                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                         April 12, 2011
                          FOR THE TENTH CIRCUIT      Elisabeth A. Shumaker
                                                         Clerk of Court


KARL GRANT LOSEE,

            Plaintiff-Appellant,

v.                                              No. 10-4177
                                        (D.C. No. 2:07-CV-00911-DB)
RICHARD GARDEN, Director of                       (D. Utah)
Medical Service, Utah State Prison;
SIDNEY ROBERTS, Medical Doctor,
Utah State Prison; KENNON TUBBS,
Medical Doctor, Utah State Prison;

            Defendants-Appellees,
and

TOM PATTERSON, Executive
Director of Services, Utah State
Prison; NANCY HOWARD, Critical
Care Nurse, Utah State Prison; JON
HUNTSMAN, Jr., Governor; JACK
FORD, Director of Public Affairs,
Utah State Prison; GERALD
DEARING, Physicians Assistant, Utah
State Prison; STEVEN TURLEY,
Warden, Utah State Prison; ART
ADCOCK, Registered Nurse, Utah
State Prison; BILLIE CASPER,
Grievance Coordinator, Utah State
Prison; TOM ANDERSON, Grievance
Coordinator, Utah State Prison; FNU
JENSEN, Officer, Utah State Prison
Infirmary; FNU SHEBELSKE,
Officer, Utah State Prison Infirmary;
CARMEN LNU,

            Defendants.
                           ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



      In his 42 U.S.C. § 1983 complaint, Karl Grant Losee, an inmate at the Utah

State Prison Utah appearing pro se, claimed that three prison doctors violated the

Eighth Amendment by improper treatment of his diabetes and potassium

imbalance. 1 Following its consideration of a Martinez report, 2 the physicians’

motion for summary judgment, and Mr. Losee’s response, the district court

concluded that defendants were not deliberately indifferent to Mr. Losee’s

medical needs and granted the motion for summary judgment. Mr. Losee appeals.

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


*
       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.
1
      Mr. Losee’s complaint included other causes of actions and named other
prison and state officials. After screening the complaint pursuant to 28 U.S.C.
§ 1915A, the district court dismissed the additional claims and defendants.
Mr. Losee has not challenged this screening order.
2
       See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (en banc) (per
curiam) (authorizing district courts to order prison officials to investigate
civil-rights complaints and prepare a report for submission to the court).

                                         -2-
                                          I.

      Before Mr. Losee began his term of imprisonment at the Utah State Prison,

his sentencing judge contacted Dr. Garden, the Administrative and Clinical

Director for Health Services in the Utah Department of Corrections, to explain

that Mr. Losee had difficult-to-manage diabetes and had been receiving both a

long-acting and an ultra-fast-acting insulin. Dr. Tubbs, a prison physician at the

prison, conducted Mr. Losee’s initial medical screening in April 2007 and

prescribed regular insulin as a temporary diabetes treatment pending further

evaluation.

      Dr. Roberts, also employed by the prison, became Mr. Losee’s primary

physician. Within weeks after Mr. Losee’s admission, Dr. Roberts ordered a

complete blood test and put in a request for an examination at the University of

Utah Medical Center (UMC). After the June examination, UMC advised

reinstating the more complex insulin regimen. To carry out this recommendation,

Mr. Losee’s blood sugar needed to be checked before each meal and at bedtime.

The ultra-fast-acting insulin should be administered just before or immediately

after each meal.

      As the district court put it, it then “fell to Defendants to determine how best

to implement the recommendation[] in the prison setting.” R. at 723. It was

difficult to fit the procedure into the prison’s general-population medication

system, which provided for only a morning and evening pill line. Dr. Roberts and

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other medical personnel conceived of various arrangements to accommodate

Mr. Losee’s insulin needs, such as admitting him to the infirmary. Mr. Losee

opposed a transfer to the infirmary because he was happy with his current housing

situation. He proposed other ideas and began pursuing grievances concerning his

medical care. Although Mr. Losee had been counseled about the need for a

proper diet, his commissary records showed that he was purchasing inappropriate

junk food.

      By August, a non-ideal solution was reached: Mr. Losee was to be given a

medical clearance pass to the infirmary for a blood-sugar check and medication

three times a day, within thirty minutes of each meal. Security concerns

prevented his receiving a night-time blood-sugar check at the infirmary. After

implementation of this system, Mr. Losee’s blood sugar continued to fluctuate

and his renal function deteriorated. Concerned about Mr. Losee’s health, medical

staff proposed other measures to reach full compliance with the UMC

recommendation, such as transferring Mr. Losee to the county jail or admitting

him to the infirmary. Mr. Losee again refused the proffered options. He

continued with the three-times-a-day infirmary plan, enhanced with a bedtime

blood-sugar check.

      A team of health-care providers, however, concluded that Mr. Losee should

be housed in a special-needs area in the Olympus housing unit, where his



                                        -4-
blood-sugar level and medication needs could be monitored four times a day.

Although Mr. Losee was displeased with this proposal, he was transferred to

Olympus in September. Claiming that being housed with mentally ill inmates

caused him severe stress, he asserted that the transfer was in retaliation for filing

grievances. After a period when Mr. Losee’s diabetes was under better control

than it had been before, he was allowed to move back to general-population

housing after signing an “Against Medical Advice” form. Mr. Losee was given

his own glucometer to test his blood sugar before each meal and at bedtime.

Arrangements were made for him to receive insulin in accordance with the UMC

recommendations.

      In addition to treatment for diabetes, Mr. Losee also received medical care

for elevated potassium levels. Shortly after intake, Dr. Roberts had Mr. Losee’s

potassium levels tested. In response to the test results, Dr. Roberts put Mr. Losee

on a low-potassium diet, ordered an electrocardiogram, and referred him to a

specialist. The specialist confirmed that the diet was appropriate and added a

medication to lower potassium levels.

                                          II.

      In its September 30, 2010 Memorandum Decision and Order, the district

court outlined Mr. Losee’s medical treatment and concluded that none of the

physicians had displayed deliberate indifference to his medical needs. The court



                                          -5-
entered summary judgment, determining that Mr. Losee’s claim was unsupported

by evidence. “This court reviews an award of summary judgment de novo,

viewing the record in the light most favorable to the non-moving party.

Moreover, this court construes a pro se party’s pleadings liberally.” Abdulhaseeb

v. Calbone, 600 F.3d 1301, 1311 (10th Cir.) (quotation omitted), cert. denied,

131 S. Ct. 469 (2010). Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).

      Based on our review of the record, the parties’ appellate filings, and the

relevant legal authority, we affirm for substantially the same reasons set forth by

the district court. Without question, the record demonstrates that defendants

adequately addressed Mr. Losee’s medical needs. Even “[a] negligent failure to

provide adequate medical care, [and] even one constituting medical malpractice,

does not give rise to a constitutional violation.” Perkins v. Kan. Dep’t of Corr.,

165 F.3d 803, 811 (10th Cir. 1999). Likewise, “a prisoner who merely disagrees

with a diagnosis or a prescribed course of treatment does not state a constitutional

violation.” Id. Mr. Losee has not come forward with evidence of deliberately

indifferent delay in his treatment or the substantial harm required to state such a

claim. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (holding that a

delay in medical care can only constitute an Eighth Amendment claim if there has

been a deliberate indifference that results in substantial harm).



                                         -6-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Stephen H. Anderson
                                          Circuit Judge




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