                                                                        FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      December 16, 2005
                               TENTH CIRCUIT
                                                                         Clerk of Court


 JOHN A. BROWN,
             Plaintiff - Appellant,                     No. 05-3199
 v.                                            (D.C. No. 05-CV-3158-GTV)
 PRISON HEALTH SERVICES, El                             (D. Kansas)
 Dorado Correctional Facility; and
 CORRECT CARE SOLUTIONS, El
 Dorado Correctional Facility,
             Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.




      After examining the briefs and the appellate record, this court 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).

Accordingly, this case is 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       This order and judgment is not binding precedent, except under the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.
      John A. Brown, a state prisoner proceeding pro se, appeals the district

court’s denial of his 42 U.S.C. § 1983 civil rights complaint. In his § 1983

complaint, Brown alleged that diabetes medication previously determined to be

adverse to his health was nevertheless administered to him by prison officials,

with a resulting adverse impact to his physical well-being. Specifically, Brown

alleged that notwithstanding information in his prison medical file indicating a

certain medication, Metformin, should not be administered to him, this same

medication was later administered to him under a different brand name,

Glucophage. Brown sought damages from two corporations providing contract

medical services to correctional facilities in Kansas, asserting that the actions of

the prison medical officials denied him his Eighth Amendment right to be free

from cruel and unusual punishment.

      The district court granted judgment in favor of the defendants, concluding

that Brown’s allegations failed to state a claim upon which relief could be

granted. In so doing, the district court first recognized it is well-established that

prison officials violate the Eighth Amendment when they are deliberately

indifferent to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97,

104 (1976). Nevertheless, “accidental or inadvertent failure to provide adequate

medical care, or negligent diagnosis or treatment of a medical condition do not

constitute a medical wrong under the Eighth Amendment.” Ramos v. Lamm, 639

F.2d 559, 575 (10th Cir. 1980). Instead, to satisfy the Eight Amendment’s

                                          -2-
deliberate indifference standard, “the official must have a sufficiently culpable

state of mind, which in this context means the official must exhibit deliberate

indifference to a substantial risk of serious harm to an inmate.” Barney v.

Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (quotation omitted). “Thus, the

deliberate indifference standard in a prison-conditions case is a subjective and not

an objective requirement. That is, a prison official is liable only if the official

knows of and disregards an excessive risk to inmate health and safety. It is not

enough to establish that the official should have known of the risk of harm.” Id.

(quotations and citation omitted).

      Upon review of Brown’s allegations, the district court concluded that his

claims failed because there was absolutely no indication that prison officials

knowingly placed Brown on the improper diabetes medication. Instead, the

district court noted that Brown’s allegations reflected at most a state tort claim of

negligence or malpractice and that Brown had, in fact, brought just such a claim

in Kansas state court. For these reasons, the district court dismissed Brown’s

complaint for failure to state a claim upon which relief could be granted and

entered judgment in favor of the defendants.

      This court has reviewed Brown’s appellate brief, the district court’s orders,

and the entire record on appeal. That review demonstrates that the district court’s

resolution of this case is correct. Accordingly, for substantially those reasons set




                                          -3-
out in the district court’s orders dated April 11, 2005 and May 20, 2005, the order

of the district court dismissing Brown’s complaint is hereby AFFIRMED.

                                               Entered for the Court



                                               Michael R. Murphy
                                               United States Circuit Judge




                                         -4-
No. 05-3199, Brown v. Prison Health Services

LUCERO, Circuit Judge, dissenting.

      Brown’s complaint alleges that although his prison medical file indicated

that he would suffer adverse reactions to a particular diabetes medication

(Metformin) a prison doctor nonetheless prescribed the medication under a

different brand name (Glucophage). He further alleged that being placed on the

contraindicated medication for over six months elevated his blood sugars from

240 to 600 daily for the period of time, leading to the onset of neuropathy years

before he would have suffered neuropathy in the normal course of his diabetes,

caused kidney problems, and led to other medical complications. The record

substantiates these claimed injuries.

      Given that “[d]eliberate indifference to serious medical needs is shown

when prison officials have prevented an inmate from receiving recommended

treatment,” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), it seems an

unremarkable proposition that an official may engage in deliberate indifference

when administering treatment that is clearly contraindicated. See, e.g., Benson v.

Cady, 761 F.2d 335, 341 (7th Cir. 1985) (“this court has found that an allegation

that the plaintiff inmate was administered penicillin despite his known allergy to

that drug stated an eighth amendment claim”). A response from PHS and facts

developed in discovery might show that PHS is entitled to judgment as a matter of

law, but I cannot agree that this action warranted summary dismissal under 42

U.S.C. § 1997e. I respectfully dissent.
