                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          SEP 10 2003
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 ROBERT E. MARKS,

               Plaintiff-Appellant,                     No. 03-3111
          v.                                    (D.C. No. 02-CV-3077-GTV)
 STATE OF KANSAS; CHARLES E.                             (D. Kansas)
 SIMMONS, Secretary of Corrections;
 EMMALEE CONOVER, Warden,
 JULIE UTT, Deputy Warden;
 GEORGIA PURSLEY, Unit Team
 Manager, and MARY SLOCUMBE,
 PHS Nurse,

               Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before EBEL , HENRY , and HARTZ , Circuit Judges.


      Plaintiff Robert E. Marks, a former state prisoner appearing pro se, brought

this 42 U.S.C. § 1983 action against the State of Kansas and various state


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). 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 This order and judgment is not binding precedent, except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.
officials and employees, asserting claims based on events that occurred in

connection with his transfer from one prison facility to another. The district court

found that Plaintiff’s claims did not implicate constitutionally protected interests

and thus were not cognizable under 42 U.S.C. § 1983. Accordingly, it dismissed

his complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon

which relief can be granted. It also rejected Plaintiff’s request for appointment of

counsel because Plaintiff “presented no claim of constitutional dimension.”

Marks v. Kansas, No. 02-3077-GTV, slip. op. at 2 (D. Kan. Mar. 17, 2003).

      Despite Plaintiff’s general statement that the district court incorrectly

decided “[a]ll the facts contained in the complaint,” Aplt. Br. at 4, and his general

request that this court “review all the facts contained in [his] complaint,” id.,

Plaintiff challenges on appeal only two of the district court’s rulings—its

dismissal of his Eighth Amendment claim, and its denial of his request for

appointment of counsel. We therefore discuss only those rulings.

      Plaintiff’s complaint alleges that shortly after having been transferred on

August 22, 2001, he “submitted [a] medical request form to see the [prison’s]

doctor, to inquire about his work status.” R., Doc. 1 at 3. For approximately one

month thereafter, Plaintiff alleges, he was not assigned work and was “not . . .

seen by the doctor or any medical staff as to whether or not he was able to return

to work status.” R., Doc. 1 at 3. On the morning of September 19, 2001,


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however, a prison official awakened Plaintiff and ordered him to go to the

prison’s gym. When he asked why, he was told that he might be needed to “set-

up some tables.” R., Doc. 1 at 4. Plaintiff responded that he had not been

assigned that job, and in any event, he should not perform such work on account

of his medical condition. The prison officer then left Plaintiff’s cell.

         When the officer returned, he explained that Plaintiff did not have a “lay-

in” issued by prison medical officials and thus would not be excused from his

work assignments. Plaintiff twice asked to speak with a prison nurse but was

denied. Instead, he was directed to complete a medical request form. Plaintiff

submitted the form and was allowed to consult with medical officials two days

later.

         In its analysis of Plaintiff’s complaints, the district court acknowledged that

a prison’s failure to provide one of its inmates with medical care can amount to

an Eighth Amendment violation if it results from “deliberate indifference to a

prisoner’s serious medical needs.” Marks, No. 02-3077-GTV at 4 (internal

quotation marks omitted). It concluded, however, that Plaintiff had failed to

“identif[y] . . . such circumstances.” Id.

         On appeal Plaintiff contends that the district court erroneously based its

Eighth Amendment ruling on the effects of his not receiving medical treatment

(i.e. his job assignment) rather than the failure to treat itself. He asserts that the


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failure to treat is in fact the basis of his Eighth Amendment claim. To support that

theory he references specifically his requests for “medical status reviews,” and

Defendants’ failure to provide him with “medical attention for his serious illness

for 30 days.” Aplt. Br. at 3-e. (The “medical attention” that Plaintiff refers to

appears to be the work-restriction consultation that he initially referred to in his

complaint.) He states that when he did “receive[] medical attention, it was

impersonal[,] he never actually saw a health care professional, [and] his treatment

was simply to give him the work restrictions he [previously] had.” Id. He also

states that prison officials were deliberately indifferent to his medical needs when

they responded to his refusal to report for work with discipline rather than

concern. He contends that these allegations were enough to state an Eighth

Amendment claim and to require appointment of counsel.

      “We review de novo the district court’s decision to dismiss a complaint

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Gaines v.

Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). In conducting such review, we

must keep in mind that a pro se litigant’s complaint is construed liberally, see id.,

and will be dismissed “for failure to state a claim . . . only where it is obvious that

the plaintiff cannot prevail on the facts he has alleged and it would be futile to

give him an opportunity to amend,” id. The denial of a litigant’s request for

appointment of counsel in a civil case, however, is reviewed for an abuse of


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discretion. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

      “A prison official violates an inmate’s clearly established Eighth

Amendment rights if he acts with deliberate indifference to an inmate’s serious

medical needs—if he knows of and disregards an excessive risk to inmate health or

safety.” Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001) (internal

quotation marks omitted). “[A] delay in medical care only constitutes an Eighth

Amendment violation where the plaintiff can show that the delay resulted in

substantial harm.” Id. at 950 (internal quotation marks omitted). Substantial harm

is a “lifelong handicap, permanent loss, or considerable pain.” Id.

      Plaintiff’s complaint fails to allege the nature of his medical need or that

any delay in treatment caused him substantial harm. In light of these deficiencies,

we think “it is obvious that . . . [P]laintiff cannot prevail on the facts he has

alleged . . . .” Gaines, 292 F.3d at 1224. Because Plaintiff has not stated an

Eighth Amendment claim or challenged the district court’s rulings with respect to

his other claims, we conclude that Plaintiff’s complaint was properly dismissed

under 28 U.S.C. § 1915(e)(2)(B)(ii). For the same reason, the district court did

not abuse its discretion in refusing to appoint counsel. We note that Plaintiff did

not seek to amend his complaint below and has not suggested on appeal that he

could amend the complaint to state a proper cause of action.


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We AFFIRM the district court’s order of March 17, 2003.

                              ENTERED FOR THE COURT


                              Harris L Hartz
                              Circuit Judge




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