FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         May 18, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
EDWARD ALLEN,

             Plaintiff-Appellant,

v.                                                         No. 11-1435
                                              (D.C. No. 1:10-CV-01510-CMA-BNB)
ARISTEDES ZAVARAS; UNKNOWN                                  (D. Colo.)
STERLING CORRECTIONAL
MEDICAL STAFF; DR. KREBS,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.


      Edward Allen, a Colorado inmate proceeding pro se, is incarcerated by the

Colorado Department of Corrections at the Sterling Correctional Facility in Sterling,

Colorado. He asserts that Warden Aristedes Zavaras and Dr. Stephen Krebs were

deliberately indifferent to his serious medical needs when they failed to diagnose

*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
or to allow a diagnosis of his lung problem. 1 He filed suit under 42 U.S.C.

§ 1983. The district court granted summary judgment in defendants’ favor.

Mr. Allen appeals and requests leave to proceed in forma pauperis (IFP). We

exercise jurisdiction under 28 U.S.C. § 1291, grant his request to proceed on

appeal IFP, and affirm.

                               I. BACKGROUND

      We view the facts in the light most favorable to Mr. Allen, the party

opposing summary judgment. Sealock v. Colorado, 

, 1209

(10th Cir. 2000). The magistrate judge gave a detailed factual account; therefore,

we provide only a brief description of the facts.

      In October 2009, Mr. Allen complained of chest pain. He was examined

and evaluated on several occasions by prison medical personnel in October,

November, and December of 2009. He was prescribed Motrin for pain. On

November 6, 2009, he had a CT scan of his chest that revealed a nodule

measuring 13 x 14 millimeters. On January 4, 2010, prison medical personnel

requested a repeat chest CT scan, but the request was denied because it did not


1
       In addition to the named defendants, the complaint caption named as
defendants “Unknown Sterling Correctional Medical Staff,” R. at 5, but Mr. Allen
does not pursue claims against any unnamed defendants. Courts generally permit a
plaintiff to use unnamed defendants, but the plaintiff must “provide[] an adequate
description of some kind which is sufficient to identify the person involved so
process eventually can be served.” Roper v. Grayson, 

, 126 (10th Cir.
1996). Given that the unnamed defendants were merely included in the caption of
the amended complaint, we do not consider them.


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include adequate clinical information to justify the scan. Accordingly, a second

request with the necessary clinical information for a repeat chest CT scan was

submitted on March 3, 2010. This request was approved on March 11, and

Mr. Allen had a repeat chest CT scan on April 2, 2010. The nodule was no longer

visible and the previously documented nodule was diagnosed as probable

atelectasis. 2 No follow-up testing was indicated. Mr. Allen received Motrin, as

well as training for managing his pain, from the prison clinic personnel.

      In his complaint, Mr. Allen asserted that Dr. Krebs was an employee of

Physician Health Partners and that it was Dr. Krebs who denied the initial request

for the second chest CT scan. 3 Mr. Allen further alleged that after the second CT

scan, medical personnel would not explain the results to him. Thus, he claimed

that Dr. Krebs “refuse[d] to allow a diagnos[i]s of the plaintiff’s lung problem.”

R. at 8. 4 According to Mr. Allen, Dr. Krebs was deliberately indifferent to his

2
      “Atelectasis is a small area of the lung that is no longer moving air and
subsequently collapses.” R. at 82.
3
       Dr. Krebs is considered a governmental employee who can be held liable for
violations of the Eighth Amendment because the state has delegated to him
penological medical functions. See Smith v. Cochran, 

, 1215-16
(10th Cir. 2003) (collecting cases).
4
       On appeal, Mr. Allen asserts that he was denied needed pain medication from
January 2010 until July 2010, and that his lung problem may have been caused by
“being gassed” upon his arrival at the correctional facility. See, e.g., Aplt. Reply
Br. at 5, 6. These claims were not raised in the district court; therefore, we do not
consider them. See Ark Initiative v. U.S. Forest Serv., 

, 1261
(10th Cir. 2011) (stating claims not preserved in the district court “are forfeited and
may not be appealed”).

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serious medical needs. Mr. Allen also sought injunctive relief against Warden

Zavaras, claiming that the warden could order the medical personnel to diagnose

and treat him.

      Defendants filed a motion for summary judgment supported by an affidavit

from expert medical witness Paula Frantz, M.D. Dr. Frantz opined, among other

things, that the delay in the second chest CT scan was caused by the prison medical

personnel’s failure to provide adequate information to Physicians Health Partners; the

appropriate treatment for Mr. Allen’s condition was Motrin as needed; the evaluation

and treatment Mr. Allen received was medically appropriate; and Mr. Allen did not

suffer any injury, permanent disability, or pain due to the delay in obtaining the

second chest CT scan.

      A magistrate judge recommended granting defendants’ motion for summary

judgment. Following a de novo review, the district court adopted the magistrate

judge’s recommendation and granted summary judgment in favor of defendants.

On appeal, Mr. Allen challenges various discovery and evidentiary rulings made

by the magistrate judge, as well as the merits determination on summary

judgment. He also asserts that the magistrate judge was biased against him and

failed to allow him to file an amended complaint. Mr. Allen is representing

himself on appeal, so his filings will be construed liberally. See Erickson v.

Pardus, 

, 94 (2007) (per curiam).




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                                 II. DISCUSSION

                      A. Discovery and Evidentiary Rulings

      Mr. Allen challenges several orders by the magistrate judge denying his

motions concerning discovery. Specifically, he twice sought an extension of the

deadline for completing discovery and moved to compel discovery. He further

claims that the magistrate judge improperly received and considered the affidavit of

Dr. Frantz. He also contends that the magistrate judge should have dismissed

defendant’s summary judgment motion because it was filed one day past the deadline

for filing dispositive motions. We review those rulings for an abuse of discretion.

Rural Water Dist. No. 4 v. City of Eudora, 

, 975 (10th Cir. 2011)

(reviewing evidentiary rulings for an abuse of discretion); Skrzypczak v. Roman

Catholic Diocese of Tulsa, 

, 1242 (10th Cir. 2010), cert. denied,

(2012) (reviewing for an abuse of discretion district court’s denial of

request for an extension of time to complete discovery); Garza v. Davis, 

, 1205 (10th Cir. 2010) (“District courts generally are afforded great discretion

regarding trial procedure applications (including control of the docket and parties),

and their decisions are reviewed only for abuse of discretion.” (internal quotation

marks omitted)); Norton v. City of Marietta, 

, 1156 (10th Cir. 2005)

(reviewing district court’s ruling on motion to compel for abuse of discretion).

      The motions to extend the discovery deadline and the motion to compel were

based on Mr. Allen’s view that defendants would need more time to answer his


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discovery requests and that they failed to provide adequate answers. The magistrate

judge declined to extend the discovery deadline, and denied the motion to compel,

because the materials requested by Mr. Allen either had been provided to him or were

unavailable. Mr. Allen has failed to show any prejudice from the magistrate judge’s

denial of the relief he requested concerning discovery. Therefore, he is not entitled

to relief. Alpine Bank v. Hubbell, 

, 1114 (10th Cir. 2009). Although

Mr. Allen asserts on appeal that he wanted more time to serve additional discovery

requests, he did not make this claim to the district court and, thus, has forfeited it.

See Ark Initiative v. U.S. Forest Serv., 

, 1261 (10th Cir. 2011) (stating

claims not preserved in the district court “are forfeited and may not be appealed”).

       Mr. Allen next challenges Dr. Frantz’s affidavit on the ground that she never

examined him, so her opinion should have been stricken. He offers no legal authority

for this position. Dr. Krantz’s affidavit identified specific supporting facts and

provided a medical basis for her opinion. See R. at 77-82. Therefore, the district

court did not abuse its discretion in considering it. Cf. Fitzgerald v. Corrs. Corp. of

Am., 

, 1143 (10th Cir. 2005) (holding physician’s affidavit was

insufficient to support summary judgment because it contained only conclusory

allegations without specific supporting facts).

       We also find no abuse of discretion in the magistrate judge’s decision not to

strike defendants’ motion for summary judgment as untimely. It is undisputed that

the motion was filed electronically on the deadline. Mr. Allen complains that it was


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not placed in the mail to him until the next day, but he has not identified any

prejudice to him caused by the one-day delay. See Alpine 

.

   B. Summary Judgment‒Deliberate Indifference to Serious Medical Needs

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

. Summary judgment is appropriate if “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      Deliberate indifference to a prisoner’s serious illness involves an objective

and a subjective element. 

. The objective element is

fulfilled if a medical need “has been diagnosed by a physician as mandating

treatment or . . . is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Hunt v. Uphoff, 

, 1224

(10th Cir. 1999) (internal quotation marks omitted). “The subjective [element] is

met if a prison official ‘knows of and disregards an excessive risk to inmate

health or safety.’” 

(quoting Farmer v. Brennan,

, 837 (1994)).

      In recommending summary judgment in favor of Dr. Krebs, the magistrate

judge determined that Mr. Allen had not adduced any evidence to satisfy the

subjective component. The magistrate judge further concluded that Mr. Allen’s

allegations of delay in medical care did not rise to the level of a constitutional

violation. As to Warden Zavaras, the magistrate judge recommended summary


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judgment in his favor because Mr. Allen failed to establish that he was entitled to

any relief under the Eighth Amendment and, furthermore, could not hold the

warden liable under § 1983 on a theory of supervisor liability. The district court

adopted the recommendations and granted summary judgment to defendants.

      We have reviewed the record, the parties’ briefs, and the applicable law.

We affirm the summary judgment for substantially the same reasons given by the

magistrate judge and the district court.

                 C. Judicial Bias and Amendment of Complaint

      Mr. Allen also contends that the magistrate judge was biased against him and

failed to allow him to amend his complaint. His bias argument is based solely on

adverse rulings. “Adverse rulings alone do not demonstrate judicial bias.” Bixler v.

Foster, 

, 762 (10th Cir. 2010). As for amendment of the complaint,

Mr. Allen does not assert that he requested leave to amend. We find no abuse of

discretion in the district court’s lack of an invitation to file an amended complaint.

Cf. Hall v. Witteman, 

, 868 (10th Cir. 2009) (finding no abuse of

discretion in refusing to allow amended complaint where plaintiff did not explain

how amendment would cure deficiencies in his complaint).




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                                 III. CONCLUSION

      The judgment of the district court is AFFIRMED. Although we grant

Mr. Allen’s motion to proceed IFP on appeal, we remind him of his obligation to

continue making partial fee payments until the filing fee has been paid in full.


                                               Entered for the Court


                                               Monroe G. McKay
                                               Circuit Judge




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