Jack T. Morgan, Plaintiff-appellant, v. Johnson County Detention Center Medical Staff and Janeshartrand, Defendants-appellees, 69 F.3d 548 (10th Cir. 1995)

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.

Mr. Morgan is a state inmate and a pro se litigant. Mr. Morgan commenced a 42 U.S.C.1983 suit against the "Johnson Co. Det. Cent. Med. Staff." He now appeals an adverse summary judgment. We grant Mr. Morgan permission to proceed in forma pauperis and affirm the judgment of the district court.

Mr. Morgan filed his suit alleging he was being held in jail, had cancer and was in severe pain. He alleged whenever his private physician prescribed medication, the jail physician "must approve." He alleged the jail's medical staff's "attitude is wilfully uncaring and negligent."

Defendants moved for summary judgment and attached voluminous supporting evidence. The gist of this evidence shows Mr. Morgan was transported to the Kansas University Medical Center forty-four times and that each and every medical care request was responded to by the medical staff. Mr. Morgan responded to this motion by asking for discovery, which he contended would show that he "requested many times to be taken to the infirmary" and that he was not taken to the infirmary each time he requested.

The district court granted defendants' motion for summary judgment, stating:

Here, the record makes it clear that plaintiff received continuous and necessary medical treatment by the jail medical staff. Plaintiff's complaint is directed instead at delay in the treatment. However, even if the alleged delay is taken as true, there is nothing in the record to indicate the delay was intentional and for the purpose of subjecting plaintiff to serious harm. Plaintiff's allegations reflect, at most if at all, a claim for medical malpractice which plaintiff must pursue in a state court action. A negligent act of an official causing injury to life, liberty, or property does not violate the United States Constitution. Daniels v. Williams, 474 U.S. 327, 328-31 (1986); Davidson v. Cannon, 474 U.S. 344 (1986). See Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990) (more than mere negligence required for constitutional deprivation in civil rights action).

Mr. Morgan appeals this judgment raising two issues: (1) "Whether the District Court was in error in denying Plaintiff's motion foro discovery"; and (2) "Whether the District Court was in error in summarily dismissing Plaintiff's action and granting Defendant summary judgment."

* In responding to defendants' motion foro summary judgment, Mr. Morgan stated: "Plaintiff submits this is a ploy to prevent the discovery requested. The discovery would show that Plaintiff requested many times to be taken to the infirmary."

A party to a law suit has no absolute right to discovery. The district court assumed the truth of the facts Mr. Morgan asserted he would discover.

Mr. Morgan had no Constitutional right to be taken to the infirmary each and every time he complained. Mr. Morgan had an obligation to show defendants acted with deliberate indifference to his medical problems. The evidence fails to make this showing. In fact, the evidence contained in the record on appeal shows anything but deliberate indifference. On the occasions Mr. Morgan sought to go to the infirmary, the record shows he was seen by a nurse who conferred with a physician.

We cannot hold the district court abused its discretion in denying Mr. Morgan discovery under the facts of this case.

II

Mr. Morgan makes two basic complaints concerning his second argument. First, he contends there existed a genuine issue of material fact that precluded summary judgment. Mr. Morgan does not spell out the disputed facts, and we assume they relate to whether Mr. Morgan was taken to the infirmary each time he requested. The district court assumed the truth of these allegations. Second, Mr. Morgan complains most vehemently that the district court delayed any action concerning Mr. Morgan's complaint and motions for eight months. Mr. Morgan asserts the district court judge should have therefore recused himself. This contention warrants no discussion. Unfortunately, a delay of eight months in a civil action for damages is not unusual, and this fact does not warrant Mr. Morgan relief. Mr. Morgan has made no showing the trial judge should have recused himself.

We have examined the record on appeal and considered Mr. Morgan's contentions. We have not been persuaded error exists. The judgment of the district court is AFFIRMED.