Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TOMMY MAY,
Plaintiff - Appellant,
v. No. 23-3129 (D.C. No. 5:22-CV-03198-JWL) (FNU) BUNTING; MELODY STRODA; (D. Kan.) DR. JODY PALMER,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, PHILLIPS, and ROSSMAN, Circuit Judges. _________________________________
Tommy May, a Kansas prisoner appearing pro se1 appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action against various prison officials. 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 in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Because Mr. May proceeds pro se, we construe his arguments liberally, but we “cannot take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 2
Mr. May suffered from cancer. He alleged in his complaint that, prior to his
incarceration at Douglas County Detention Center (DCDC), he had a prescription for
oxycodone pain medication to manage his chronic pain. But officials at DCDC
refused to provide oxycodone to him. He brought a § 1983 action consisting of two
claims: (1) denial of access to the courts related to COVID-19 policies that restricted
his access to the prison law library; and (2) denial of appropriate medical care rising
to the level of deliberate indifference in violation of the Eighth Amendment.
Because Mr. May proceeded in forma pauperis (IFP), the district court
screened his complaint under 28 U.S.C. § 1915(e)(2). The court dismissed the
access-to-courts claim2 but ordered the prison to prepare a report under
Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978), to better evaluate the Eighth
Amendment claim. Mr. May moved for the court to appoint counsel for him, but the
court denied the motion. The court also denied multiple motions to reconsider its
earlier denial of the motion to appoint counsel. Upon receipt of the Martinez report,
the court dismissed the Eighth Amendment claim. This timely appeal followed.
“We review de novo the district court’s decision to dismiss an IFP complaint
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis,
500 F.3d 1214, 1217 (10th Cir. 2007). In so doing, “[w]e apply the same standard of
review . . . that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to
2 Mr. May does not challenge the dismissal of his access-to-courts claim, so we do not consider it. See Folks v. State Farm Mut. Auto. Ins. Co., 784 F.3d 730, 737 (10th Cir. 2015) (deeming as waived arguments not addressed in opening brief).
2 Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 3
dismiss.” Id. “Under this standard, we must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light most favorable to the
plaintiff.” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019)
(internal quotation marks omitted). “[A] complaint must contain sufficient factual
matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted). To meet this standard,
the plaintiff must “plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
Courts apply a deliberate indifference standard to determine whether prison
staff violated a prisoner’s Eighth Amendment right to be free from cruel and unusual
punishment. This standard includes an objective component, which “is met if the
harm suffered is sufficiently serious to implicate the Cruel and Unusual Punishment
Clause.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal
quotation marks omitted). Claims that “amount[] to merely a disagreement with
[prison staff’s] medical judgment concerning the most appropriate treatment,” do not
meet this standard. Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010).
Mr. May argues his allegations that DCDC refused to fill his prescription for
oxycodone, an opioid, meet this test. But the district court concluded his allegations,
at most, amounted to a disagreement with prison medical staff on the most
appropriate treatment in his specific circumstance, and on de novo review of the
record, we agree. To this end, we also reject Mr. May’s argument that the district
court erroneously assumed DCDC had a policy prohibiting the prescription of opioids
3 Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 4
to all prisoners. Regardless of whether DCDC had such a policy, the record reflects
it reasonably decided against dispensing opioids to Mr. May specifically, and
disagreement with that decision does not create an Eighth Amendment claim. See
Gee, 627 F.3d at 1192.
Mr. May also argues the district court should have granted him leave to amend
his complaint before dismissing it, but he did not request such leave below, nor does
he identify to this court what factual allegations he would have added to cure the
deficiencies the district court identified. Under these circumstances, we discern no
error in the failure to sua sponte grant leave to amend. See Glenn v. First Nat’l Bank
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Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court TOMMY MAY,
Plaintiff - Appellant,
v. No. 23-3129 (D.C. No. 5:22-CV-03198-JWL) (FNU) BUNTING; MELODY STRODA; (D. Kan.) DR. JODY PALMER,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, PHILLIPS, and ROSSMAN, Circuit Judges. _________________________________
Tommy May, a Kansas prisoner appearing pro se1 appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action against various prison officials. 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 in 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 Because Mr. May proceeds pro se, we construe his arguments liberally, but we “cannot take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 2
Mr. May suffered from cancer. He alleged in his complaint that, prior to his
incarceration at Douglas County Detention Center (DCDC), he had a prescription for
oxycodone pain medication to manage his chronic pain. But officials at DCDC
refused to provide oxycodone to him. He brought a § 1983 action consisting of two
claims: (1) denial of access to the courts related to COVID-19 policies that restricted
his access to the prison law library; and (2) denial of appropriate medical care rising
to the level of deliberate indifference in violation of the Eighth Amendment.
Because Mr. May proceeded in forma pauperis (IFP), the district court
screened his complaint under 28 U.S.C. § 1915(e)(2). The court dismissed the
access-to-courts claim2 but ordered the prison to prepare a report under
Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978), to better evaluate the Eighth
Amendment claim. Mr. May moved for the court to appoint counsel for him, but the
court denied the motion. The court also denied multiple motions to reconsider its
earlier denial of the motion to appoint counsel. Upon receipt of the Martinez report,
the court dismissed the Eighth Amendment claim. This timely appeal followed.
“We review de novo the district court’s decision to dismiss an IFP complaint
under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis,
500 F.3d 1214, 1217 (10th Cir. 2007). In so doing, “[w]e apply the same standard of
review . . . that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to
2 Mr. May does not challenge the dismissal of his access-to-courts claim, so we do not consider it. See Folks v. State Farm Mut. Auto. Ins. Co., 784 F.3d 730, 737 (10th Cir. 2015) (deeming as waived arguments not addressed in opening brief).
2 Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 3
dismiss.” Id. “Under this standard, we must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light most favorable to the
plaintiff.” Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019)
(internal quotation marks omitted). “[A] complaint must contain sufficient factual
matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted). To meet this standard,
the plaintiff must “plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
Courts apply a deliberate indifference standard to determine whether prison
staff violated a prisoner’s Eighth Amendment right to be free from cruel and unusual
punishment. This standard includes an objective component, which “is met if the
harm suffered is sufficiently serious to implicate the Cruel and Unusual Punishment
Clause.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal
quotation marks omitted). Claims that “amount[] to merely a disagreement with
[prison staff’s] medical judgment concerning the most appropriate treatment,” do not
meet this standard. Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010).
Mr. May argues his allegations that DCDC refused to fill his prescription for
oxycodone, an opioid, meet this test. But the district court concluded his allegations,
at most, amounted to a disagreement with prison medical staff on the most
appropriate treatment in his specific circumstance, and on de novo review of the
record, we agree. To this end, we also reject Mr. May’s argument that the district
court erroneously assumed DCDC had a policy prohibiting the prescription of opioids
3 Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 4
to all prisoners. Regardless of whether DCDC had such a policy, the record reflects
it reasonably decided against dispensing opioids to Mr. May specifically, and
disagreement with that decision does not create an Eighth Amendment claim. See
Gee, 627 F.3d at 1192.
Mr. May also argues the district court should have granted him leave to amend
his complaint before dismissing it, but he did not request such leave below, nor does
he identify to this court what factual allegations he would have added to cure the
deficiencies the district court identified. Under these circumstances, we discern no
error in the failure to sua sponte grant leave to amend. See Glenn v. First Nat’l Bank
in Grand Junction, 868 F.2d 368, 371 (10th Cir. 1989).
Finally, we reject Mr. May’s argument that the district court erred in denying
his motion for appointment of counsel. “We review the denial of appointment of
counsel in a civil case for an abuse of discretion.” Rucks v. Boergermann,
57 F.3d 978, 979 (10th Cir. 1995). “The burden is upon the applicant to convince the
court that there is sufficient merit to his claim to warrant the appointment of counsel.
This contemplates an examination of the state of the record at the time the request is
made.” McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (internal citation
omitted). “Only in those extreme cases where the lack of counsel results in
fundamental unfairness will the district court’s decision be overturned.” Id. at 839.
Mr. May argues, as he did before the district court, that counsel would have assisted
in him in reviewing the record and presenting his case, but this does not establish
fundamental unfairness. “It is not enough that having counsel appointed would have
4 Appellate Case: 23-3129 Document: 010111022060 Date Filed: 03/26/2024 Page: 5
assisted the prisoner in presenting his strongest possible case, as the same could be
said in any case.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (internal
quotation marks and brackets omitted).
We affirm the judgment of the district court. We grant Mr. May’s motion to
proceed IFP on appeal.
Entered for the Court
Gregory A. Phillips Circuit Judge