                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         July 2, 2009
                      UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
                            FOR THE TENTH CIRCUIT


    ALVIN PARKER,

                Plaintiff-Appellant,

    v.                                                    No. 08-6273
                                                  (D.C. No. 5:07-CV-00837-D)
    ALBINA GOSMANOVA, M.D.;                              (W.D. Okla.)
    OU MEDICAL CENTER;
    JESUS MEDINA, M.D.,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         In this civil rights action brought pursuant to 42 U.S.C. § 1983,

plaintiff-appellant Alvin Parker, an Oklahoma prisoner proceeding pro se, appeals

the district court’s orders granting summary judgment in favor of




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
defendants-appellees Oklahoma University Medical Center (Medical Center),

Albina Gosmanova, M.D., and Jesus Medina, M.D., on his claim that defendants

provided deficient medical care to him in violation of his Eighth Amendment

right to be free from cruel and unusual punishment. Mr. Parker is also appealing

the district court’s denials of his motion for leave to file a second amended

complaint and his request for appointment of an expert witness. Because we have

determined that this appeal is frivolous, we deny Mr. Parker’s motion for leave to

proceed on appeal without prepayment of fees, and we dismiss this appeal in

accordance with 28 U.S.C. § 1915(e)(2)(B)(i).

                                  I. Background.

      Mr. Parker is an inmate at the Dick Connor Correctional Center in Hominy,

Oklahoma. The magistrate judge accurately summarized the background of this

case as follows:

             Plaintiff states that he requested prison medical services for a
      swelling on the right side of his neck. The prison doctor ordered a
      thyroid scan and determined that the swelling was a solid vascular
      mass in the right lobe of Plaintiff’s thyroid gland. Because the
      prison doctor did not know the cause of the swelling, Plaintiff was
      referred to Defendant Gosmanova at the OU Medical Center.
      Defendant Gosmanova examined the swollen area and ordered a
      needle biopsy and another thyroid scan, both of which were
      inconclusive as to whether the mass was malignant. Defendant
      Gosmanova informed Plaintiff that the mass would have to be
      surgically removed for her to determine whether the mass was
      malignant. Plaintiff agreed, signed a consent form, and Defendant




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      Medina removed the mass. 1 Plaintiff states that on May 11, 2007, the
      prison doctor told him that the toxicology report showed that the
      swelling was a non-malignant, benign cyst.

R., Doc. 85 at 2 (citations to record omitted; footnote added).

                     II. Mr. Parker’s Arguments on Appeal.

      In his opening brief, Mr. Parker has asserted the following allegations in

support of his claim that defendants provided deficient medical care to him in

violation of his Eighth Amendment right to be free from cruel and unusual

punishment:

             In the case at bar, appellant desired to file a second amended
      complaint to allege “more particularized facts.” Particularly,
      appellant wanted to remove allegations of the first amended
      complaint that referenced Defendants’ failure to perform other less
      invasive tests as error. . . . Appellant’s rephrased claim was that the
      Defendants failed to treat a serious medical condition (appellant’s
      right thyroid mass) properly. This was in accordance with this
      Court’s recognition that a medical professional’s failure to treat a
      serious medical condition properly constitutes deliberate
      indifference. . . .

            Moreover, the rephrased facts clearly would entitle appellant
      to prevail on his Eighth Amendment claim where the allegations are
      evidence that the Defendants responded to an obvious risk with
      treatment that was patently unreasonable. . . .

              ....




1
       According to an affidavit signed by Dr. Medina, Mr. Parker’s “right thyroid
gland” was surgically removed in order to remove the vascular mass. See R.,
Doc. 70, Ex. 2 at 1, ¶ 3. This procedure is called a “right thyroid lobectomy.”
Id. at 2, ¶ 8.

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            [T]he disputed facts in this case, as rephrased, showed that
      Defendants[] failed to provide a course of treatment consistent with
      the symptoms they recognized.

             ....

            Because the results of the needle biopsy and thyroid scans
      were equivocal, the proper treatment for the symptoms recognized
      was the administration of thyroid hormone to observe whether the
      thyroid mass shrinks over the ensuing 6 to 12 months.

             ....

             In the case at bar, the undisputed facts showed that the
      Defendants ordered treatment (surgical removal of appellant’s
      thyroid mass) [that was] inconsistent with the symptoms presented
      (equivocal test results). . . . The requisite state of mind was met here
      because the Defendants did not provide a level of care consistent
      with the symptoms presented by the appellant.

             ....

             As shown above, if appellant proved through the testimony of
      [an] expert witness that a different course of treatment was not
      merely available, but was the treatment under prevailing professional
      norms for appellant’s symptoms, the evidence would establish
      deliberate indifference by the Defendants to appellant’s serious
      medical condition.

Aplt. Opening Br. at 3, 3a, 3b, 3c, 3d, 3g.

      As set forth below, we have concluded that these allegations are frivolous

because they lack an arguable basis in law and fact under the controlling Eighth

Amendment standards for prison medical care. As a result, we must deny




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Mr. Parker’s motion for leave to proceed on appeal without prepayment of fees,

and this appeal must be dismissed in accordance with 28 U.S.C. § 1915(e)(2)(B)(i).

                                   III. Analysis.

      “We review a grant of summary judgment de novo, applying the same

standard as the district court.” McKnight v. Kimberly Clark Corp., 149 F.3d

1125, 1128 (10th Cir. 1998). The controlling standard is set forth in Federal Rule

Civil Procedure 56(c), which provides that summary judgment “should be

rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” In applying this standard, “we

examine the factual record and reasonable inferences therefrom in the light most

favorable to the party opposing the motion.” McKnight, 149 F.3d at 1128

(quotation omitted). Because Mr. Parker is proceeding pro se, we also liberally

construe his pleadings and hold them to a less stringent standard than formal

pleadings drafted by lawyers. See Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005).

      The Eighth Amendment creates an obligation on the part of prison officials

to provide adequate health care to inmates. Estelle v. Gamble, 429 U.S. 97, 103

(1976). But a mere “complaint that a prison physician has been negligent in

diagnosing or treating a medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment.” Id. at 106. Likewise, a “prisoner

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who merely disagrees with a diagnosis or a prescribed course of treatment does

not state a constitutional violation.” Perkins v. Kansas Dep’t of Corr., 165 F.3d

803, 811 (10th Cir. 1999). Instead, to establish an Eighth Amendment violation

based on deficient medical care, “a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.”

Estelle, 429 U.S. at 106.

      In the context of prison medical care, the deliberate indifference standard

“involves both an objective and a subjective component.” Mata v. Saiz, 427 F.3d

745, 751 (10th Cir. 2005) (quotation omitted). To satisfy the objective

component, a prisoner must show that the harm suffered is “sufficiently serious”

to implicate the Cruel and Unusual Punishment Clause. Farmer v. Brennan,

511 U.S. 825, 834 (1994) (quotation omitted). To satisfy the subjective

component, a prisoner must “present evidence of the prison official’s culpable

state of mind.” Mata, 427 F.3d at 751. Specifically, the prisoner must show that

the official “[knew] of and disregard[ed] an excessive risk to inmate health or

safety.” Id. This standard is “akin to recklessness in the criminal law,” and it

requires a conscious disregard of a substantial risk of serious harm. Self v. Crum,

439 F.3d 1227, 1231 (10th Cir. 2006) (quotation omitted). We have also

recognized, however, that “a jury may infer conscious disregard” when a prison

doctor “responds to an obvious risk with treatment that is patently unreasonable.”

Id. at 1232. Nonetheless, “the subjective component presents a high evidentiary

                                         -6-
hurdle to [prisoners],” and it “is not satisfied, absent an extraordinary degree of

neglect, where a doctor merely exercises his considered medical judgment.” Id.

      Before proceeding to the merits of Mr. Parker’s Eighth Amendment claim,

we note that the Medical Center and the individual doctors, as employees of the

Medical Center, are subject to liability under § 1983 for the Eighth Amendment

violation alleged in this case, either as independent state actors for a state

university, or because the Medical Center contracted with the State of Oklahoma

to provide medical care to state prisoners such as Mr. Parker, see West v. Atkins,

487 U.S. 42, 54-57 (1988) (holding that a private doctor treating prisoners under a

contract with state prison authorities acted under color of state law for purposes

of § 1983 suit alleging Eighth Amendment violation). But we also note that the

Medical Center cannot be held liable under § 1983 based on the doctrine of

respondeat superior. See Brammer-Hoelter v. Twin Peaks Charter Acad.,

492 F.3d 1192, 1211 (10th Cir. 2007) (“It is true that § 1983 liability for an entity

cannot be predicated on respondeat superior.”). Instead, Mr. Parker must

establish the Medical Center’s independent liability based on a wrongful policy or

custom. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). Further,

the Medical Center “may not be held liable [under § 1983 if] there was no

underlying constitutional violation by any of its [employees].” Id.




                                          -7-
      With regard to Mr. Parker’s claims against the individual doctors, the

district court concluded that Mr. Parker’s allegations and evidence fell short of

establishing an Eighth Amendment violation, reasoning as follows:

             Plaintiff also objects to [the magistrate judge’s] conclusion
      that he has failed to establish a genuine dispute of material fact
      pertinent to the issue whether his treating physicians were
      deliberately indifferent to serious medical needs. Plaintiff argues
      that “prevailing professional norms” dictated a different course of
      treatment and that a resort to surgery was premature. Plaintiff
      presents evidence that other physicians would have recommended . . .
      the administration of thyroid hormone and continued observation of
      the thyroid nodule before determining whether surgery was
      necessary.

             On the other hand, Dr. Gosmanova, who is board certified in
      internal medicine and a fellow in endocrinology, has testified why
      removal of Plaintiff’s thyroid nodule was consistent with “the
      overwhelming recommendation of [her] practice.” Similarly,
      Dr. Medina, who has a fellowship in head and neck oncology surgery
      and is a professor of otorhinolaryngology at the Oklahoma University
      Health Sciences Center, has testified that Dr. Gosmanova’s
      “diagnosis and referral for surgery were appropriate, and well within
      the standard of care for a physician” and that “the operation
      performed was a necessary operation in order to determine if cancer
      did exist[].” Regardless whether the opinions of Dr. Gosmanova and
      Dr. Medina are medically correct, the evidence is undisputed that
      Plaintiff’s treating physicians exercised their professional judgment
      in deciding to proceed with a right thyroid lobectomy. Assuming an
      error in judgment occurred, even a serious one, Plaintiff’s proof
      would not amount to a constitutional claim of medical mistreatment.

             In short, the Court fully concurs in [the magistrate judge’s]
      conclusion that there is no evidence to suggest Dr. Gosmanova and
      Dr. Medina consciously disregarded a substantial risk of harm to
      Plaintiff’s health. Therefore, Plaintiff cannot establish an Eighth
      Amendment claim under the standard of Estelle v. Gamble, 429 U.S.
      97 (1976), and its progeny.


                                         -8-
R., Doc. 87 at 3 (citations to record omitted; second alteration in original).

      We agree with the district court that Mr. Parker failed to establish a

genuine issue of material fact for trial under the subjective prong of the deliberate

indifference standard. In fact, we conclude that Mr. Parker’s claim that the

individual doctors acted with a culpable state of mind in violation of the Eighth

Amendment lacks an arguable basis in law and fact and is therefore frivolous for

purposes of 28 U.S.C. § 1915(e)(2)(B)(i). See Neitzke v. Williams, 490 U.S. 319,

325 (1989) (stating that a claim is frivolous under § 1915 if it “lacks an arguable

basis either in law or in fact”).

      As set forth above, Mr. Parker claims that the doctors misdiagnosed the risk

arising from his thyroid mass, and that, as a result, they provided improper and

overly-invasive treatment when they recommended surgery. But our cases

unequivocally establish that “a misdiagnosis, even if rising to the level of medical

malpractice, is simply insufficient . . . to satisfy the subjective component of a

deliberate indifference claim.” Self, 439 F.3d at 1234. Indeed, in Self, we

specifically explained that if a prisoner has symptoms that could suggest either a

cancerous condition or a non-cancerous condition, “and the [prison] doctor

mistakenly treats [the condition as non-cancerous], the doctor’s culpable state of

mind is not established even if the doctor’s medical judgment may have been

objectively unreasonable.” Id. Conversely, there surely is no deliberate

indifference when, as occurred in this case, the medical professionals err on the

                                          -9-
cancer side of the equation out of an abundance of caution. Further, an inference

of deliberate indifference cannot be based on the type of treatment provided to

Mr. Parker because there is simply no basis for concluding that recommending

surgery was “patently unreasonable” as our cases require. See Self, 439 F.3d at

1232. Moreover, as explained by the district court, even if “Plaintiff [could]

prove [that] a different course of treatment was available and would have been

recommended by other medical professionals, this evidence would not establish

‘deliberate indifference’ by Dr. Gosmanova and Dr. Medina.” R., Doc. 87 at 4.

      Given our disposition under the subjective component of the deliberate

indifference standard, we do not need to discuss the objective component. In

addition, because there is no Eighth Amendment liability for the individual

doctors, we do not need to separately discuss the liability of the Medical Center.

      Finally, we see no abuse of discretion by the district court in denying

Mr. Parker’s motion for leave to file a second amended complaint and his request

for appointment of an expert witness. In light of the undisputed facts regarding

the comprehensive medical treatment that defendants provided to Mr. Parker, and

the frivolous nature of Mr. Parker’s allegations regarding the individual doctors’

state of mind, it would clearly have been futile to allow an amendment or to

appoint an expert.




                                        -10-
      Because Mr. Parker’s Eighth Amendment claim and this appeal are

frivolous, we DENY his motion for leave to proceed on appeal without

prepayment of fees, and we DISMISS this appeal in accordance with 28 U.S.C.

§ 1915(e)(2)(B)(i). We remind Mr. Parker of his obligation to make immediate

payment of the remaining balance of the appellate filing fee, which is currently

$363.53. We also note that this dismissal counts as a strike for purposes of

28 U.S.C. § 1915(g).


                                                    Entered for the Court


                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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