                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                      November 20, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JOSEPH RASCÓN,

      Plaintiff - Appellant,

v.                                                         No. 16-2251
                                               (D.C. No. 2:15-CV-00067-MV-GJF)
DONALD DOUGLAS; MAUREEN                                     (D. N.M.)
BIXENMAN; LISA STABER, CORIZON
MEDICAL CORP.;

      Defendants - Appellees,

and

LEA COUNTY CORRECTIONAL
FACILITY; V. KEELING; G.E.O.
GROUP INC.; FNU ELIZANDRO; FNU
ALVARADO; FNU RESENDEZ; FNU
HILL; FNU COOPER; FNU
BALDANADO; VALERIE NEAGLE;
JERRY ROARK,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MATHESON, Circuit Judges.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                        _________________________________

      Joseph Rascón, a New Mexico prisoner proceeding pro se, appeals the district

court’s orders granting motions for dismissal and summary judgment on his claims of

cruel and unusual punishment in violation of the Eighth Amendment. He requests

leave to proceed on appeal in forma pauperis (IFP). Exercising jurisdiction under

28 U.S.C. § 1291, we grant the IFP motion and affirm.

                                   I. BACKGROUND

      Mr. Rascón is incarcerated at the Lea County Correctional Facility (LCCF) in

Hobbs, New Mexico. He suffers from painful arthritis and degenerative bone

disease, for which he was given morphine. He was scheduled to have bilateral hip-

replacement surgery in February 2014, but he refused. Consequently, his pain

medication was changed from morphine to other drugs. He was placed in a medical-

observation cell to monitor his withdrawal from morphine and receive drugs for

morphine withdrawal and pain. Mr. Rascón alleged that the substitute drugs did not

alleviate his pain and he was forced to sleep on the cell’s steel-slab bed without a

mattress for four nights.

      After exhausting the prison grievance procedures, see 42 U.S.C. § 1997e(a),

Mr. Rascón filed suit under 42 U.S.C. § 1983 claiming the four-night lack of a

mattress and the change in his medication constituted cruel and unusual punishment.

He further alleged that he was denied morphine and placed in the medical-

observation cell in retaliation for refusing the surgery.



                                            2
      The district court examined the complaint under 28 U.S.C. § 1915(e)(2) and

Fed. R. Civ. P. 12(b)(6). It ruled the complaint failed to state a claim against

defendants Corizon Medical Corp., G.E.O. Group Inc., Keeling, Elizandro, Alvarado,

Resendez, Hill, Cooper, Baldanado, Neagle, and Roark. The court said the

supervisory defendants could not be held vicariously liable under the doctrine of

respondeat superior, and the complaint did not allege the requisite personal

involvement by the individual defendants. It ordered the remaining three defendants,

Dr. Staber, the Regional Medical Director for Corizon; Ms. Bixenman, a physician’s

assistant; and Mr. Douglas, the Health Services Administrator,1 to file a Martinez

report, see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), to “identify and clarify

the issues plaintiff raise[d] in his complaint,” Hall v. Bellmon, 935 F.2d 1106, 1112

(10th Cir. 1991).

      After filing the Martinez report, the remaining three defendants moved for

summary judgment. The district court granted the summary judgment motion and

denied Mr. Rascón’s motion to alter or amend the judgment. Mr. Rascón appeals the

order dismissing Corizon for failure to state a claim and the summary judgment

granted to Dr. Staber, Ms. Bixenman, and Mr. Douglas.




      1
        Corizon, a private health-care provider, contracted to provide services to
LCCF prisoners. During the relevant time period, Dr. Staber, Ms. Bixenman, and
Mr. Douglas were employed by Corizon. The defendants do not contest that they
acted under color of state law for § 1983 purposes.

                                           3
                                      II. DISCUSSION

                                   A. Standard of Review

       We review de novo the district court’s dismissal under Rule 12(b)(6) for

failure to state a claim. Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878

(10th Cir. 2017). We will affirm the dismissal if the complaint does not “contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

omitted).

       We also review de novo the district court’s grant of summary judgment,

viewing the evidence and drawing all reasonable inferences in favor of Mr. Rascón as

the nonmoving party. Foster v. Mountain Coal Co., 830 F.3d 1178, 1186 (10th Cir.

2016). “The court shall grant summary judgment if the movant shows 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). “A fact is material only if it might affect the

outcome of the suit under the governing law. And a dispute over a material fact is

genuine only if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Foster, 830 F.3d at 1186 (internal quotation marks omitted).

       We liberally view Mr. Rascón’s pro se filings. See Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, “take on

the responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Id. Moreover, “pro se parties [must] follow the same rules of

procedure that govern other litigants.” Id. (internal quotation marks omitted).

                                             4
                                 B. Dismissal of Corizon

      Mr. Rascón challenges the order dismissing Corizon. He contends Corizon is

vicariously liable for injuries inflicted by its employees. But “vicarious liability is

inapplicable to . . . § 1983 suits.” Iqbal, 556 U.S. at 676. The district court properly

dismissed this claim.2

                             C. Tort Theories Not Applicable

      In asserting the defendants are liable for his suffering, Mr. Rascón invokes

several tort theories, such as res ipsa loquitur, the borrowed-servant doctrine, medical

negligence, a duty of ordinary care, a hospital’s negligent credentialing of staff

physicians, a physician’s abandonment of her patient, medical malpractice, and the

“dual capacity doctrine” of medical malpractice. But the standard of care in Eighth

Amendment prisoner conditions-of-confinement cases brought under § 1983 is

deliberate indifference, not negligence. See Estelle v. Gamble, 429 U.S. 97, 104

(1976) (holding an Eighth Amendment conditions-of-confinement claim requires an

inmate to show that there has been deliberate indifference to his serious medical

needs). This is “why res ipsa loquitur [and other tort theories] do[] not apply.”

Clark-Murphy v. Foreback, 439 F.3d 280, 286 (6th Cir. 2006) (citing Sweeney v.

      2
         In his reply brief, Mr. Rascón argues that other defendants are also
vicariously liable. Although we generally do not address arguments presented for the
first time in a reply brief, see Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012)
(“Arguments not clearly made in a party’s opening brief are deemed waived.”), these
other defendants also cannot be held vicariously liable under § 1983. See Iqbal, 556
U.S. at 676. We do not address Mr. Rascón’s claims raised for the first time in his
reply brief concerning the denial of a temporary restraining order, his need for a
wheelchair, or his attempt to invoke the Americans with Disabilities Act.

                                            5
Erving, 228 U.S. 233 (1913)). Legal theories applicable to criminal law are also not

applicable, such as Mr. Rascón’s arguments for applying ignorance or mistake of law

and refusal of a mistake-of-fact jury instruction in a child-abuse case.

               D. Deliberate Indifference – Discontinuation of Morphine

      We turn to Mr. Rascón’s argument that the discontinuation of morphine

violated the Eighth Amendment.

1. Legal background

       “A prison official’s deliberate indifference to an inmate’s serious medical

needs is a violation of the Eighth Amendment’s prohibition against cruel and unusual

punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). Deliberate

indifference involves both an objective and a subjective component. Id. The

objective component is met if the deprivation is sufficiently serious. Id. The parties

do not dispute that Mr. Rascón’s arthritis and degenerative bone disease were

sufficiently serious to satisfy the objective component. Consequently, we evaluate

only the subjective component. See Self v. Crum, 439 F.3d 1227, 1233 (10th Cir.

2006) (analyzing only the subjective component where the parties agreed the

objective component was met).

      To satisfy the subjective component, the plaintiff must “present evidence of

the prison official’s culpable state of mind.” Mata, 427 F.3d at 751. An official will

not be held responsible unless he “knows of and disregards an excessive risk to

inmate health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must

                                           6
also draw the inference.” Self, 439 F.3d at 1231 (internal quotation marks omitted).

An official may be liable if he knew the prisoner “faced a substantial risk of harm

and disregarded that risk by failing to take reasonable measures to abate it.” Hunt v.

Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (internal quotation marks omitted).

      Our cases recognize two ways to show the subjective component. “First, a

medical professional may fail to treat a serious medical condition properly,” and

second, a prison official may act as a gatekeeper and “prevent an inmate from

receiving treatment or deny him access to medical personnel capable of evaluating

the need for treatment.” Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000).

In either case, the “inadvertent failure to provide adequate medical care,” which is

tantamount to negligence, does not satisfy the deliberate indifference standard.

Estelle, 429 U.S. at 105-06.

2. Analysis

      In her affidavit, Dr. Staber explained that Mr. Rascón was prescribed morphine

to provide short-term pain relief until undergoing his hip-replacement surgery.

Morphine was not prescribed for long-term treatment. She stated that one of

morphine’s common side effects is psychological and physical addiction, and there is

an increased risk of abuse, misuse, and diversion of such drugs in the prison setting.

Mr. Rascón also received Norco for pain during a brief period before his scheduled

surgery.

      After Mr. Rascón refused the surgery, Dr. Staber determined as the proper

medical course that his medication should be changed from morphine and Norco to

                                           7
non-narcotic pain relievers. She directed Mr. Rascón to be placed in a medical-

observation cell so his condition could be monitored. While there, Mr. Rascón was

administered medications to alleviate the side effects of morphine withdrawal as well

as pain. Dr. Staber stated that during this time she was not at the prison. After she

directed Mr. Rascón’s placement in a medical-observation cell with appropriate

medications and monitoring, she had no further involvement, though she remained

available to address any emergency situation.

        Physician’s Assistant Bixenman also filed an affidavit. She described

Mr. Rascón’s medication and treatment, which was similar to Dr. Staber’s

description. She implemented the Corizon medication protocol for withdrawal from

morphine and administered various drugs for withdrawal, pain, and nausea. She

monitored Mr. Rascón’s vital signs daily, except for his second day in the medical-

observation cell when the corrections officer on duty could not find the keys to his

cell.

        In his affidavit, Mr. Douglas explained that as the Health Services

Administrator at LCCF, his duties were administrative and organizational rather than

providing medical treatment. He was therefore not involved in the decisions to

withdraw Mr. Rascón’s morphine or to place him in a medical-observation cell.

        Mr. Rascón’s responses to these affidavits lack merit.

        First, he says a different prison doctor, Dr. Birnbaum, later reinstated his

treatment with morphine on July 18, 2016, twenty-nine months after Dr. Staber decided

to withdraw the morphine, thus proving that Dr. Staber’s decision to withdraw

                                             8
morphine was wrong. Even if a different medical decision made almost two and

one-half years after the original decision showed a disagreement about treatment, “[i]t is

well established that a difference of opinion between two doctors is insufficient to

survive summary judgment on a deliberate-indifference claim,” Zaya v. Sood, 836

F.3d 800, 803 (7th Cir. 2016). Moreover, Mr. Rascón’s disagreement with

Dr. Staber’s treatment decisions does not state an Eighth Amendment claim.

“Disagreement with a doctor’s particular method of treatment, without more, does

not rise to the level of an Eighth Amendment violation.” Gee v. Pacheco, 627 F.3d

1178, 1192 (10th Cir. 2010)

       Second, Mr. Rascón asserts that Dr. Staber’s decision to prescribe Norco in

place of morphine demonstrated her intent to force him to have the surgery because

morphine withdrawal would cause him duress. He claims Officer Resendez, a guard

at LCCF, told him that this was the plan. But Officer Resendez’s statement does not

support this argument. It said only that he saw Mr. Rascón without a mattress in the

medical-observation cell.

       Third, Mr. Rascón complains that Ms. Bixenman originally signed his refusal-

of-surgery form as a witness and that her signature was subsequently crossed out as

an error. See R. Doc. 12, at 6. He asserts this shows Ms. Bixenman committed

perjury, but he does not explain how crossing off her name on the form is evidence of

deliberate indifference. Mr. Rascón also relies on the surgery-refusal form to allege

Mr. Douglas “attempted fraud to break (morphene) acceptance for pain.” [sic] Aplt.

Opening Br. at 21; see also Aplt. Reply Br. at 29 (“Mr. Douglas forged a pain-

                                             9
medication refusal form in order to minimize denial of mattress.”). Again, the

surgery-refusal form does not permit the inference that Mr. Douglas was deliberately

indifferent. Moreover, Mr. Douglas did not sign the form.

       Based on the foregoing, we determine that Mr. Rascón raised no genuine issue

of material fact that Dr. Staber, Ms. Bixenman, or Mr. Douglas were deliberately

indifferent to his serious medical needs. The district court properly granted summary

judgment in their favor.

                   E. Condition of Confinement – Lack of Mattress

       Placement in the medical-observation cell to discontinue Mr. Rascón’s

morphine was based on Dr. Staber’s medical judgment and raises no Eighth

Amendment concern. Mr. Rascón further alleges that requiring him to spend four

nights in the medical-observation cell without a mattress violated the Eighth

Amendment. Mr. Rascón has not cited, and we have not found, a case holding that

absence of a mattress in the circumstances presented here rises to an Eighth

Amendment violation. Even if Mr. Rascón could make a colorable claim, the

absence of clearly established law and the doctrine of qualified immunity preclude

liability.

1. Legal Background

             Prison officials are required to insure that inmates receive
       adequate food, clothing, shelter and medical care. An inmate making an
       Eighth Amendment claim for constitutionally inadequate conditions of
       confinement must allege and prove an objective component and
       subjective component associated with the deficiency. The objective
       component requires conditions sufficiently serious so as to deprive
       inmates of the minimal civilized measure of life’s necessities.

                                          10
      Alternatively, a condition must be sufficiently serious so as [to]
      constitute a substantial risk of serious harm. The subjective component
      requires that a defendant prison official have a culpable state of mind,
      that he or she acts or fails to act with deliberate indifference to inmate
      health and safety.

Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (citations and internal

quotation marks omitted).

      Qualified immunity “shields public officials from damages actions unless their

conduct was unreasonable in light of clearly established law.” Henderson v. Glanz,

813 F.3d 938, 951 (10th Cir. 2015) (ellipsis and internal quotation marks omitted).

Generally, “in order for the law to be clearly established, there must be a Supreme

Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts must have found the law to be as the plaintiff maintains.”

Id. (internal quotation marks omitted).

2. Analysis

      We have found no case, and Mr. Rascón has not provided one, holding that

denying a prisoner a mattress under the circumstances alleged here satisfies the

objective component of an Eighth Amendment claim. Although lack of bedding in

combination with other deprivations could state an Eighth Amendment violation, see

Mitchell v. Maynard, 80 F.3d 1433, 1443 (10th Cir. 1996) (holding an Eighth

Amendment violation could be established by “lack of heat combined with the lack

of clothing and bedding, the deprivation of exercise for an extensive period of time,

the lack of hot water, the denial of toilet paper, the removal of his prescription



                                           11
eyeglasses, the lack of adequate ventilation and the denial of writing utensils”),3 the

conditions alleged in Gregory v. Wyse, 512 F.2d 378, 380, 382 (10th Cir. 1975), did

not amount to cruel and unusual punishment—confinement for at least ten days in a

small cell with only a cement slab for a bed, no bedding, a light in the cell on at all

times, two meals per day, and one shower per week. Similarly, in an unpublished

opinion this court held that allegations that a prisoner was held for four nights and

five days in a stripped basement intake cell with minimal clothing and bedding, no

personal hygiene items, and no cleaning supplies for the cell was not a constitutional

violation. Estrada v. Kruse, 38 F. App’x 498, 498-99 (10th Cir. 2002).

      We also have found no Supreme Court authority on point. Nor can we

conclude that the weight of authority from other circuit courts supports Mr. Rascón’s

claim.4 Other circuits have held that a lack of an adequate mattress in combination


      3
         See also Brewer v. Gilroy, 625 F. App’x 827, 834 (10th Cir. 2015) (stating
the following conditions might support an Eighth Amendment claim: prison
personnel “placed [the prisoner] in unlit cells that smelled of urine, feces, or sewage,
and refused to give him a mattress, bedroll, or adequate food and water; . . . he was
denied food entirely for seven days [and], at other times, prison employees threw
food into his cell so that he would have to eat off the floor”); Allen v. Avance,
491 F. App’x 1, 4-5 (10th Cir. 2012) (holding objective component was met by
prisoner’s claims that he was locked in the county jail “drunk tank” for two periods—
once for seven days and again for four days—in standing water for part of the time,
without any bedding, mattress, or toiletries, and was denied his legal papers, personal
property, access to the commissary, and visitation). Although not precedential, we
find the reasoning of the unpublished cases cited in this order and judgment to be
instructive. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential,
but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1(a).
      4
         See Chappell v. Mandeville, 706 F.3d 1052, 1057 (9th Cir. 2013) (holding
that the law was not clearly established that either of the conditions of which the
                                                                             (continued)
                                           12
with other deprivations may state an Eighth Amendment claim, but under worse

conditions than those presented here.5

      In addition to lack of a mattress for four nights, Mr. Rascón experienced

morphine withdrawal and arthritis pain. These additional conditions do not appear to


prisoner complained—24-hour lighting and mattress deprivation for six nights—
violated the Eighth Amendment); O’Leary v. Iowa State Men’s Reformatory, 79 F.3d
82, 84 (8th Cir. 1996) (requiring a prisoner to sleep on a concrete slab for four days
did not violate the Eighth Amendment); Johnson v. Pelker, 891 F.2d 136, 138-39 (7th
Cir. 1989) (holding prisoner’s wet clothing and mattress, which required him to sleep
on a slab of metal for two and one-half days was disquieting, but a temporary
inconvenience not compounded by other deprivations, so did not rise to the level of
an Eighth Amendment violation).
      5
         See, e.g., Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013) (holding the
following prison conditions plausibly alleged an Eighth Amendment claim: “for
approximately twenty-eight months, he was confined in a cell with five other men,
with inadequate space and ventilation, stifling heat in the summer and freezing cold
in the winter, unsanitary conditions, including urine and feces splattered on the floor,
insufficient cleaning supplies, a mattress too narrow for him to lie on flat, and noisy,
crowded conditions that made sleep difficult and placed him at constant risk of
violence and serious harm from cellmates”); Budd v. Motley, 711 F.3d 840, 842 (7th
Cir. 2013) (holding allegations of poor sanitation and hygiene, a lack of heat and
bedding, blocked ventilation, overcrowding, and inadequate recreation stated a valid
conditions-of-confinement claim); Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir.
1999) (holding the following conditions constituted a denial of humane conditions of
confinement: “overnight outdoor confinement [for 17 hours] with no shelter, jacket,
blanket, or source of heat as the temperature dropped and the wind blew[,] along with
the total lack of bathroom facilities for forty-nine inmates sharing a small bounded
area”); Williams v. Benjamin, 77 F.3d 756, 764, 768 (4th Cir. 1996) (reversing
summary judgment in favor of prison personnel on prisoner’s claim that he was
maced and confined in four-point restraints on a bare steel bed frame for more than
eight hours, denied his request to wash himself, and not permitted to use a toilet or
receive medical attention); Goodson v. City of Atlanta, 763 F.2d 1381, 1387
(11th Cir. 1985) (upholding prisoner’s claim of cruel and unusual punishment for
“inedible food, no blanket or bedding, no sanitation, inadequate medical care, [and]
no shelter from the elements other than a concrete cell with broken windows
permitting the passage of cold air”).

                                          13
place this case under the precedents finding Eighth Amendment violations, but even

if the combination of circumstances could arguably make out a violation, it would not

find support in clearly established law to overcome qualified immunity for the

defendants. Consequently, we affirm the grant of summary judgment on the

conditions-of-confinement claim.

                                      F. Retaliation

      Mr. Rascón alleges that the defendants withdrew the morphine and placed him

in the cell without a mattress in retaliation for refusing the hip-replacement surgery.

1. Governing law

      Prison officials may not retaliate against an inmate for exercising his

constitutional rights. Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). A

plaintiff must establish that “but for” the retaliatory motive, the complained-of action

would not have taken place. Id. “An inmate claiming retaliation must allege specific

facts showing retaliation because of the exercise of the prisoner’s constitutional

rights.” Id. (internal quotation marks omitted).

2. Analysis

      Mr. Rascón did not specify the constitutional right at stake, but assuming his

refusal of the surgery is protected activity, he has adduced no evidence that his

refusal was the “but for” reason the morphine was withdrawn and he was placed in a

medical-observation cell without a mattress. As discussed above, Dr. Staber would

have replaced the morphine with other drugs whether or not Mr. Rascón underwent

the surgery because, in Dr. Staber’s medical judgment, morphine was not an

                                           14
appropriate long-term treatment. And Mr. Rascón has not shown that any of the

defendants were even capable of retaliation because he has not shown they had the

authority to withhold a mattress from the medical-observation cell. Thus,

Mr. Rascón has not shown that the defendants’ alleged retaliatory motives were the

“but for” cause of their actions. Accordingly, we conclude that the district court

properly granted summary judgment against Mr. Rascón on his retaliation claim.

                                  III. CONCLUSION

      We affirm the district court’s judgment. We grant Mr. Rascón’s application to

proceed IFP and remind him that he is obligated to continue making partial payments

until the entire filing fee has been paid. Mr. Rascón’s opening and reply briefs

contain several arguments styled as motions. We deny the motions but we have

considered them as part of the opening brief.


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




                                          15
