                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       May 3, 2007
                     UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                            FO R TH E TENTH CIRCUIT                    Clerk of Court



    STEV EN RA Y TH OM AS,

                Plaintiff-Appellant,

    v.                                                 No. 06-3235
                                                (D.C. No. 04-CV-3274-JTM )
    LOUIS E. BRUCE, W arden,                             (D . Kan.)
    Hutchinson Correctional Facility;
    ROGER W ERHOLTZ, Secretary of
    Corrections; DENNIS GOFF, Nurse
    Practitioner; JANET M YERS,
    R egistered N urse; D EB RA LU NDRY,
    N urse; NEA L R . B RO CK BA N K,
    Contracting Physician; CORRECT
    CA RE SOLU TIONS,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      This case involves an appeal by pro se Plaintiff Steven Ray Thomas of the

district court’s order granting summary judgment sua sponte in favor of

defendants. M r. Thomas’s lawsuit filed pursuant to 42 U.S.C. § 1983 asserts that

while he was incarcerated in a Kansas state prison that the various named

defendants were aware of, and deliberately indifferent to, his serious medical

needs with respect to treatment of his Hepatitis B and C, all in violation of the

Eighth Amendment. On appeal, M r. Thomas does not challenge the district

court’s order on summary judgment, but instead requests the court to grant him

leave to file an amended complaint. Because the proposed amended complaint

would either only amend non-material clerical errors or present new arguments

and evidence not raised before the district court, we are constrained to affirm the

district court’s grant of summary judgment in favor of the defendants.

                                          I

      On August 26, 2004, M r. Thomas, a prisoner of the State of Kansas, filed

this suit under 42 U.S.C. § 1983 asserting that defendants violated his Eighth

Amendment rights while he was incarcerated through their deliberate indifference

to his serious medical needs. M r. Thomas’s complaint sought declaratory and

injunctive relief and compensatory and punitive damages. Attached to M r.

Thomas’s complaint were thirty-four pages of documents supporting his claims.

The district court assigned the case dismissed the complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii) and Rule 12(b)(6) of the Federal Rules of Civil Procedure,

                                         -2-
which order we reversed on appeal in Thom as v. Bruce, 125 F. App’x 964 (10th

Cir. M ar. 18, 2005) (unpub.). On M ay 3, 2005, M r. Thomas filed a verified

amended complaint excluding as defendants the State of Kansas, Kansas

Department of Corrections, and Hutchinson Correctional Facility (“HCF”), but

otherwise alleging similar facts constituting the same constitutional violation by

the same individual defendants and seeking the same relief as his first complaint.

M r. Thomas again attached exhibits to his complaint supporting his claims.

      On M ay 3, 2005, M r. Thomas also filed a motion requesting the district

court to order a report be prepared by prison officials pursuant to M artinez v.

Aaron, 570 F.2d 317 (10th Cir. 1978) (the “M artinez Report”), which the district

court granted on M ay 10, 2005. On September 16, 2005, the Kansas Department

of Corrections filed the M artinez report with the district court.

      On February 13, 2006, Defendants Louis E. Bruce and Roger W erholtz

moved the district court for summary judgment. M r. Thomas did not file a

response but, instead, on M arch 10, 2006, filed a motion to amend his Amended

Complaint to fix two “clerical errors” (adding the date and fact that he received a

biopsy to paragraphs 28 and 34) and disputing the date on which defendants

learned of his H epatitis diagnosis (1996 versus 2003). M r. Thomas renewed his

motion to correct the two “clerical mistakes” on April 3, 2006, and also moved to

correct an error in the M artinez report (the date the biopsy was performed was




                                          -3-
December 7, 2004, not December 17, 2004) and delete two paragraphs from his

initial disclosures regarding who ordered a biopsy.

      On April 25, 2006, without ruling on the motions to amend, the district

court granted summary judgment in favor of all defendants. Although the district

court found Defendants Bruce and W erholtz’s motion failed to comply with

federal and local rules and “lack[ed] substantive legal analysis of the claim

presented,” Dist. Ct. Order of A pril 25, 2006, at 1, the district court, nonetheless,

granted summary judgment sua sponte “in the interest of judicial expediency,” id.

The district court explicitly based its findings on the information in the M artinez

report, id. at 4, and, because M r. Thomas had failed to file a timely response,

proceeded as if it were considering an unopposed motion for summary judgment,

id. at 3. After an extensive examination of records in the M artinez report, the

district court concluded:

             The medical record indicates that defendants were
             continuously aw are of and monitoring plaintiff’s condition. In
             M arch 2003, plaintiff's goal was established to avoid liver
             toxins. On August 22, 2003 and January 29, 2004, plaintiff
             had additional lab work done. On October 20, 2004, plaintiff
             requested and received records as to his enzyme levels. After
             this, the record indicates that doctor and patient agreed they
             would “work up the process” on plaintiff regarding his
             hepatitis. In the following months, additional tests were
             conducted. By mid-November 2004, it was recommended that
             plaintiff receive a liver biopsy. On December 7, 2004, the
             liver biopsy was performed. In his motion to amend his
             complaint, plaintiff acknowledges he received the biopsy in
             December 2004.



                                          -4-
                Under these circumstances, the court finds that plaintiff fails to
                establish an Eighth Amendment claim. Defendants clearly
                acknowledge that plaintiff had a serious condition that was
                continuously monitored through clinic visits and lab tests.
                Plaintiff fails to establish that defendants w ere deliberately
                indifferent under both an objective and subjective analysis.
                First, there is no evidence of a deprivation that was
                sufficiently serious to meet the objective component. The care
                providers recognized plaintiff's condition and provided
                ongoing monitoring. Second, there is no evidence of
                defendants knowingly disregarding risk to plaintiff's health.
                W hen plaintiff’s high enzyme levels warranted further testing
                and a liver biopsy, defendants undertook steps to ensure
                treatment through the established administrative process.
                Plaintiff fails to contradict these facts. The record indicates
                that plaintiff's reluctance to participate in a drug treatment
                program may have been partially responsible for his treatment
                delays.

Id. at 15-16.

      On M ay 12, 2006, M r. Thomas filed a motion to reconsider, which the

district court denied on M ay 31, 2006. In its order, the district court explained

that it had “waited more than two months before entering an order in this case,”

Dist. Ct. Order of M ay 31, 2006, at 2, and that a response from M r. Thomas was

not received until the day the court was planning to file its grant of summary

judgment, id. M oreover, the district court noted that the response it received

from M r. Thomas failed to comply with local filing requirements and thus could

not be docketed or considered even if it had been timely. Id. The court found

under those circumstances its original grant of summary judgment was

appropriate.



                                            -5-
                                          II

      On appeal, M r. Thomas has “stipulate[d] the [district] court did act

appropriately in dismissing his complaint for failure to state a claim [sic], but

should have allowed him the opportunity to amend the . . . complaint.” A plt.

Opening Br. at 17. From this, and seeking to construe his argument as liberally as

we might, we perceive M r. Thomas to be making one of two arguments on appeal:

(1) that the district court should have granted his motions to amend his complaint

and supplement the record, or (2) that he should be granted another opportunity

by this court to present a different amended complaint fixing the defects in his

original complaints.

      W ith respect to the first of these arguments, however, M r. Thomas had tw o

motions pending before the district court to amend his complaint and supplement

the record when the district court granted summary judgment and none of the

proposed revisions would have altered the district court’s analysis. In fact, the

district court’s order explicitly acknowledged and addressed the revisions that M r.

Thomas sought to make through his motions to amend. See Dist. Ct. Order of

April 25, 2006, at 15 (“In his motion to amend his complaint, plaintiff

acknowledges he received the biopsy in December 2004.”). A ccordingly, even if

the district court had granted M r. Thomas’s motions to amend prior to issuing its




                                          -6-
order granting summary judgment, the district court’s analysis would not have

changed at all. 1

       W e think it more likely that on appeal M r. Thomas is asking this court for

another opportunity to file an amended complaint based on new evidence and

arguments he has presented on appeal. However, M r. Thomas was already

granted an opportunity to amend his complaint “as needed” after his first appeal

to this court, Thom as, 125 F. App’x at 968. The only reason M r. Thomas

provides for why he failed previously to present the arguments and evidence he

now seeks to advance was that “at the time [he] drafted his complaint, he had no

understanding of the law and/or legal writing whatsoever.” Aplt. Opening Br.

at 17. But in the proceedings on remand after his initial appeal, M r. Thomas did

have knowledge of the facts of his case, the contents of the M artinez Report, and

defendants’ motion for summary judgment. M oreover, M r. Thomas w as able to

successfully appeal the district court’s dismissal of his lawsuit, file an amended

complaint, and file two motions to amend errors he found in his amended

complaint, his initial disclosures, and the M artinez Report. M r. Thomas thus had




1
       “A M artinez report is treated like an affidavit, and the court is not
authorized to accept the factual findings of the prison investigation when the
plaintiff has presented conflicting evidence.” Hall v. Bellmon, 935 F.2d 1106,
1111 (10th Cir. 1991). In this case, even considering the excluded allegations,
M r. Thomas presented nothing relevant to the district court’s grant of summary
judgment which conflicted with the M artinez report.


                                         -7-
more than sufficient notice and opportunity to present all his new evidence and

arguments before the district court.

      Generously read, M r. Thomas’s second appeal constitutes his fourth motion

to file an amended complaint in this matter. Although w e recognize that pro se

parties should not be held to the same standards as attorneys and should be

afforded significant leniency in their filings, granting M r. Thomas another

opportunity to present the arguments and evidence he should have presented

previously before the district court would significantly undermine the value of

finality. Accordingly, while affording M r. Thomas all the benefits of a pro se

litigant, we are nonetheless constrained to deny his request for another

opportunity to amend his complaint based on new arguments and evidence he has

thus far failed to present to the district court. See, e.g., Wardell v. Duncan, 470

F.3d 954, 963 (10th Cir. 2006) (affirming district court’s denial of leave to amend

a pro se complaint when plaintiff moved to amend two years after filing the

action, “did not diligently pursue the basis for such amendments, and that the

facts behind such amendments would have been known to the plaintiff at the

initiation of this action,” (citations omitted)).

                                       *    *       *

      The judgment of the district court is affirmed. M r. Thomas’s motion to

proceed without prepayment of costs or fees is granted. He is reminded that he is




                                           -8-
obligated to continue making partial payments until the entire fee has been paid.

All other pending motions are denied as moot. 2

                                                   Entered for the Court


                                                   Neil M . Gorsuch
                                                   Circuit Judge




2
       M r. Thomas has a number of outstanding motions, including: (1) to
proceed without prepayment of costs or fees, file-stamped September 25, 2006;
(2) for preliminary injunction and attached motion for oral argument, file-stamped
January 11, 2007; and (3) for permission to supplement his appendix, affidavit 7,
with lab reports for another inmate with Hepatitis C, file-stamped January 22,
2007. M r. Thomas has also filed a notice to the court regarding his attempts to
retain counsel and a notice regarding certain exhibits filed-stamped M arch 8,
2007.

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