Christopher Willis, Individually and As Personalrepresentative of the Estate of Christopherwillis, Jr., Plaintiffs-appellants, v. Michael Beason, M.d., Defendant-appellee, 48 F.3d 1233 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Mr. Willis, both in his own capacity and as representative of the estate of his deceased son, Christopher Willis, Jr., brought this 1983 action against Dr. Michael Beason, a physician with the Oklahoma Department of Corrections. It is undisputed that Christopher Willis, an Oklahoma inmate who suffered from chronic and severe asthma, died of an asthma attack while in prison and while under the treatment of Dr. Beason. Mr. Willis's complaint alleged that the medical care received by his son during the fatal attack was so deficient as to constitute a violation of the Eighth Amendment. Dr. Beason moved for summary judgment. The district court found that Mr. Willis had failed to adduce evidence establishing the existence of "deliberate indifference" within the meaning of Estelle v. Gamble, 429 U.S. 97, 104 (1976), and therefore granted Dr. Beason's motion. Mr. Willis appeals.

We affirm for substantially the reasons given by the district court. It is well-settled that a prisoner may not use the Eighth Amendment to bring what is, in essence, a medical malpractice claim. To survive summary judgment on an Eighth Amendment claim, a plaintiff must establish that a defendant acted with "deliberate indifference," which is a "higher degree of fault than negligence, or even gross negligence." Berry v. City of Muskogee, 900 F.2d 1489, 1495 (10th Cir. 1990). We have defined deliberate indifference to be "conduct [that] disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights." Id. at 1496; see also Benson v. Cady, 761 F.2d 335, 338-42 (7th Cir. 1985). The record plainly demonstrates that Dr. Beason did not disregard Christopher Willis's medical condition. Plaintiff's allegations about the treatment ordered by Dr. Beason may raise issues of negligence; however, claims of negligent malpractice do not suffice to state an Eighth Amendment claim. Estelle, 429 U.S. at 106.

The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.