                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   July 18, 2011
                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court

    VINCENT EUGENE WELLS,

                Plaintiff-Appellant,
                                                          No. 10-1514
    v.                                       (D.C. No. 1:10-CV-00023-LTB-KMT)
                                                           (D. Colo.)
    STEPHEN R. KREBS, M.D., Medical
    Director, Physician Health Partners;
    JOSEPH FORTUNATO, M.D.,
    Sterling Correctional Facility; BARRY
    GOLDSMITH, M.D., Sterling
    Correctional Facility; PAULA
    FRANTZ, M.D., Medical Director,
    Colorado Department of Corrections;
    JO ANNE STOCK, P.A., Sterling
    Correctional Facility; BEVERLY
    DOWIS, Health Service
    Administrator; CHERYL SMITH,
    Clinical Chief of Operations, Colorado
    Department of Corrections,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.


*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
         Vincent Eugene Wells, a state prisoner proceeding pro se, appeals from a

summary judgment in favor of the defendants on his 42 U.S.C. § 1983 claims of

an Eighth Amendment violation, deliberate medical indifference. He also

complains about scheduling matters and the delay in ruling on his motion for a

preliminary injunction. ** We AFFIRM.

                                    B ACKGROUND

         Wells is incarcerated in Colorado’s Sterling Correctional Facility. In

January 2010, he filed this action, claiming he received inadequate medical care

for various health problems, including: “lupus, hepatitis, degenerative disc

disease, kidney cysts, lymphatic disorder and a malignant neoplastic prostate, or

even undiagnosed cancer,” as well as constipation, deep vein thrombosis and

polycythemia vera. R. at 13, 14. He named as defendants, doctors Stephen

Krebs, Joseph Fortunato, Barry Goldsmith, Paula Frantz; physician’s assistant Jo

Anne Stock; and prison administrators Beverly Dowis and Cheryl Smith.

         Wells also moved for a preliminary injunction to require the defendants “to

provide proper and adequate Chronic health care and[/]or transfer him to a full

hospital facility that will provide such medical care.” Id. at 36. The defendants

opposed the motion, providing evidence of the extensive medical care provided to



**
     Our jurisdiction derives from 28 U.S.C. § 1291.

                                          -2-
Wells. Dr. Frantz, the chief medical officer for the Colorado Department of

Corrections, submitted an affidavit, opining there was no medical support for

many of Wells’ health concerns. There were also medical records noting Wells’

“uncanny fear of dying,” id. at 182, and his “demand[s] something [is] wrong

with him” even when imaging and lab reports show otherwise, id. at 184, 186.

      A magistrate judge reviewed the complaint, noted there were no allegations

the defendants had personally participated in the deprivation of any constitutional

right, and ordered Wells to file an amended complaint. In response, Wells filed a

more detailed complaint.

      The defendants then moved for summary judgment, arguing they were

entitled to qualified immunity. Wells sought to postpone a summary judgment

ruling, contending the district court should rule on his request for injunctive relief

and establish an “[e]xpedited [d]iscovery process or meeting.” Id. at 558.

      Several weeks later, Wells responded to the defendants’ summary judgment

motion, submitting medical records and his own affidavit. The following day, the

magistrate judge entered a minute order denying Wells’ request to postpone a

summary judgment ruling, stating Wells failed to indicate why facts precluding

summary judgment could not be presented, what steps had been taken to obtain

such facts, or how additional time would enable him to rebut the defendants’

arguments. Wells sought reconsideration of the minute order, asserting that a

recent hospitalization was the result of inadequate medical care.

                                          -3-
          The magistrate judge denied reconsideration and recommended granting the

defendants’ summary judgment motion. In regard to summary judgment, the

magistrate judge concluded that Wells’ claims regarding hepatitis treatment failed

because there were no allegations of personal participation by any defendant in

denying care. Similarly, there was no evidence Dr. Frantz or Administrator Smith

had personally participated in any of the acts forming the bases of his claims. As

for Wells’ claims regarding lupus, cancer, hypoglycemia, and polycythemia vera,

the magistrate judge noted there was no evidence he had those diseases. As to his

claims of inadequate care for deep vein thrombosis, a separated shoulder, kidney

cysts, degenerative disc disease, swollen lymph nodes, weight loss, constipation

and other conditions, the magistrate judge rejected them on a variety of grounds:

they were belied by the medical evidence, they merely reflected Wells’

disagreement with treatment protocols, or they were premised on a difference of

medical opinion among the defendant doctors. Because Wells was unable to

establish a Constitutional violation with respect to his medical care, the

magistrate judge concluded the defendants were entitled to qualified immunity

and injunctive relief was unwarranted.

          The district court accepted the recommendations, entered summary

judgment in favor of the defendants, and denied Wells’ motion for injunctive

relief.




                                          -4-
                                    D ISCUSSION 1

      Wells first challenges the order denying his motion to postpone a ruling on

the motion for summary judgment. Wells did not, however, file an affidavit to

support his motion. “Where a party opposing summary judgment and seeking a

continuance pending completion of discovery fails to take advantage of the shelter

provided by Rule 56(f) by filing an affidavit, [2] there is no abuse of discretion in

granting summary judgment if it is otherwise appropriate.” Pasternak v. Lear

Petroleum Exploration, Inc., 790 F.2d 828, 832-33 (10th Cir. 1986).

      While Wells did file the required affidavit when seeking reconsideration, he

identified a need for additional discovery only as to a hospitalization occurring

after the filing of his amended complaint. That matter was not part of the original

complaint and Wells did not seek to amend to include it. Consequently, the

magistrate judge did not abuse her discretion in declining to delay decision on the



1
       Because Wells is proceeding pro se, we liberally construe his appellate
briefs. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008).
2
      Effective December 1, 2010, the provision for obtaining a summary
judgment continuance was moved to subdivision (d) of Rule 56 without
substantial change:

      If a nonmovant shows by affidavit or declaration that, for specified
      reasons, it cannot present facts essential to justify its opposition, the
      court may: (1) defer considering the motion or deny it; (2) allow
      time to obtain affidavits or declarations or to take discovery; or
      (3) issue any other appropriate order.

Fed. R. Civ. P. 56(d); see also Advisory Committee’s Note (2010 Amendments).

                                          -5-
motion for summary judgment or in denying reconsideration. See Pasternak, 790

F.2d at 832-33; Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir.), cert.

denied, 131 S. Ct. 163 (2010). On a related note, Wells complains of the failure

to hold a scheduling conference or issue a scheduling order, but he does not

identify—nor do we see—how that affected any of his substantial rights. See Fed.

R. Civ. P. 61.

      Wells next contends the “[d]istrict [c]ourt incorrect[ly] determin[ed] that no

material facts or genuine issue existed to support his claims.” Aplt. Br. at 2(a).

We disagree. Summary judgment is appropriate when “the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a defendant asserts

“the qualified immunity defense, the burden shifts to the plaintiff, who must meet

a strict two-part test by showing (1) that the defendant violated a constitutional or

statutory right, and (2) that this right was clearly established at the time of the

defendant’s conduct.” Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009)

(internal quotation marks omitted). “We review a grant of summary judgment on

the basis of qualified immunity de novo.” Harman v. Pollock, 586 F.3d 1254,

1260 (10th Cir. 2009), cert. denied, 131 S. Ct. 73 (2010).

      Wells asserts the defendants were deliberately indifferent to his serious

medical needs in violation of the Eighth Amendment’s Cruel and Unusual

Punishments Clause. Such a “claim has both an objective component—whether

                                           -6-
the deprivation is sufficiently serious—and a subjective component—whether the

official acted with a sufficiently culpable state of mind.” Perkins v. Kansas Dep’t

of Corr., 165 F.3d 803, 809 (10th Cir. 1999). But “[a] negligent failure to

provide adequate medical care, even one constituting medical malpractice, does

not give rise to a constitutional violation. Moreover, a prisoner who merely

disagrees with a diagnosis or a prescribed course of treatment does not state a

constitutional violation.” Id. at 811 (citation omitted).

      We have reviewed the record, and agree with the magistrate judge and for

substantially the same reasons she identified in her detailed recommendation filed

September 1, 2010– Wells failed to show an Eighth Amendment violation. The

defendants were qualifiedly immune from suit and entitled to summary judgment.

      Finally, Wells contends the magistrate judge should have “immediate[ly]

rul[ed]” on his motion for preliminary injunctive relief, rather than resolve it at

the same time as the defendants’ summary judgment motion. Aplt. Br. at 3. 3 But

Wells does not indicate how an earlier ruling would have made any difference in

the ultimate result. Indeed, based on the medical records and other evidence

submitted by the defendants in response to his motion—which was much the same

evidence submitted in support of the summary judgment motion—the magistrate


3
       To the extent this contention also concerns Wells’ motion for a temporary
restraining order, the denial of a temporary restraining order is not appealable.
See Populist Party v. Herschler, 746 F.2d 656, 661 n.2 (10th Cir. 1984) (per
curiam).

                                          -7-
judge could have immediately denied injunctive relief because he failed to show

“a substantial likelihood that he [would] prevail on the merits,” Utah Licensed

Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1075 (10th Cir. 2001).

                                   C ONCLUSION

      The judgment of the district court is AFFIRMED. Wells’ “Request for an

Expidited [sic] Ruling” is DENIED as moot. His motion to proceed on appeal in

forma pauperis is DENIED as this appeal is frivolous. He must forthwith pay the

entire $455 filing and docketing fees to the Clerk of the District Court.



                                                    Entered for the Court


                                                    Terrence L. O’Brien
                                                    Circuit Judge




                                         -8-
