                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  May 19, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 TRAVONE L. RICHARD,

          Plaintiff-Appellant,

 v.
                                                       No. 09-3381
                                              (D.C. No. 5:09-CV-03139-SAC)
 (FNU) BOKOR, Doctor/Physician, El
                                                         (D. Kan.)
 Dorado Correctional Facility; FNU
 LNU, State Official,
 Defendants - Appellees.

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Travone L. Richard, a Kansas state prisoner proceeding pro se, appeals

from the district court’s dismissal of his 42 U.S.C. § 1983 complaint alleging that

Ms. Bokor, a prison health care provider, violated his constitutional rights by

providing him inadequate medical treatment. Because we agree with the district



      *
         After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
court’s conclusion that Mr. Richard has failed to state a claim on which relief

may be granted, we affirm.

                                      *   *     *

      Mr. Richard is incarcerated in the Special Management Housing Unit of the

El Dorado, Kansas state correctional facility. In February 2009, Mr. Richard

sought medical treatment for a chronic illness that causes sores in his mouth. He

was scheduled for an initial medical visit with Ms. Bokor, but that visit ended

before it began, due to Mr. Richard’s disruptive behavior. Mr. Richard’s second

visit with Ms. Bokor also ended early, again due to his disruptive behavior.

During his third visit, Ms. Bokor offered to start Mr. Richard on antibiotics, but

he refused. Then, in his fourth visit, Mr. Richard finally accepted treatment and

Ms. Bokor prescribed various medications to treat his mouth sores. Two days

later, Mr. Richard asked Ms. Bokor to increase the dosage of one of his

medications, but she declined his request. Over the next week, Ms. Bokor

scheduled two follow-up visits with Mr. Richard, but he refused to attend either

of them. Eventually, Mr. Richard says, a different health care provider increased

his dosage as requested.

      Following this series of events, Mr. Richard filed administrative grievances

against Ms. Bokor and, when those proved unsuccessful, filed a complaint in

federal district court alleging that Ms. Bokor provided him inadequate medical

care in violation of his constitutional rights under the Eighth and Fourteenth

                                          -2-
Amendments. He also sought and was granted leave to proceed in forma

pauperis. The district court dismissed Mr. Richard’s complaint pursuant to 28

U.S.C. § 1915(e), which governs proceedings in forma pauperis and provides that

“the court shall dismiss the case at any time if the court determines that . . . the

action or appeal . . . fails to state a claim on which relief may be granted.” 28

U.S.C. § 1915(e)(2)(B)(ii). Mr. Richard now seeks to appeal the district court’s

dismissal of his complaint.

                                       *   *     *

        Before addressing the merits of Mr. Richard’s appeal, we must first assure

ourselves of jurisdiction to do so. Mr. Richard filed his notice of appeal after the

thirty day deadline required by Federal Rule of Appellate Procedure 4(a)(1), a

fact that would normally deprive us of jurisdiction to entertain his appeal. See

Bowles v. Russell, 551 U.S. 205, 214 (2007). At the time he filed his notice of

appeal, however, Mr. Richard also filed a “motion to reopen case,” which the

district court construed as a motion for an extension of time to file his notice of

appeal. D. Ct. Order of Feb. 4, 2010 at 1-2.

      Federal Rule of Appellate Procedure 4(a)(5) allows the district court to

extend the deadline for filing a notice of appeal if “a party so moves no later than

30 days after the time prescribed by this Rule 4(a) expires; and . . . that party

shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(i)-(ii). The

district court found that Mr. Richard had mistakenly filed his notice of appeal

                                           -3-
with the state district court within the initial Rule 4(a)(1) deadline and that he had

filed his “motion to reopen” within the Rule 4(a)(5) deadline. Based on this, the

district court held that Mr. Richard had met Rule 4(a)(5)’s requirements, granted

him an extension of time, and accepted his notice of appeal as timely filed.

Because the district court’s extension of time did not constitute a “clear abuse of

discretion,” Romero v. Peterson, 930 F.2d 1502, 1505 (10th Cir. 1991), we agree

that Mr. Richard’s notice of appeal was timely filed, and we thus properly possess

jurisdiction over his appeal.

                                      *    *    *

      To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the

violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under

color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). And to make out a

constitutional claim alleging inadequate medical treatment, a prisoner must

demonstrate that the prison staff acted with “deliberate indifference to [his]

serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Martinez v.

Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).

      The test for “deliberate indifference” includes two components — one

objective, the other subjective. See Callahan v. Poppell, 471 F.3d 1155, 1159

(10th Cir. 2006). The objective component requires that the defendant’s medical

needs be “sufficiently serious to implicate the Cruel and Unusual Punishment

                                          -4-
Clause.” Id. (internal quotation marks omitted). “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.” Sealock v. Colorado, 218 F.3d 1205, 1209

(10th Cir. 2000) (internal quotation marks omitted). The subjective component

requires that the official “knew [the prisoner] faced a substantial risk of harm and

disregarded that risk, by failing to take reasonable measures to abate it.”

Callahan, 471 F.3d at 1159 (quotation marks omitted).

      We agree with the district court that Mr. Richard has failed to state an

actionable claim under these standards. 1 Even assuming (without deciding) that

his mouth sores presented a “sufficiently serious” medical need, Mr. Richard has

not demonstrated that Ms. Bokor disregarded any substantial risk of harm

associated with this medical need. In fact, Mr. Richard’s pleadings establish just

the opposite: Ms. Bokor prescribed medication to treat Mr. Richard’s mouth

sores and even scheduled follow-up appointments. These efforts were

occasionally thwarted by Mr. Richard’s own disruptive behavior and refusal of




      1
         Because Mr. Richard’s filings in the district court and this court were
prepared pro se, we afford them a “solicitous construction.” Van Deelen v.
Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). We do not, however, “supply
additional factual allegations to round out [Mr. Richard’s] complaint or construct
a legal theory on [his] behalf.” Whitney v. State of New Mexico, 113 F.3d 1170,
1175 (10th Cir. 1997).

                                         -5-
treatment. Yet, that hardly establishes that Ms. Bokor was indifferent to his

medical needs.

      Given all this, Mr. Richard is left, in the end, only with his assertion that

Ms. Bokor should have increased the dosage for his medicine when he requested.

But this court long ago explained that “a mere difference of opinion between the

prison’s medical staff and the inmate as to the diagnosis or treatment which the

inmate receives does not support a claim of cruel and unusual punishment.”

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); see also Estelle, 429 U.S. at

106 (explaining that even “[m]edical malpractice does not become a constitutional

violation merely because the victim is a prisoner.”). And the facts alleged in Mr.

Richard’s complaint suggest no more than this.

                                      *     *    *

      We affirm the district court’s dismissal of Mr. Richard’s complaint.

Because the district court granted Mr. Richard leave to proceed in forma pauperis

on appeal, we remind him of his obligation to continue making partial payments

until the entire filing fee for this appeal is paid. See 28 U.S.C. § 1915(b).


                                          ENTERED FOR THE COURT



                                          Neil M. Gorsuch
                                          Circuit Judge




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