F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 6 1999 TENTH CIRCUIT _________________________________ PATRICK FISHER Clerk

FRANKIE L. GRIMES,

Plaintiff-Appellant,

v. No. 98-7182 (D.C. No. 97-CV-712) BOBBY BOONE, Warden of the Mack (E.D. Okla.) Alford Correctional Center; BRUCE HOWARD, Deputy Warden at Mack Alford Correctional Center; BETH LEADER, D.O., Doctor of Osteopathy at Mack Alford Correctional Center a/k/a Dr. Leader; T. Q. PHAM, M.D., Oriental Doctor at Mack Alford Correctional Center; MARCUS POGUE, Chief of Medical Services at Mack Alford Correctional Center; STEVE SNIDER, Food Service Manager at Mack Alford Correctional Center; and JIM RUTHERFORD, Food Service Supervisor at Mack Alford Correctional Center,

Defendants-Appellees.

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ORDER AND JUDGMENT * ______________________________

*This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Before TACHA, McKAY, and MURPHY, 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff-Appellant Frankie L. Grimes appeals the district court’s dismissal

of his civil rights complaint. Plaintiff, proceeding pro se, brought this action on

December 9, 1997, pursuant to 42 U.S.C. § 1983. He claimed that conduct by

prison officials relating to his health amounted to cruel and unusual punishment

in violation of the Eighth Amendment, and he sought both monetary and

injunctive relief. The district court entered a stay of proceedings and ordered

prison officials to investigate Plaintiff’s complaint and submit a report pursuant

to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), together with an answer or

other dispositive motion. On July 13, 1998, Defendants filed the Martinez report

along with a motion to dismiss or, in the alternative, a motion for summary

judgment. On November 16, 1998, the district court entered a minute order

granting the Motion to Dismiss/Motion for Summary Judgment because Plaintiff

failed to timely reply under the Eastern District of Oklahoma’s Local Rule 7.1(B).

See E.D. Okla. R. 7.1(B) (requiring a pleading or a response to a motion to be

2 filed within fifteen days). The court subsequently denied Plaintiff’s motion for

reconsideration and his request for appointment of counsel, but it granted

Plaintiff’s motion to proceed in forma pauperis on appeal.

Although the trial court did not err in dismissing for failure to timely reply,

we examine the merits of Plaintiff’s claims. Plaintiff reasserts the arguments he

made to the district court and claims that his untimeliness should be excused

because he misunderstood the effect of the order staying proceedings.

In the motions to the district court and on appeal, Defendants have asserted

several bases for dismissal, including the statute of limitations; res judicata;

qualified immunity and Eleventh Amendment immunity; and failure to state a

claim upon which relief may be granted. While each of the defenses appears to

have merit, we reach only the last one. Even after construing Plaintiff’s pro se

complaint liberally, see Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.

1996), we conclude that he has failed to state a claim upon which relief may be

granted and that his complaint is legally frivolous. At most, Plaintiff alleges

misdiagnosis of his medical complaints, but he comes nowhere near alleging the

deliberate indifference required by Estelle v. Gamble, 429 U.S. 97, 104 (1976), to

establish an Eighth Amendment violation based on inadequate medical care.

3 The decision of the district court is AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge

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