McLean vs. Clough, No. 07-1094 (10th Cir. 2007)

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FILED United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 26, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court W ILLIA M SA M U EL M C LEA N, JR., Plaintiff-Appellant, No. 07-1094 (D. Colorado) (D.C. No. 04-cv-02440-ZLW -M JW ) v. DR. STEVEN R. CLOUGH, O.D., Defendant-Appellee. OR D ER AND JUDGM ENT * Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). W illiam M cLean, a federal prisoner proceeding pro se, appeals the district court s dismissal of his complaint filed pursuant to Bivens v. Six Unknown Named * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971). M r. M cLean alleged that Dr. Steven Clough, O.D., during a routine eye examination, acted with deliberate indifference when he administered a visual field test that caused M r. M cLean to suffer permanent stroke-like symptoms. The magistrate judge, after reviewing the opinion of Dr. Clough s expert witness, recommended that the district court grant his motion for summary judgment. The district court accepted this recommendation. W e have jurisdiction under 28 U.S.C. § 1291, and affirm. I. BACKGROUND M r. M cLean has epilepsy, and, according to his complaint, has suffered seizures that trigger stroke-like symptoms. Before the actions underlying this complaint, M r. M cLean suffered such a seizure on July 8, 2002. On M arch 16, 2004, while housed at the United States Penitentiary, Administrative M aximum ( A DX ), in Florence, Colorado, M r. M cLean saw Dr. Clough for an eye appointment. M r. M cLean contends that Dr Clough had reviewed his medical records, which explained his history of epilepsy and strokelike symptoms. M r. M cLean also contends that he discussed his medical condition, including his medications, with Dr. Clough. As part of the examination, Dr. Clough performed a visual field mapping test on M r. M cLean. The computerized test, which involves flashes on a computer screen, measures peripheral vision. M r. M cLean contends that while -2- taking the test on his left eye, he recalls saying, I can t do this and laying his head in his lap and hands. R ec. vol. I, doc. 3, at 4-D. M r. M cLean next recalls waking up from a seizure and being treated by ADX s clinical director Dr. Lawrence L. Leyba. M r. M cLean contends that the seizures resulted in stroke-like symptoms to his left side, including the requirement of a left leg brace, weakness in his left arm, decreased control over his bowel and bladder, impotence, and pain and numbness in his left hip. After exhausting his administrative remedies as to his claims against Dr. Clough, M r. M cLean filed a complaint seeking $1,000,000 in damages. Before us, M r. M cLean maintains he has also suffered brain damage and is mentally deficient as a result of the seizure. The district court denied Dr. Clough s motion to dismiss, appointed counsel, and the parties proceeded through discovery. M r. M cLean became dissatisfied with his appointed counsel, and the court granted counsel s motion to withdraw. The magistrate judge determined that the Eighth Amendment claim was sufficiently sophisticated such that expert testimony is required. Rec. vol. II, doc. 150, at 12. Thomas A. Politzer, O.D., Dr. Clough s expert witness, opined that [v]isual field testing is generally regarded as safe and that there is no evidence, or history of automated visual field testing causing a seizure reported in the literature. Id. vol. I, doc. 115, ex. B. Dr. Politzer concluded that D r. -3- Clough . . . provided appropriate medically indicated care, and he met [the] standard of care. Id. Dr. Leyba also testified that he recommended visual field testing as part of a thorough ophthalmologic examination to help determine whether there was an embolic phenomena or vascular problem that might contribute to M r. M cLean s seizures. Id. doc. 124, ex. A at 6. M r. M cLean did not put forth any experts. The magistrate judge recommended granting Dr. Clough s motion for summary judgment. After giving M r. M cLean extra time to file objections to the report and recommendation, the district court reviewed the objections, and adopted the magistrate judge s recommendation. M r. M cLean timely appealed. II. DISCUSSION W e review a district court s grant of summary judgment de novo, applying the same standards as the district court. Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 725 (10th Cir. 2006). Summary judgment is appropriate only where there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. F ED . R. C IV . P. 56(c). The Eighth Amendment creates an obligation on the part of prison officials to provide adequate health care to inmates. Estelle v. Gamble, 429 U.S. 97, 103 (1976). This does not mean, however, that a mere complaint that a physician has been negligent in diagnosing or treating a medical condition states a valid claim of medical mistreatment under the Eighth Amendment. Id. at 105-06. [A] -4- prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Id. at 106. The test for constitutional liability of prison officials involves both an objective and a subjective component. M ata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). To satisfy the objective component, a plaintiff must show that the medical need is sufficiently serious, M ata, 427 F.3d at 751, and that the D efendant[ s] [inadequate care or] delay in meeting that need caused him substantial harm[.] Oxendine v. Kaplan, 241 F.3d 1272, 1276-77 (10th Cir.2001) (quotations and footnote omitted). A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor s attention. Hunt v. U phoff, 199 F.3d 1220, 1224 (10th Cir.1999) (quoting Ramos v. Lam m, 639 F.2d 559, 575 (10th Cir. 1980) (further quotation omitted)). The substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain. M ata, 427 F.3d at 751 (internal quotation marks omitted). The subjective prong of the deliberate indifference test requires the plaintiff to present evidence of the prison official s culpable state of mind. The subjective component is satisfied if the official knows of and disregards an excessive risk to inm ate health or safety; the official m ust both be aware of facts from which the inference could be draw n that a substantial risk of serious harm exists, and [s]he must also draw the inference. -5- Id. (internal quotation marks and citations omitted). W e affirm the grant of summary judgment to Dr. Clough for substantially the same reasons as set forth in the magistrate judge s report and recommendation. Recognizing that M r. M cLean has suffered substantial harm, the likelihood for that harm to result from the administration of the visual field test was not obvious and there is no evidence that Dr. Clough was deliberately indifferent. As the magistrate judge noted: The doctor reviewed the complaints plaintiff presented to Dr. Clough, the exam notes, and plaintiff s history. In addition, he stated the factors which are appropriate criteria for conducting the test and opined that the testing is generally regarded as safe and that there are no contra-indications with the possible exception of patients with a known history [of] reflex photo-sensitive seizure during automated visual field testing, which plaintiff did not possess. Furthermore, he stated that there is no evidence, or history of automated visual field testing causing a seizure reported in the literature. In fact, he reported that visual field testing is protocol prior to starting certain new generation anti-seizure medications and is done at regular, frequent intervals during their use. Finally, he noted that during the examination by Dr. Clough, plaintiff presented with a history of head injury, stroke, and migraine, and the exam was noteworthy for narrow angles. Dr. Politzer opined that [a]ny one of these significant issues alone would mandate visual field testing. Rec. vol. II, doc. 150, at 12-13. Thus, even construing M r. M cLean s pleadings liberally as we must, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and view ing the well-pleaded facts in his favor, he cannot establish that Dr. Clough was deliberately indifferent to his medical needs w hen he administered the field vision test. -6- III. CONCLUSION Accordingly, we AFFIRM the district court s grant of summary judgment in favor of Dr. Clough. M r. M cLean is reminded to continue making partial payments of his appellate filing fee until the entire balance is paid. Entered for the Court, Robert H. Henry United States Circuit Judge -7-

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