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)
         v.                                    (D.C. No. 04-cv-02440-ZLW -M JW )

    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   This order and judgment is not binding precedent except under the doctrines of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, 

, 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 stroke-

like 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




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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.” 

doc. 115, ex. B. Dr. Politzer concluded that “D r.


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Clough . . . provided appropriate medically indicated care, and he met [the]

standard of care.” 

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. 

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.,

, 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, 

, 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. 

“[A]

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prisoner must allege acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” 

      The test for constitutional liability of prison officials “‘involves both an

objective and a subjective component.’” M ata v. Saiz, 

, 751 (10th

Cir. 2005) (quoting Sealock v. Colorado, 

, 1209 (10th Cir. 2000)).

To satisfy the objective component, a plaintiff must show that the “medical need

is sufficiently serious,” M 

, “and that the D efendant[’s]

[inadequate care or] delay in meeting that need caused him substantial harm[.]”

Oxendine v. Kaplan, 

, 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, 

, 1224 (10th Cir.1999) (quoting Ramos

v. Lam m, 

, 575 (10th Cir. 1980) (further quotation omitted)). “The

substantial harm requirement may be satisfied by lifelong handicap, permanent

loss, or considerable pain.” M 

(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.


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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, 

, 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.



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                                 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




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