms, 165 F.3d at 1326.

                                          A

      Construing Gresham’s pro se pleadings liberally, as required under Haines

v. Kerner, 404 U.S. 519, 520-21 (1972), we read his briefs as alleging a deliberate

indifference claim under the Eighth Amendment to the Constitution of the United

States. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics         ,


                                         -4-
403 U.S. 388, 397 (1971) (holding that a plaintiff can recover money damages for

injuries suffered as a result of a federal agent’s violation of her Fourth

Amendment rights); see also Carlson v. Greene , 446 U.S. 14, 20 (1980)

(recognizing Bivens actions for alleged violation of Eighth Amendment rights).     1



It is undisputed that convicted inmates are protected from “deliberate

indifference” to their “serious medical needs.”   Estelle v. Gamble , 429 U.S. 97,

104 (1976). To establish deliberate indifference, a prisoner must demonstrate

more than mere negligence; a negligent failure to provide adequate medical care,

even one constituting medical malpractice, does not rise to the level of a

constitutional violation.   See id. at 105-06. Even if Gresham were correct that

appellees were negligent in some way or the treating physicians somehow

committed malpractice (allegations for which we find no support in the record),

the evidence in this case does not rise to the level of a showing of deliberate

indifference to his serious medical needs, given appellees’ ongoing,

comprehensive, good-faith efforts to treat his pain and other ailments, as noted

above.

       As for Gresham’s claim of unconstitutional delay in the treatment he

received, a delay in prescribing medical treatment constitutes a violation of the


       1
        Gresham alleges numerous constitutional violations as a result of
defendants-appellees’ failure to provide him with adequate medical care. These
claims are properly addressed under an Eighth Amendment analysis.

                                           -5-
Eighth Amendment only “‘if there has been deliberate indifference which results

in substantial harm.’”   Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993)

(quoting Mendoza v. Lynaugh , 989 F.2d 191, 195 (5th Cir. 1993))    . “Delays that

courts have found to violate the Eighth Amendment have frequently involved

life-threatening situations and instances in which it is apparent that delay would

exacerbate the prisoner’s medical problems.” Hunt v. Uphoff, No. 98-8073, 1999

WL 1268340, at *3 (10th Cir. Dec. 30, 1999) (citing Hill v. Dekalb Reg’l Youth

Detention Ctr., 40 F.3d 1176, 1187 & n.21 (11th Cir. 1994) (collecting cases)).

Prison officials may be liable for delays resulting in lifelong handicaps or

permanent losses. See id. Gresham’s claim necessarily fails because he has not

alleged “deliberate indifference which result[ed] in substantial harm” from the

failure to immediately place his wrists in casts and to shorten the cast on his right

wrist. Olson, 9 F.3d at 1477. At most, Gresham has alleged that a period of

approximately twenty-four hours went by before his right wrist fracture was set,

during which time he had been given ice-packs and analgesics, and that another

orthopedist subsequently recommended a modified course of treatment for his

right and left wrists. He alleges neither “a lifelong handicap [n]or a permanent

loss,” nor significant harm of any sort from the delay. Hunt, 1999 WL 1268340,

at *3. In addition, he brings no sufficiently particularized allegations of

constitutional violation against individual defendants such that they might be held


                                          -6-
personally liable. See Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir. 1997)

(“Bivens defendants can face personal liability.”) (citing Carlson v. Green, 446

U.S. 14, 21-23 (1980)). On the contrary, the record before us indicates that

Gresham consistently was accorded comprehensive and continuing treatment for

more than a year after his accident. The district court properly granted summary

judgment to defendants on Gresham’s Bivens claim.

                                         B

      In addition to his constitutional claim, Gresham also brings a claim against

defendants under the FTCA for common law negligence, as to which the district

court likewise granted summary judgment to defendants. The FTCA provides in

relevant part that the United States can be sued for personal injury resulting from

the “negligent or wrongful act or omission of any employee of the Government

while acting within the scope of his office or employment, under circumstances

where the United States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission occurred.” 28

U.S.C. § 1346(b)(1).

      We emphasized in Garrett, 127 F.3d at 1266 (citing 28 U.S.C. § 2675(a)),

that “to bring a claim under FTCA, an inmate must exhaust separate

administrative procedures before bringing the claim in federal court.” Assuming

arguendo that Gresham has exhausted available administrative procedures, we


                                        -7-
apply Oklahoma law to determine whether he states a genuine issue of material

fact. Under Oklahoma law, the elements necessary to establish a prima facie case

of negligence are: “(1) a duty owed by the defendant to protect the plaintiff from

injury, (2) a failure to properly exercise or perform that duty and (3) the

plaintiff’s injuries are proximately caused by the defendant’s failure to exercise

his duty of care.” McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 470

(Okla. 1987) (citations omitted). The evidence in this case indicates a level of

concern for, and prompt response to, Gresham’s needs that does not raise the

faintest hint of medical malpractice. Gresham therefore fails to demonstrate that

defendants-appellees failed to “properly exercise or perform” their duties towards

him and fails to state a prima facie case of medical malpractice under Oklahoma

law and the FTCA. Id.

         To the extent Gresham attempts to state a claim for negligence based on the

configuration of the handrails in the federal prison, Gresham likewise fails to

demonstrate a genuine issue of material fact as to breach of duty. D efendants

presented evidence that the handrails exceeded the minimum parameters

suggested by the National Fire Protection Association’s    Life Safety Code

Handbook (1994 ed.). Because Gresham failed to adequately challenge this

evidence, the district court properly granted summary judgment as to his FTCA

claim.


                                          -8-
                                         III

       The district court dismissed for failure to state a claim for which relief

could be granted Gresham’s claims under the ADA, 40 U.S.C. § 619, and 18

U.S.C. § 4042, and his claims against Hughes. We review de novo the court’s

dismissal. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226,

1236 (10th Cir. 1999). “A 12(b)(6) motion should not be granted ‘unless it

appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.’” GFF Corp. v. Associated Wholesale

Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson,

355 U.S. 41, 45-46 (1957)). Our review of Gresham’s claims and the underlying

record indicates that Gresham has indeed failed to state any cognizable violation

of the cited statutes. As for his action against Hughes, we agree with the district

court that that claim, too, is utterly without merit: Our reading of the record

indicates no action on Hughes’s part that might even remotely be construed as

negligent. 2

       With regard to the court’s denial of Gresham’s motion to amend his

complaint, the district court found that he had not sought leave of the court to



       2
         In his brief on appeal, Gresham alleges that Hughes performed the back
operation without his consent. Because he failed to raise this claim below, we
will not consider it on appeal. See Walker v. Mather, 959 F.2d 894, 896 (10th
Cir. 1992).

                                         -9-
amend his complaint pursuant to Fed. R. Civ. P. 15(a) and that in any case the

additional claims he sought to bring were frivolous. Nevertheless, the court

dismissed the claims without prejudice, permitting Gresham to bring them again

in a future action. “‘[A] decision to grant leave to amend a complaint, after the

permissive period, is within the trial court’s discretion [under Fed. R. Civ. P.

15(a)] and will not be disturbed absent an abuse of that discretion.’” Pallottino v.

Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (quoting Woolsey v. Marion

Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991)). In our view, the court’s

decision was proper.

                                          IV

      If the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), that

dismissal counts as a strike for purposes of the Prison Litigation Reform Act

(“PLRA”) of 1995, 28 U.S.C. § 1915(g). See Jennings v. Natrona County

Detention Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). The district

court correctly determined that Gresham’s complaint against Dr. Hughes and his

claims under the ADA, 40 U.S.C. § 619, and 18 U.S.C. § 4042, did not state

claims for which relief could be granted, and its dismissal therefore falls under 28

U.S.C. § 1915(e)(2)(B)(ii) (“the action . . . fails to state a claim for which relief

may be granted”). Gresham thus incurs strike one for purposes of 28 U.S.C. §

1915(g). He is advised that if he incurs two more strikes by filing further


                                         - 10 -
frivolous suits (or appeals), under the PLRA he will no longer be entitled to

proceed in forma pauperis in a civil action in federal court—other than petitions

for writ of habeas corpus—not involving “‘imminent danger of serious physical

injury.’” White v. Colorado, 157 F.3d 1226, 1232 (10th Cir. 1998) (quoting 28

U.S.C. § 1915(g)), cert. denied, 119 S. Ct. 1150 (1999).

      We remind Gresham of his continuing obligation to pay all installments of

the deferred district court and appellate filing fees until they are paid in full. No

exception is made for dismissed appeals. See 28 U.S.C. § 1915(b)(2); Jennings,

175 F.3d at 781.

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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