                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0671n.06
                           Filed: September 6, 2006

                                            No. 05-5105

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

KENNETH E. MCFARLAND,

       Plaintiff-Appellant,
                                                             On Appeal from the
v.                                                           United States District Court for
                                                             the Eastern District of Tennessee
DR. DEMITRIUS AUSTIN, M.D.; F.N.P.
CHAFEN; FARLEY, R.N.; PHYLLIS
CAMPBELL, L.P.N.; HAMPTON, L.P.N.;
GUILLY, R.N.; TRENT, L.P.N.; STREET,
L.P.N.; DR. FRED LITTON, M.D.; JERRY
HAYES, H.A.; MARTY EVANS, L.P.N.; DR.
SWANSON, D.D.S.; DR. DIBOLE,
Psychiatrist; MS. FURCHESS, Nurse,

       Defendants-Appellees.

                                                /


       Before: KENNEDY and DAUGHTREY, Circuit Judges; ADAMS, District Judge.*

       PER CURIAM. Kenneth E. McFarland, a Tennessee prisoner proceeding pro se, appeals the

dismissal of his civil rights action filed pursuant to 42 U.S.C. § 1983.

       Seeking injunctive relief and $1,000,000 from each defendant, McFarland filed a complaint

against numerous medical personnel at the Northeast Correctional Complex in Mountain City,

Tennessee, alleging that the medical personnel conspiratorially refused to properly diagnose and treat

his alleged ailments, including: hemoglobin C, patella tendinitis, dental/oral defects, and sciatica.

McFarland also alleged that, although smoke exacerbated his hemoglobin illness, the guards


       *
        The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
                                            No. 05-5105
                                                -2-

continued to smoke around him and the medical personnel refused to issue him documentation which

would allow him to be placed in a non-smoking housing unit. The district court dismissed the

complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). McFarland now appeals.

       We review de novo a district court order dismissing a complaint for failure to state a claim

pursuant to 28 U.S.C. §§ 1915(e). Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000). When

determining whether a complaint fails to state a claim, the court must construe the complaint in a

light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether

the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to

relief. See Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995), cert. denied, 516

U.S. 1158 (1996).

       “Where prison officials are so deliberately indifferent to the serious medical needs of

prisoners as to unnecessarily and wantonly inflict pain, they impose cruel and unusual punishment

in violation of the Eighth Amendment.” Horn by Parks v. Madison County Fiscal Court, 22 F.3d

653, 660 (6th Cir.), cert. denied, 513 U.S. 873 (1994) (citing Estelle v. Gamble, 429 U.S. 97, 104

(1976)). “‘Where a prisoner has received some medical attention and the dispute is over the

adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments

and to constitutionalize claims that sound in state tort law.’” Graham ex rel. Estate of Graham v.

County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004) (quoting Westlake v. Lucas, 537 F.2d 857,

860, n.5 (6th Cir. 1976)).

       McFarland challenges the medical personnel’s failure to treat his various illnesses and further

challenges the medical personnel’s refusal to issue documentation which would allow him to move

to a non-smoking unit. However, the record reflects that McFarland was housed in a non-smoking

unit during the relevant time period. Moreover, as the record reveals that McFarland has received

some medical attention and McFarland’s claims involve a mere difference of opinion between him

and medical personnel regarding his treatment, McFarland does not state a claim under the Eighth

Amendment. See Westlake, 537 F.2d at 860 n. 5.
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                                     -3-

For the foregoing reasons, we AFFIRM the district court’s judgment.
