                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                MAR 23 1999
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 HERMAN RAY GRANT,

               Plaintiff-Appellant,

 v.                                                            No. 98-2193
                                                      (D.C. No. 98-0633 LH/LFG)
 BERNALILLO COUNTY DETENTION                            (District of New Mexico)
 CENTER, MIKE SISNEROS,
 ADMINISTRATOR, LT. IVERSON,
 SERGEANT CHIMINTO, C/O MIKE
 GRALTON, UNIVERSITY HOSPITAL,
 NURSES JANE DOE 1 AND JANE DOE
 2, SGT. MATT CANDELARIA, SGT.
 ANNETTE MAMARIAN

               Defendants-Appellees.



                              ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.



       Plaintiff Herman Ray Grant, a prisoner at the Central New Mexico Correctional

Facility, appeals the district court’s sua sponte dismissal of his 42 U.S.C. § 1983

complaint for failure to state a claim. After examining the briefs and the appellate record,

       *
               This order and judgment is not binding precedent, except under the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.
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. For the reasons set forth

below, we affirm the district court’s decision.



                                    I. BACKGROUND

       In his complaint, Mr. Grant alleges that after he fell and hurt his back as he

stepped out of the shower on May 17, 1997, corrections officials refused to provide him

with medical care. Only “[a]fter some time and a lot of complaining” did the officials

take him to a doctor. See Rec. doc. 1, at 3. On October 4, 1994, Mr. Grant maintains, he

fell again. On this occasion, corrections officials took him to the hospital, provided him

with a doctor, and gave him medication. However, he was never referred to an

orthopedic surgeon, even though the doctor who treated him informed him that an

appointment had been scheduled.

       Mr. Grant names the Bernalillo County Detention Center, University Hospital, and

several corrections officials as defendants. He alleges that the defendants were

deliberately indifferent to his medical needs and therefore imposed cruel and unusual

punishment in violation of the Eighth Amendment. He seeks compensatory and punitive

damages and declaratory and injunctive relief.

       Applying 28 U.S.C. § 1915(e)(2), the district court dismissed Mr. Grant’s


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complaint for failure to state a claim upon which relief could be granted pursuant to Fed.

R. Civ. P. 12(b)(6). It concluded that Mr. Grant had failed to allege that the defendants

had been deliberately indifferent to his serious medical needs.



                                      II. DISCUSSION

       On appeal, Mr. Grant argues that the district court erred in concluding that he had

failed to allege a violation of the Eighth Amendment. He also contends that he should be

allowed to amend his complaint to add additional allegations in support of his claim.

       We review de novo the district court’s dismissal of Mr. Grant’s complaint for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). Kidd v. Taos Ski Valley, Inc., 88

F.3d 848, 854 (10th Cir. 1996). We accept as true all the well-pleaded facts set forth in

the complaint and construe them in the light most favorable to the plaintiff. See

Bauchman v. West High School, 132 F.3d 542, 550 (10th Cir.1997), cert. denied, 118 S.

Ct. 2370 (1998). We may affirm a Rule 12(b)(6) dismissal only if the plaintiff can prove

“no set of facts that would entitle him to relief.” Gaines-Tabb v. ICI Explosives, USA,

Inc., 160 F.3d 613, 619 (10th Cir. 1998). Although we construe pro se pleadings

liberally, a pro se plaintiff must still allege sufficient facts on which a recognized legal

claim may be based; conclusory allegations are insufficient. Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir.1991).

       Deliberate indifference to a prisoner’s serious medical needs constitutes cruel and


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unusual punishment in violation of the Eighth Amendment. Brown v. Zavaras, 63 F.3d

967, 970 (10th Cir. 1995) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Such

deliberate indifference has an objective and a subjective component. See Farmer v.

Brennan, 511 U.S. 825, 834 (1994); Beyerbach v. Sears, 49 F.3d 1324. 1329 n. 1 (8th

Cir. 1995) (applying Farmer test to deprivation of medical care). Objectively, the

medical need must be “sufficiently serious.” Farmer, 511 U.S. at 834. This circuit has

concluded that a medical need is sufficiently serious “if it is ‘one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.’” Ramos v. Lamm, 639 F.2d

559, 575 (10th Cir. 1980) (quoting Laaman v. Helgemoe, 437 F. Supp 269, 311 (D.N.H.

1977)). As to the subjective component, the plaintiff prisoner must show that the

defendant knew of his serious medical need and intentionally refused to provide care.

See Farmer, 511 U.S. at 847; Handy v. Price, 996 F.2d 1064, 1066-67 (10th Cir.1993).

“[A]llegations of 'inadvertent failure to provide adequate medical care' or of a 'negligent .

. . diagnos[is]'” are insufficient to establish the requisite state of mind. Handy, 996 F.2d

at 1067 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

       Under these standards, delay in providing medical care may constitute a violation

of the Eighth Amendment. See, e.g. Thomas v. Town of Davie, 847 F.2d 771, 772-73

(11th Cir. 1988) (concluding that an automobile accident victim stated an Eighth

Amendment claim against police officers for delay in obtaining medical care when the


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victim obviously needed immediate medical attention and his condition was

deteriorating). Delays that courts have found to violate the Eighth Amendment have

frequently involved life-threatening situations and instances in which it is apparent that

delay would exacerbate the prisoner’s medical problems. See Hill v. Dekalb Regional

Youth Detention Center, 40 F.3d 1176, 1187 & n.21 (11th Cir. 1994) (collecting cases).

Officials may also be held liable when the delay results in a lifelong handicap or a

permanent loss. See id. at 1188.

       In contrast, in instances in which delays in providing treatment involve less serious

medical conditions, the Eighth Amendment may not be implicated. See, e.g., Wesson v.

Oglesby, 910 F.2d 278, 284 (5th Cir. 1990) (concluding that a delay in obtaining

treatment for a prisoner's swollen, bleeding wrists, caused by tight handcuffs, was

insufficient to establish an Eighth Amendment claim); Martin v. Gentile, 849 F.2d 863,

871 (4th Cir. 1988) (concluding that a fourteen hour delay in obtaining treatment for a

sliver of glass in a detainee's palm did not constitute deliberate indifference to a serious

medical need under the Eighth Amendment).

       In this circuit, we have concluded that a delay in medical treatment for a serious

medical need does not violate a prisoner's constitutional rights unless the prisoner can

show that the delay resulted in “substantial harm.” See Olson v. Stotts, 9 F.3d 1475, 1477

(10th Cir. 1993) (quoting Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)).

Applying that standard, we have rejected a prisoner’s claim that requiring him to wait one


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to two years for an operation constituted cruel and unusual punishment under the Eighth

Amendment, reasoning that he had failed to establish that the delay would cause further

damage to his leg. See White v. State of Colo., 82 F.3d 364, 366 (10th Cir. 1996).

       Applying these principles to Mr. Grant’s allegations, we agree with the district

court that he has failed to state an Eighth Amendment claim. With regard to his first fall,

Mr. Grant alleges only that he was “in bad pain” and that, when he was taken to a doctor

“[a]fter some time,” he was informed that he “had a pool of blood and some spin [sic]

fluid.” Rec. doc. 1, at 3. The potential seriousness of these injuries causes us some

concern. However, Mr. Grant has failed to make any specific allegations as to the length

of the delay in providing medical care, and he has failed to allege that this unspecified

delay resulted in substantial harm. Thus his complaint does not state a claim that the

defendant prison officials were deliberately indifferent to a serious medical need in their

response to his first fall.

       As to his second fall, Mr. Grant alleges only that he was not examined by an

orthopedic surgeon. He acknowledges that he was taken to the hospital, examined by

another doctor, and given medication. He does not maintain that the failure to be

examined by an orthopedist resulted in substantial harm. The fact that he did not receive

a particular form of treatment does not constitute an Eighth Amendment violation. See

White, 82 F.3d at 367.

       Finally, we conclude that the district court did not err in dismissing Mr. Grant’s


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complaint without affording him an opportunity to amend it. Mr. Grant has not

demonstrated that he could amend his allegations to state an Eighth Amendment claim,

and 28 U.S.C. § 1915(e)(2) authorizes the district court’s sua sponte decision.

       Accordingly, we AFFIRM the district court’s decision dismissing Mr. Grant’s

complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).



                                                  Entered for the Court,



                                                  Robert H. Henry
                                                  Circuit Judge




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