Harvey G. Wilson, Plaintiff-appellant, v. James L. Moon, Defendant-appellee, 38 F.3d 1221 (10th Cir. 1994)

ORDER AND JUDGMENT¹ 

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff-Appellant, an inmate at an Oklahoma Correctional Center, brought this pro se action in the federal district court pursuant to 42 U.S.C.1983.²  The plaintiff alleged that he injured his foot from repeatedly jumping down to the floor of his cell from his assigned upper bunk. Although the plaintiff received medical treatment from doctors on several occasions, his injury persisted. Thereafter, he brought this suit against Warden James L. Moon, arguing that the failure to equip his cell with a ladder or to allow him to undergo surgery constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.

The district court granted the defendant's motion to dismiss for failure to state a claim upon which relief can be granted, holding that the plaintiff failed to allege sufficient evidence that the defendant was personally involved in the incident, see Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976), or had demonstrated "deliberate indifference" to Plaintiff's "serious medical needs," Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The plaintiff timely appealed the dismissal of his suit. For the reasons stated by the district court, we AFFIRM.