                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 19 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CARL G. HACKER,

                Plaintiff-Appellant,

    v.                                                    No. 03-6197
                                                    (D.C. No. CV-02-577-C)
    WACKENHUT CORRECTIONAL                                (W.D. Okla.)
    FACILITY, Wackenhut Correctional
    Corporation; SANDRA ATWOOD,
    Medical Administrator Inmate Health
    Services; MARK FOGLE, Prison
    Doctor Inmate Health Services;
    DR. GREGSTON, Prison Doctor
    Inmate Health Services; JOHN DOE,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



*
      This order and judgment is not binding precedent, except under the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.
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.

       Plaintiff Carl Hacker, an Oklahoma state inmate proceeding pro se, appeals

the district court’s order adopting the magistrate judge’s report and

recommendation and granting summary judgment in favor of defendants. Plaintiff

filed a 42 U.S.C. § 1983 civil rights complaint alleging defendants    1
                                                                           were

deliberately indifferent to his serious medical needs in violation of the Eighth

Amendment. We construe plaintiff’s pleadings liberally,        Haines v. Kerner ,

404 U.S. 519, 520 (1972), and we affirm.

       The magistrate judge’s report and recommendation thoroughly and

accurately sets forth the facts, which we only briefly repeat here. Plaintiff alleges

he began experiencing lower back pain on December 20, 2000, after carrying

a food tray. He was evaluated by a prison nurse on January 6, 2001 and by prison

doctors on five occasions in January, February, and March, 2001. Prison doctors

recommended pain medication, which plaintiff refused. Plaintiff was taken to an

outside hospital for an orthopedic evaluation in May 2001. The prison failed to

get him to three hospital appointments on time, causing missed evaluations, but



1
      As noted by the magistrate judge, plaintiff named Wackenhut Correctional
Corporation as a defendant but did not serve it or assert any claims against it in
his complaint. We find no error in the district court’s dismissal of the complaint
against this defendant.

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took him to a rescheduled appointment in September 2001. An MRI was

performed in October 2001 and plaintiff was given numerous epidural steroid

injections and prescription medications for the next several months. The

consulting physician’s report recommended treatment of physical therapy and

prescription medications.

       In order for a plaintiff to succeed on a § 1983 claim for violation of the

Eighth Amendment, he must show that the deprivation is “sufficiently serious,”

and that the prison officials acted with “deliberate indifference” to the inmate’s

health and safety.   Penrod v. Zavaras , 94 F.3d 1399, 1405-06 (10th Cir. 1996)

(quotation omitted). Mere discomfort or temporary adverse conditions which

pose no risk to health and safety do not implicate the Eighth Amendment.      See

Hudson v. McMillian , 503 U.S. 1, 9 (1992). We review the grant of summary

judgment de novo, viewing the facts of the case in the light most favorable to the

plaintiff and giving him the benefit of every favorable inference.    Sealock v.

Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). “Summary judgment is

appropriate 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.”     Id.




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       Plaintiff contends defendants were deliberately indifferent to his medical

needs due to the delays in his treatment after his injury and the delays in the

hospital referral. He further contends defendants were deliberately indifferent to

his medical needs because they have denied him prompt access to elective back

surgery.

       We have reviewed the parties’ pleadings and briefs, the record on appeal,

the magistrate judge’s comprehensive report and recommendation, and the district

court’s order, and considered them in light of the applicable law. For the reasons

stated by the magistrate judge, we agree that plaintiff did not present any

evidence demonstrating that any delay in medical care resulted from deliberate

indifference to his medical needs, or that any delays caused him further injury or

resulted in substantial harm.     See Sealock , 218 F.3d at 1210-11 (holding that

“[d]elay in medical care only constitutes an Eighth Amendment violation where

the plaintiff can show that the delay resulted in substantial harm”). We further

agree with the district court that none of the medical records, treatment notes, or

other evidence in the record indicate that any physician has recommended back

surgery for plaintiff. Plaintiff’s belief that he needed back surgery is insufficient

to establish a constitutional violation.   See Estelle v. Gamble , 429 U.S. 97, 107

(1976) (“matter[s] for medical judgment” do not give rise to an Eighth

Amendment violation). Plaintiff has not met his evidentiary burden to support


                                            -4-
his claim that defendants were deliberately indifferent to his medical needs or

to his prescribed medical treatment.   Ledoux v. Davies , 961 F.2d 1536, 1537

(10th Cir. 1992).

       Appellant’s supplemental brief, construed as a motion to file a

supplemental brief, is granted. We AFFIRM the district court’s summary

judgment decision for substantially the same reasons articulated in the magistrate

judge’s May 27, 2003 Recommendation and the district court’s July 15, 2003

Order. The mandate shall issue forthwith.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




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