F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 31 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

TIMOTHY J. WRIGHT,

Plaintiff-Appellant,

v. No. 96-1232 (D.C. No. 95-M-427) COLORADO DEPARTMENT OF (D. Colo.) CORRECTIONS, in its official capacity for the purposes of preliminary injunction pursuant to Rule 65, FRCP only; ARISTEDES W. ZAVARAS, Executive Director of the Colorado Department of Corrections, in his official capacity for the purpose of preliminary injunction pursuant to Rule 65, FRCP only; DENNIS KLEINSASSER, Medical Director for the Colorado Department of Corrections; CHERYL SMITH, Clinical Administrator at the Colorado Territorial Correctional Facility in her individualized personal capacity; ORVILLE NEUFELD, MD, Medical Doctor for the Colorado Territorial Correctional Facility, in his individualized personal capacity and Unknown John and/or Jane Does, in their individualized personal capacities; H. B. JOHNSON, Warden; RICE, Warden; RON JOHNSON, Medical Director, DRDC; S. SMITH, Medical Director, CTCF,

Defendants-Appellees. ORDER AND JUDGMENT *

Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.

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.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983, complaining

that defendants 1 violated his rights under the Eighth Amendment. From the

moment he was placed in custody, plaintiff began a long series of medical

complaints. His main complaint, and the subject of this action for deliberate

indifference to a serious medical need, involved pain associated with his clavicle

bone. Ultimately, plaintiff had surgery, outside the corrections system, and his

clavicle was removed. Plaintiff maintains that the fact that he was forced to live

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 10th Cir. R. 36.3. 1 Plaintiff dropped his claims against original defendants S. Smith, Frank Rice, H.B. Johnson, and Ron Johnson.

-2- with the pain and associated complications for over two years before the surgery

was performed, constituted deliberate indifference.

The district court adopted the magistrate judge’s report and

recommendation and granted summary judgment in favor of defendants. It is

from that order that plaintiff appeals. We affirm.

We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. See Thomas v. Wichita Coca-

Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). We must determine

whether there is a genuine issue of material fact and if the moving party is

entitled to judgment as a matter of law. See id. To that end, we view the

evidence in the light most favorable to the nonmoving party. See id.

“[D]eliberate indifference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted).

However, a difference of opinion as to treatment of a medical condition does not

rise to the level of a constitutional violation. See Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993).

The record in this case indicates that plaintiff received consistent medical

attention for a variety of complaints, including the pain associated with his

clavicle injury. Several different doctors consulted on plaintiff’s problems,

-3- including doctors from outside the correctional facility. Plaintiff received

physical therapy as recommended by a doctor for treatment of plaintiff’s

condition, his medications were changed several times in an attempt to alleviate

plaintiff’s complaints of pain, and, finally, an outside doctor recommended

surgery. It is clear from the record that the institutional doctors were addressing

plaintiff’s complaints on a consistent basis, but that they were uncertain as to the

precise treatment that should be administered. As a result, they sent plaintiff

outside the correctional facility to specialists. It is unfortunate that the treatment

decision ultimately reached was not reached sooner, but the record shows that, in

fact, the medical efforts were extensive; an appropriate response to an apparently

somewhat rare condition.

Plaintiff has failed to show deliberate indifference to his medical condition.

Therefore, the judgment of the United States District Court for the District of

Colorado is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge

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