                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 5 2004
                                    TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 DARYL A. WITMER,

          Plaintiff - Appellant,
 v.

 DAVID L. POWELL; T.G. HODGE;
                                                      No. 04-7064
 STEPHEN GRAGG; ERIC
                                                (D.C. No. CV-04-48-WH)
 FRANKLIN; RICK CAYWOOD;
                                                      (E.D. Okla.)
 DENNIS COTNER; MELINDA
 GUILFOYLE; CHERYL BRYAN;
 WALTER DINWIDDIE; and RON
 WARD,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, MURPHY and McCONNELL, Circuit Judges.


      Plaintiff-Appellant Daryl Witmer commenced this 42 U.S.C. § 1983 action

seeking money damages from several Oklahoma Department of Corrections’



      *
        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Order and Judgment is not binding precedent, except under the doctrines of law of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.
employees, alleging that, while Witmer was incarcerated, defendants 1) denied

him adequate medical care; and 2) retaliated against him because he sought

medical care by pursuing fabricated prison disciplinary proceedings against him.

The district court granted defendants summary judgment, holding they were

entitled to qualified immunity from Witmer’s claims. 1 Witmer appeals. For the

following reasons, we affirm.

      We review the district court’s decision de novo, considering the evidence in

the light most favorable to the nonmoving party. See Olsen v. Layton Hills Mall,

312 F.3d 1304, 1311 (10th Cir. 2002). Summary judgment is appropriate only “if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

      Nonetheless,



      1
             Witmer specifically sued defendants only in their individual capacity.
Nevertheless, the district court held that any claims for money damages Witmer
was asserting against defendants in their official capacity would fail. We agree.
Witmer cannot sue the State, or its officers in their official capacity, for money
damages under § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58,
63-66, 70-71 (1989). Moreover, with limited exceptions not relevant here, “the
Eleventh Amendment prohibits a citizen from filing suit against a state in federal
court.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Similarly, the
Eleventh Amendment also protects state officials sued for money damages in their
official capacity. See id. at 1180-81.

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      [t]his court . . . review[s] summary judgment orders deciding
      qualified immunity questions differently from other summary
      judgment decisions because of the purposes behind qualified
      immunity. When a § 1983 defendant raises the defense of qualified
      immunity on summary judgment, the burden shifts to the plaintiff to
      show that 1) the official violated a constitutional . . . right; and 2) the
      constitutional . . . right was clearly established when the alleged
      violation occurred. First, taken in the light most favorable to the
      party asserting the injury, do the facts alleged show the officer’s
      conduct violated a constitutional right? If so, we . . . ask whether the
      right was clearly established. If the plaintiff does not satisfy either
      portion of the two-pronged test, the Court must grant the defendant
      qualified immunity. If the plaintiff indeed demonstrates that the
      official violated a clearly established constitutional . . . right, then
      the burden shifts back to the defendant, who must prove that no
      genuine issues of material fact exist and that the defendant is entitled
      to judgment as a matter of law. In the end, therefore, the defendant
      still bears the normal summary judgment burden of showing that no
      material facts remain in dispute that would defeat the qualified
      immunity defense.

Olsen, 312 F.3d at 1311-12 (citations, quotations, alterations omitted).

      We first address Witmer’s claim that defendants deprived him of adequate

medical attention, contrary to the Eighth Amendment. “The right to custodial

medical care is clearly established.” Id. at 1315. Witmer will “state[] a

cognizable Eighth Amendment claim for the denial of medical attention if he

allege[s] acts of omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Id. (quotation omitted). Deliberate

indifference

      involves both an objective and a subjective component. The former
      is met if the deprivation is sufficiently serious -- that is, if it is one
      that has been diagnosed by a physician as mandating treatment or one

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      that is so obvious that even a lay person would easily recognize the
      necessity for a doctor’s attention. The latter is satisfied if an officer
      knows of and disregards an excessive risk to [an inmate’s] health or
      safety. Essentially, the officer must be aware of facts from which the
      inference could be drawn that a substantial risk of serious harm
      exists, and he must also draw that inference.

Id. (citations, quotations omitted).

      In this case, Witmer alleged, and defendants do not dispute, that he suffered

from a serious back condition, diagnosed by a number of doctors, that eventually

required surgery. Nor is there any dispute that prison officials knew about

Witmer’s back condition. Nonetheless, Witmer has failed to establish that

defendants, in treating Witmer’s back condition and in his conditions of

confinement generally, disregarded an excessive risk to his health or safety.

      Although Witmer claims that defendants provided him with inadequate

medical care and failed to follow his physicians’ orders, defendants have provided

Witmer’s prison medical records, which indicate the prison’s medical staff saw

Witmer frequently. He also received a number of consultative exams from

doctors outside the prison. And the medical staff consistently prescribed and

dispensed pain medication for Witmer.

      Further, although Witmer asserts that defendants forced him to work even

though he was physically unable to do so, his prison records indicate that prison

officials assigned him to work duties within the physical limitations imposed by



                                         -4-
his prison doctors. Witmer does not present any evidence with which he can

dispute defendants’ evidence.

         Witmer, instead, argues that he should have had surgery on his back sooner

than he did, and that he could not perform the light work his doctor said he could.

The fact that Witmer disagrees with his physicians’ medical opinions, however, is

not sufficient to support § 1983 relief. See Estelle v. Gamble, 429 U.S. 97,

107-08 (1976); see also Giron v. Corr. Corp., 191 F.3d 1281, 1286 (10th Cir.

1999).

         Defendants, then, have presented evidence refuting Witmer’s allegations

that they were deliberately indifferent to his serious medical needs. Witmer,

however, has failed to present any evidence upon which he can dispute

defendants’ evidence and thus create a genuine issue of material fact that would

preclude summary judgment. For these reasons, then, the district court did not err

in granting defendants summary judgment on Witmer’s claim challenging his

medical care. See McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001)

(affirming summary judgment for prison doctor because inmate failed to

demonstrate doctor had acted with deliberate indifference).

         Next, we consider Witmer’s claim that defendants retaliated against him for

seeking necessary medical care by pursuing fabricated prison disciplinary




                                          -5-
proceedings against him. 2 “Prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his constitutional rights. This

principle applies even where the action taken in retaliation would be otherwise

permissible.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (citation,

quotations omitted). Nonetheless, Witmer had the burden of proving “that but for

the retaliatory motive, the incidents to which he refers, including the disciplinary

action, would not have taken place.” Id. (quotation omitted).

      Defendants presented evidence indicating that Witmer violated prison rules,

warranting the disciplinary proceedings at issue here. Further, defendants’

evidence indicates these disciplinary charges did not result from Witmer’s

physical condition, but from his failure to comply with prison rules which he was

physically capable of performing. Defendants, therefore, have produced evidence

that they did not act to retaliate against Witmer for exercising his constitutional

rights. Again, Witmer has failed to produce any evidence that creates a genuinely

disputed factual issue sufficient to preclude summary judgment. The district

court, therefore, properly granted defendants summary judgment on Witmer’s

retaliation claim. See id. at 1144-45.


      2
             To the extent Witmer, instead, seeks damages for the disciplinary
procedures used to deprive him of good time credits, his claim fails because those
disciplinary proceedings have not been overturned. See Edwards v. Balisok, 520
U.S. 641 (1997); see also Reed v. McKune, 298 F.3d 946, 953-54 (10th Cir.
2002).

                                         -6-
      Finally, for the first time in his brief before this court, Witmer asserts a

number of new claims and allegations against these defendants. Those claims,

however, are not properly before this court and we will not consider them. See

Employers Reinsurance Corp. v. Mid-Continent Cas. Co., 358 F.3d 757, 775 (10th

Cir. 2004).

      For the foregoing reasons, then, we AFFIRM the district court’s summary

judgment entered for defendants.



                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




                                         -7-
