FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 8, 2020 _________________________________ Christopher M. Wolpert Clerk of Court DARRELL MORRIS,
Plaintiff - Appellant,
v. No. 18-6213 (D.C. No. 5:16-CV-01297-D) MARY FALLIN, Governor; MICHAEL (W.D. Okla.) W. ROACH, OK Board of Corrections; FRAZIER HENKE, OK Board of Corrections; JOHN T. HOLDER, OK Board of Corrections; KEVIN J. GROSS, OK Board of Corrections; GENE HAYNES, OK Board of Corrections; ADAM LUCK, OK Board of Corrections; IRMA J. NEWBORN, OK Board of Corrections; ROBERT PATTON, OK Dept of Corr Directors; JOE ALLBAUGH, OK Dept of Corr Directors; JOEL MCCURDY, Dr., OK Dept of Corr Chief Medical Officers; WILLIAM COOPER, Dr., OK Dept of Corr Chief Medical Officers; BUDDY HONAKER, OK Dept of Corr MSA’s; GENESE MCCOY, OK Dept of Corr MSA’s; WARDEN DAVID PARKER, D-III Deputy Director; JIM FARRIS, L.A.R.C. Warden; TAMARA HILL, L.A.R.C. Warden; LADONNA WARRIOR, RHSA; KENT KING, Dr., RHSA; ROBERT BALOGH, Dr., RHSA; BILLIE NYE, L.P.N. RHSA; JANET DOWLING, DCCC Warden; TAMMY CARTWRIGHT, DCCC Warden; JODY JONES, Warden’s Asst; LARRY BOWLER, Dr., CHSA; BETHANY WAGENER, PA-C, CHSA; DIANA COLLINS, Library Supervisor; TERRANCE BOLT, Library Supervisor; DANIEL OWENS, C.M.S.; LISA SMILEY, A/C C.M.; JOHN DOE, A/C C.M, ODOC Population Coordinator, C.C.F et. al,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Darrell Morris brought this pro se prisoner suit, alleging various claims
stemming from the denial of medical treatment. The district court dismissed most of
the claims at screening and later entered summary judgment on the rest based on lack
of exhaustion, qualified immunity, and failure to comply with state-law procedural
requirements. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Mr. Morris is an Oklahoma inmate who suffers from chronic pain, neuropathy,
and degenerative problems in his hips, legs, and back. According to the amended
complaint, prison staff treated his symptoms with a specific medication, Gabapentin,
until he was transferred to the Lexington Assessment and Reception Center
(Lexington), where this medication was discontinued. Defendants Nye, Balogh, and
* 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. 2 King were medical providers at Lexington. After unsuccessfully challenging the
denial of Gabapentin through Lexington’s prison grievance process, Mr. Morris was
transferred to another facility, the Dick Connor Correctional Center (DCCC).
Upon transfer to DCCC, Mr. Morris still was not prescribed Gabapentin, nor
was he allowed to use a wheelchair, an egg-crate mattress, or a foam-wedge pillow,
all of which he was previously permitted to use. Defendants Bowler and Wagener
were medical providers at DCCC. Although Mr. Morris met with Wagener for a
sick-call, he alleges she terminated the sick-call prematurely. As before, Mr. Morris
used the prison grievance process to contest Wagener’s termination of the sick-call,
as well as the denial of his medical items and the Gabapentin, but he was dissatisfied
with the results of those efforts, which eventually led the Oklahoma Department of
Corrections (ODOC) Medical Services Administrator, Defendant McCoy, to impose
grievance restrictions.
Based on these events, Mr. Morris filed an amended complaint against
twenty-three defendants, claiming “Deliberate Indifference to Medical Needs,”
retaliation, discrimination, conspiracy, “Obstruction of Due Process,” “Unequal
Protection of the Law,” “Grievance Process Unconstitutional,” fraud, and extortion.
R., Vol. 1 at 29. On initial screening, the district court adopted a magistrate judge’s
comprehensive report and recommendation that detailed why most of the claims
should be dismissed. The remaining claims against Defendants Nye, Balogh, King,
Bowler, Wagener, and McCoy proceeded to summary judgment. Thereafter, the
magistrate judge entered three separate reports recommending that, with one
3 exception, summary judgment be entered on these claims based on lack of exhaustion
or qualified immunity. The lone exception was a state-law claim against McCoy,
who the magistrate judge determined was entitled to summary judgment due to
Mr. Morris’s failure to comply with state-law procedural requirements. The district
court adopted each report and recommendation and entered judgment accordingly.
II
A. Briefing Deficiencies
At the outset, we note that Mr. Morris offers several poorly developed
arguments challenging the district court’s initial screening order. Although pro se
materials are entitled to a solicitous construction, Van Deelen v. Johnson, 497 F.3d
1151, 1153 n.1 (10th Cir. 2007), we have “repeatedly insisted that pro se parties
follow the same rules of procedure that govern other litigants,” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation
marks omitted). “Under [Fed. R. App. P.] 28, which applies equally to pro se
litigants, a brief must contain more than a generalized assertion of error, with
citations to supporting authority.” Id. at 841 (ellipsis and internal quotation marks
omitted). Among other things, “[a]n appellant’s opening brief must identify
‘appellant’s contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies.’” Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007) (quoting Fed. R. App. P. 28(a)(8)(A)). “When a pro se
litigant fails to comply with [this] rule, we cannot fill the void by crafting arguments
4 and performing the necessary legal research” for him. Garrett, 425 F.3d at 841
(brackets and internal quotation marks omitted).
Mr. Morris fails to adequately challenge the district court’s dismissal of his
claims in its initial screening order. He acknowledges his “legal work is lacking and
unorthodox,” Aplt. Opening Br. at 15, and indeed, he fails to explain why the court
erred in dismissing several causes of action. For example, he disputes the dismissal
of his fraud claims, asserting “Appellees refused to include in the court ordered
special report” some 280 exhibits that he provided to the court. See id. But rather
than explain why this alleged omission demonstrates error, he merely references the
objections he made in the district court. We have consistently held that incorporating
arguments by reference to previously filed pleadings is inadequate to preserve
appellate review. See, e.g., United States v. Gordon, 710 F.3d 1124, 1137 n.15
(10th Cir. 2013) (“[T]his court is under no obligation to consider arguments not fully
set forth in a party’s appellate brief, including arguments incorporated by reference to
prior pleadings or other materials.” (internal quotation marks omitted)). Because
Mr. Morris only incorporates his previous arguments, we decline to consider the
district court’s initial screening order that dismissed most of his claims.1
1 Mr. Morris also makes passing references to the district court’s denial of his motion for counsel and motion to file a second “supplemental complaint.” Aplt. Opening Br. at 16, 18. Even if he preserved these arguments, however, he identifies nothing to suggest the court abused its discretion, either in denying his request for counsel, see Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995), or in denying leave to file a second amended complaint, see Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010). 5 B. Firm Waiver Rule
Apart from his briefing deficiencies, Mr. Morris attempts to advance a claim
barred by our firm waiver rule. The amended complaint alleged McCoy engaged in
extortion under state law by imposing arbitrary grievance restrictions that required
him to pay money to file grievances. The magistrate judge recommended that
summary judgment be granted to McCoy because Mr. Morris failed to show he
complied with the procedural requirements of Oklahoma’s Governmental Tort
Claims Act, see Okla. Stat. tit. 51 § 156(A)-(C) (requiring that notice of claim be
filed with the Office of Risk Management Administrator within one year of loss).
Although Mr. Morris attempts to pursue this claim on appeal, he failed to object to
the magistrate judge’s recommendation, and the district court determined he waived
further review under our firm waiver rule. We agree.
“Under this court’s firm waiver rule, the failure to timely object to a
magistrate judge’s finding and recommendations waives appellate review of both
factual and legal questions.” Klein v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015)
(internal quotation marks omitted). “This rule does not apply, however, when (1) a
pro se litigant has not been informed of the time period for objecting and the
consequences of failing to object, or when (2) the interests of justice require review.”
Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005) (italics and
internal quotation marks omitted).
The first exception does not apply because the magistrate judge advised
Mr. Morris of the time for objecting and the consequences of failing to do so. See R.,
6 Vol. 4 at 255. As for the second, interests-of-justice exception, we consider “[1] a
pro se litigant’s effort to comply, [2] the force and plausibility of the explanation for
his failure to comply, and [3] the importance of the issues raised.” Casanova v.
Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (italics and internal quotation marks
omitted). Mr. Morris does not address these factors, and we therefore affirm the
disposition of this claim.
C. Exhaustion
We turn, then, to those claims the district court determined Mr. Morris failed
to exhaust. We review the district court’s decision de novo, viewing the “evidence in
the light most favorable to the non-moving party.” Tuckel v. Grover, 660 F.3d 1249,
1251 (10th Cir. 2011). “Summary judgment is appropriate when there is no genuine
issue of material fact and the movant is entitled to judgment as a matter of law.” Id.
(internal quotation marks omitted).
“Under the Prisoner Litigation Reform Act (‘PLRA’), a prisoner must exhaust
his administrative remedies prior to filing a lawsuit regarding prison conditions in
federal court.” Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010). “There is no
question that exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “[A]n inmate
may only exhaust by properly following all of the steps laid out in the prison
system’s grievance procedure.” Little, 607 F.3d at 1249. Substantial compliance will
not suffice. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
However, “[w]here prison officials prevent, thwart, or hinder a prisoner’s efforts to
7 avail himself of an administrative remedy, they render that remedy ‘unavailable’ and
a court will excuse the prisoner’s failure to exhaust.” Little, 607 F.3d at 1250.
ODOC’s administrative grievance process has four steps. First, a prisoner
must attempt to informally resolve the complaint by speaking with an appropriate
staff member. See R., Vol. 2 at 180 (ODOC Policy OP-090124 § IV.A-B). Second,
if the matter is not resolved informally, a prisoner must submit a “Request to Staff”
(RTS) within seven days of the incident. See id. at 180-81 (ODOC § V.C.3). Third,
if the matter remains unresolved, a prisoner must then file an “Offender Grievance
Form” (grievance) with the Reviewing Authority. See id. at 182 (ODOC § IV.A).
And last, if the prisoner is dissatisfied with the Reviewing Authority’s decision, he
may appeal to the Administrative Reviewing Authority (ARA). See id. at 186
(ODOC § VII.B). “The ruling of the ARA is final and will conclude the internal
administrative process available to the offender . . . .” Id. at 188 (ODOC § VII.D.1).
The district court determined Mr. Morris failed to exhaust three sets of claims:
1) his claims against Defendants Nye, Balogh, and King for the denial of Gabapentin
at Lexington; 2) his claims against Defendants Bowler and Wagener for denying him
Gabapentin at DCCC; and 3) his claims against Bowler and Wagener for denying him
the use of a wheelchair at DCCC. We consider these claims in turn.2
2 The court also determined Mr. Morris failed to exhaust claims against Balogh for making false allegations and altering his medical records. Mr. Morris does not challenge that ruling, and we do not consider it. 8 1. Denial of Gabapentin—Nye, Balogh, and King
Mr. Morris claims Nye, Balogh, and King were deliberately indifferent to his
serious medical needs by denying him Gabapentin upon transferring to Lexington.
He alleges Nye, a nurse at Lexington, prevented him from seeing Dr. Joel McCurdy,
who was responsible for prescribing him pain medication. He further alleges Balogh
and King, who were both doctors at Lexington, discontinued the Gabapentin and
misrepresented his medical conditions to justify their actions. Mr. Morris first raised
his concerns in writing with prison officials on December 1, 2014, when he submitted
RTS #2032. See R., Vol. 2 at 214. As we explain, however, Mr. Morris failed to
properly exhaust his remedies once he received a response to this RTS; instead, he
pursued a response and then, once he received it, took no further action on the
substance of his complaint.
In RTS #2032, Mr. Morris wrote, “Dr. King and Dr. Balogh have dismantled
years of trial and error that [my previous doctor] performed to get the Neuropathy in
my legs manageable with 1800 mg Gabapentin. . . . Please allow me to visit with
Dr. McCurdy to address my chronic pain and to get my medications
corrected/changed.” Id. Mr. Morris added that Nye had prevented him from seeing
Dr. McCurdy, he refused to see King and Balogh because they were neglecting his
pain, and Balogh had falsely accused him of being a drug addict. See id. at 215.
On January 2, 2015, having received no response to RTS #2032, Mr. Morris
filed a grievance indicating he should have received an answer to his RTS within 30
days. Mr. Morris stated in a sworn affidavit that his grievance was returned
9 unanswered the same day. He therefore filed an appeal directly with the ARA on
January 5, 2015, just before he was transferred to DCCC on January 8; on February
5, McCoy wrote back, stating she forwarded his RTS to the acting medical reviewing
authority at DCCC and requested a response. By February 25, however, still having
received no response, Mr. Morris submitted another RTS requesting a response to
RTS #2032. On March 27, McCoy finally sent Mr. Morris a response to RTS #2032
from the acting medical reviewing authority at DCCC, Buddy Honaker. Honaker
prepared a memo to Mr. Morris stating that Mr. Morris had been seen by Balogh,
who was treating his conditions as Balogh determined to be medically necessary.
Honaker further wrote that Balogh did “not support narcotics or increasing your
[Gabapentin]” and that he met Mr. Morris on November 17, 2014, reviewed
Mr. Morris’s treatment plan, and addressed his pain. Id. at 218. Also, Honaker
stated that Balogh was “doing [a] referral to Ortho to discuss treatment options from
outside specialties.” Id.
If Mr. Morris was dissatisfied with this response to RTS #2032, he was
obliged to file a grievance with the reviewing authority. His failure to do so left
these claims unexhausted. Mr. Morris disputes this conclusion by incorporating
previously rejected arguments from his district court pleadings, see Aplt. Opening Br.
at 4, but we decline to consider such arguments. He also says Honaker obstructed his
efforts to exhaust, apparently by omitting a date and number code from the response,
but Mr. Morris does not explain why this omission rendered the grievance process
10 unavailable, particularly where, without any response at all, he was able to submit a
grievance, an ARA appeal, and an RTS seeking a response.
2. Denial of Gabapentin—Bowler and Wagener
Mr. Morris also claims Bowler and Wagener denied him Gabapentin when he
was transferred to DCCC. On January 9, 2015, the day after he was transferred,
Mr. Morris submitted an RTS stating, “My medication that was managing my
neuropathy has been reduced by 2/3 and no other medication is being offered other
than medications that have been tried and proven to be ineffective. I have seen
[University of Oklahoma] pain management and OU orthopedics both recommended
the Gabapentin.” R., Vol. 2 at 220. On January 16, Mr. Morris’s RTS was returned
with the following disposition: “You have been seen by both providers and are
receiving appropriate care.” Id. Mr. Morris then filed grievance 15-03, requesting to
be transferred to another facility, stating: “[O]ne of my medications that I have been
taking for years has been discontinued and I am being refused any medications to
manage my excruciating pain except for medications that have already been tried and
proven ineffective. I met with Dr. Bowler upon arrival (1-8-15) and expressed my
needs, . . . however[,] he wasn’t willing to restore one of the medications
(Gabapentin).” Id. at 222. On February 17, the reviewing authority returned his
grievance stating, “Based on your classification and medical needs you[] are at a
facility that can meet your security classification and medical needs. Relief Denied.”
Id. at 224.
11 At that point, Mr. Morris attempted to complete the grievance process, but his
appeal to the ARA was returned unanswered because his grievance raised issues that
were not included in his RTS and he failed to attach the RTS to his grievance. See id.
at 230; see also id. at 182 (ODOC § V.A (stating inmates may challenge the denial of
an RTS by submitting a grievance “along with the [RTS],” and “[o]nly one issue or
incident is allowed per grievance”)). Mr. Morris filed a second appeal of grievance
15-03 on March 30, but McCoy returned it unanswered because the grievance raised
additional issues and he had only one opportunity to correct the defect. She therefore
informed him that his opportunity to proceed with the grievance process was waived
or forfeited. See id. at 232.
Undeterred, Mr. Morris submitted another RTS on May 11, complaining about
the lack of treatment and requesting to be transferred to a facility that could meet his
medical needs. The RTS was returned stating, “This has been previously addressed.”
Id. at 307. Morris then filed grievance 15-21, complaining that Bowler and Wagener
refused to treat him and requesting to be transferred to a different facility. Again,
however, the grievance was returned unanswered because Mr. Morris was on
grievance restrictions and he failed to provide a required affidavit specifying the
number, date, description, and disposition of each grievance he had submitted during
the preceding 12 months. See id. at 312; see also id. at 190-91 (ODOC § IX.B.2.a).3
3 Mr. Morris references a separate RTS and grievance 15-20, see Aplt. Opening Br. at 10, the latter of which was denied for the same reasons as grievance 15-21, see R., Vol. 295, 312. But he fails to explain how he exhausted grievance 12 Mr. Morris nevertheless proceeded with an appeal to the ARA, stating both providers
refused to treat him and requesting to be transferred. McCoy returned the appeal
unanswered because he failed to submit a grievance response or comply with the
grievance restrictions. Mr. Morris re-submitted his appeal, but Honaker returned it
unanswered for the same reasons and informed Mr. Morris that his repeated failure to
correct the procedural defects waived or forfeited his right to proceed in the
grievance process.
At that point, still undeterred, Mr. Morris attempted to exhaust a third time.
He filed an RTS stating that Bowler was denying him Gabapentin, a wheelchair, a
foam mattress, and a wedge; he also requested that prior recommendations for his
treatment be followed. The RTS was denied, stating: “Dr. Bowler is your current
physician—based upon his professional clinical judg[]ment there is no need to
change your medication at this time.” R., Vol. 1 at 192. Dissatisfied with this
response, Mr. Morris filed grievance 15-29, insisting Bowler was refusing to restore
his Gabapentin. The reviewing authority returned the grievance unanswered,
however, because Mr. Morris failed to comply with his grievance restrictions and the
issue had already been addressed by the ARA. Mr. Morris appealed to the ARA, but
again, his appeal was returned unanswered because he failed to obtain a response to
his grievance or to comply with his grievance restrictions. Mr. Morris nevertheless
filed yet another appeal of grievance 15-29, but as before, the ARA returned this
15-20, relying instead on an improperly incorporated argument he apparently made in his summary judgment response. Once again, we decline to consider this argument. 13 appeal unanswered because he failed to obtain a response to his grievance and he had
only one opportunity to correct errors. The ARA therefore informed him that his
opportunity to proceed with the grievance process was waived or forfeited.
This chronology demonstrates that Mr. Morris failed to properly exhaust his
claims. Although he asserts prison officials thwarted his efforts to exhaust by
imposing “fraudulent” grievance restrictions, Aplt. Opening Br. at 10, we have
rejected similar arguments, see Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir.
2010) (rejecting contention that grievance process was unavailable because inmate
was subjected to grievance restrictions and required to provide, among other things, a
notarized affidavit). As explained in Thomas, “to properly exhaust administrative
remedies prisoners must complete the administrative review process in accordance
with the applicable procedural rules[]—rules that are defined not by the PLRA, but
by the prison grievance process itself.” Id. (ellipsis and internal quotation marks
omitted). Mr. Morris “may not successfully argue that he had exhausted his
administrative remedies by, in essence, failing to employ them.” Id. (internal
quotation marks omitted).
3. Denial of a Wheelchair—Bowler and Wagener
Mr. Morris also alleges that Bowler and Wagener denied him a wheelchair.
Although he filed several RTS’s complaining of his mobility troubles and seeking
accommodations, he first specifically requested a wheelchair in an RTS dated March
16, 2015. See R., Vol. 1 at 109. The RTS was denied, stating: “This has been
addressed previously.” Id. He then filed grievance 15-13, reiterating his mobility
14 problems and requesting a wheelchair or a transfer to a facility better suited to
accommodating his medical needs. Id., Vol. 2 at 264. Apparently without receiving
a response, Mr. Morris filed an appeal to the ARA, reiterating his mobility problems
and requesting a wheelchair. He also attached a grievance-restriction affidavit. The
appeal was returned unanswered, however, because he indicated he had not
previously raised the same issues, but another RTS did, in fact, request
accommodations due to his mobility problems. Mr. Morris filed a second appeal
with the ARA, insisting his mobility problems were causing injury to his ankle and
knee and requesting a wheelchair. McCoy denied the appeal because he previously
requested accommodations, he failed to submit a grievance-restriction affidavit, and
he failed to obtain a response to grievance 15-13. Mr. Morris then proceeded with a
third appeal, this time repeating his request for a wheelchair and also disputing that
he had previously raised the same issue in a prior RTS. The appeal was returned
unanswered, noting it was his third appeal that was denied due to procedural errors
and, as a consequence, Mr. Morris waived or forfeited his opportunity to proceed
with the grievance process. Id. at 272.
Mr. Morris filed yet another unsuccessful RTS and, later, grievance 15-31,
which was returned unanswered because he failed to provide a grievance-restriction
affidavit and the issue had already been addressed. See id., Vol. 4 at 74. Mr. Morris
filed still another appeal to the ARA, which was returned unanswered because he
failed to obtain a decision on his grievance, he failed to provide the required
grievance-restriction affidavit, he had previously raised the same issue, and he raised
15 multiple other issues. Again, Mr. Morris filed another appeal, and again, the ARA
returned it unanswered for the same reasons, although the ARA also informed him
that his failure to correct the procedural errors resulted in his waiver or forfeiture of
the grievance process. As before, this chronology confirms that Mr. Morris failed to
properly exhaust his claims.
D. Qualified Immunity
The district court determined Bowler and Wagener were entitled to qualified
immunity on Mr. Morris’s claims that they denied him an egg-crate mattress and a
foam wedge, and that Wagener prematurely terminated his sick-call requests. “We
review a grant of summary judgment on the basis of qualified immunity de novo.”
Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005) (internal quotation marks omitted).
“When a defendant moves for summary judgment on the basis of qualified immunity,
the burden shifts to the plaintiff to demonstrate, on the facts alleged, that (1) the
defendant violated her constitutional or statutory rights, and (2) the right was clearly
established at the time of the alleged unlawful activity.” Castillo v. Day, 790 F.3d
1013, 1019 (10th Cir. 2015). The district court ruled Mr. Morris’s claims failed on
the first prong because he failed to show a constitutional violation. We agree.
The Eighth Amendment prohibits prison officials’ deliberate indifference to an
inmate’s serious medical needs. See Callahan v. Poppell, 471 F.3d 1155, 1159
(10th Cir. 2006). A negligent diagnosis or course of treatment is insufficient to state
an Eighth Amendment claim; rather, an inmate must show both harm that is
objectively sufficiently serious and also that prison officials subjectively “knew he
16 faced a substantial risk of harm and disregarded that risk, by failing to take
reasonable measures to abate it.” Id. (internal quotation marks omitted).
1. Egg-crate and Foam Wedge
Mr. Morris alleged the egg-crate mattress was for his orthopedic problems and
the foam wedge was to help with acid reflux. He asserted Bowler and Wagener
confiscated these items upon transfer to DCCC. However, even assuming without
deciding that the denial of these items is objectively sufficiently serious, Mr. Morris
fails to show Bowler and Wagener subjectively knew of and disregarded a substantial
risk of harm. The record indicates they believed an egg-crate mattress and a foam
wedge were not medically necessary. R., Vol. 2 at 238 (“Based upon the
professional, cli[n]ical judg[]ment of the DCCC providers, Dr. L. Bowler and B.
Wagener, PA-C[,] there is no current medical indication for a foam wedge or
mattress.”). While Mr. Morris disputes their professional judgment, the Eighth
Amendment does not grant inmates the right to a particular course of treatment. See
Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (“Disagreement with a
doctor’s particular method of treatment, without more, does not rise to the level of an
Eighth Amendment violation.”). And even if Bowler and Wagener were negligent in
denying these items, their negligence alone would not suffice to establish a claim for
deliberate indifference. See Callahan, 471 F.3d at 1159.
2. Termination of Sick-Calls
Mr. Morris also claimed Wagener prematurely terminated his sick-call
appointments without addressing all of his medical needs. The magistrate judge
17 determined the evidence did not support a constitutional violation, citing a treatment
note indicating that Wagener evaluated Mr. Morris’s pain symptoms, discussed his
treatment options, and implemented a treatment plan. See R., Vol. 4 at 193-94. The
district court agreed. On appeal, Mr. Morris insists he exhausted this claim, and he
incorporates several arguments he made in the district court. However, the district
court did not grant summary judgment on this claim due to lack of exhaustion; the
court concluded that he failed to show a constitutional violation. Moreover, we have
already explained that we will not consider arguments improperly incorporated from
district court pleadings. Under these circumstances, we affirm the district court’s
grant of summary judgment on this claim.
III
Accordingly, the judgment of the district court is affirmed. Mr. Morris’s
motion for oral argument is denied.
Entered for the Court
Carolyn B. McHugh Circuit Judge