52 F3d 338 Richard Stout Millett v. Dr. Stan Tomkins

52 F.3d 338

Richard Stout Millett, Plaintiff-Appellant,
Dr. Stan TOMKINS, individually and as a physician at the
Central Utah Correctional Facility; Gary Fulkerson,
individually and as a physician at the Central Utah
Correctional Facility, Defendants-Appellees.

No. 94-4102.
(D.C. No. 92-CV-117-J)

United States Court of Appeals, Tenth Circuit.

April 12, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.


Before MOORE, BARRETT, and EBEL, Circuit Judges.

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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. Therefore, the case is ordered submitted without oral argument.


Plaintiff-Appellant Richard Stout Millett ("Millett") is an inmate at the Central Utah Correctional Facility in Gunnison, Utah


("CUCF") and filed this action pro se under 42 U.S.C.1983 to complain about the conditions of his incarceration. In particular, Millett claims that Defendants-Appellees Stan Tomkins ("Tomkins"), a physician assistant at CUCF, and Gary Fulkerson ("Fulkerson"), a doctor at CUCF, (collectively "Defendants") violated his Eighth Amendment right to be free from cruel and unusual punishment by denying his request for a permit to grow a beard. Millett asserts that he requires a beard permit because shaving causes or aggravates his impetigo, which is a bacterial infection that Millett suffers from periodically on his face. Based on the report and recommendation of a magistrate, the district court granted summary judgment for Defendants.2 We now affirm.


To prevail in a constitutional action premised on the failure of prison officials to respond to a prisoner's medical need, a prisoner must show that he or she (1) has a serious medical need; and (2) that the prison authorities were deliberately indifferent to that need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Mere negligence does not constitute deliberate indifference. Id. at 105-06. Rather, an official must act with a subjectively culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). Millett has failed to create a material dispute of fact that Defendants' conduct meets this standard.


As the magistrate recounts, Defendants Tomkins and Fulkerson responded to Millett's numerous sick-call requests by carefully examining Millett. When Millett first requested a beard permit, he did not mention impetigo and only complained of excessive bleeding when he cut himself shaving. Fulkerson tested Millett for hemophilia and other blood clotting disorders and those tests returned negative.3 Fulkerson examined Millett again after two subsequent sick-call requests, in which Millett still did not mention impetigo. When Millett mentioned impetigo in yet another sick-call request, Fulkerson prescribed antibiotic medication to Millett and issued him a temporary beard permit after observing lesions on Millett's jaw that might be from impetigo. When those lesions were slow to heal, Fulkerson referred Millett to another doctor who diagnosed him with folliculitis barbae, an irritation of facial hair follicles. That doctor prescribed new medication and extended Millett's temporary beard permit. As Defendants explain, no permanent beard permit was warranted because shaving does not cause impetigo, but merely spreads lesions that form until they are healed.


Based on this record, Millett has failed to show that Defendants were deliberately indifferent to his medical needs. On the contrary, they addressed Millet's medical complaints through examination, testing, and treatment. Millett contends that Defendants have misrepresented the content of his sick-call requests and their treatment, yet he has offered no evidence to support his allegations. Therefore, we conclude that Millett has failed to create a material dispute of fact related to his claim and that Defendants are entitled to judgment as a matter of law.


For the reasons explained above, the district court's grant of Defendants' motion for summary judgment is AFFIRMED. The Mandate shall issue forthwith.

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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470


The district court granted Millett's application to proceed in forma pauperis pursuant to 28 U.S.C.1915(a)


Defendant Tomkins only examined Millett once, when Millett complained of hearing problems. We agree with the magistrate's finding that Millett has failed to show that Tomkins was personally involved in Millet's current cause of action based on the alleged indifference to his request for a beard permit. A plaintiff must show that a defendant personally participated in the alleged deprivation of protected rights to sustain a 1983 action against that defendant. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Accordingly, Millett's claim against Tomkins fails for this reason, in addition to the reasons explained in the text