F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 17 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    WAYLON EUGENE MAY,

                Plaintiff-Appellant,

    v.                                                   No. 99-6267
                                                    (D.C. No. 98-CIV-633)
    OKLAHOMA DEPARTMENT OF                              (W.D. Okla.)
    CORRECTIONS; DENNIS COTNER;
    JUDY WAKEN; K. RADER, RN;
    GRIFFIN MEMORIAL HOSPITAL;
    JOHN DOE, MD #1; JOHN DOE, MD
    #2; JOHN DOE, MD #3;
    C. MONTALVO, RN; JANE DOE,
    PA,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , 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). Therefore,


*
      This order and judgment is not binding precedent, except under the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.
appellant’s request for oral argument is denied, and the case is ordered submitted

without oral argument.

      Plaintiff Waylon Eugene May appeals the district court’s order adopting

the magistrate judge’s report and recommendation, granting defendants’ motions

to dismiss and for summary judgment on his 42 U.S.C. § 1983 complaint.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


                                   Background

      On Saturday, May 11, 1996, May, an inmate at the Bill Johnson

Correctional Center (BJCC), injured his knee in a softball game. The injury was

evaluated by a nurse from the BJCC medical staff, who treated the knee and

instructed May to return on Monday for reassessment. Defendant Montalvo saw

May on the following Monday, and after noting that he was probably suffering

from a meniscal tear, treated the knee and recommended that he be seen at the

orthopedic clinic as soon as possible.

      On May 24, May was examined at Griffin Memorial Hospital, where the

examining physician diagnosed a Grade II medial collateral sprain and

recommended that May be placed in a hinged knee brace and undergo six weeks

of range of motion stretching exercises. The BJCC refused to issue May a hinged

knee brace because it contained metal parts, but instead issued May a neoprene




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knee brace. On follow-up, medical staff notes indicate that May’s knee was

healing well, and he was reminded to do his exercises.

      On September 13, 1996, May was seen a second time at Griffin Memorial

Hospital. Following this examination, the physician again prescribed a hinged

knee brace and exercises, but released May to return to work with certain weight

lifting restrictions. The physician did indicate that orthoscopy might be indicated

in the future. May filed several requests for a hinged knee brace rather than the

neoprene knee brace, but his requests were denied for security reasons.

      In January 1997, he again presented at the BJCC medical center with knee

pain. He stated that he twisted the knee while jogging two weeks earlier. He was

prescribed Naprosyn, but refused to take it. He filed a request that his knee be

surgically repaired, but was advised that a request for surgical repair would have

to come from Griffin Memorial Hospital. Although May was offered physical

therapy three times a week during late 1996 and early 1997, he missed a number

of appointments. His final appointment at Griffin Memorial Hospital on April 25,

1997, revealed no abnormalities in the knee.

      May brought this action against defendant Oklahoma Department of

Corrections and a number of other defendants seeking money damages for

violations of his constitutional rights. In his complaint, May alleged that the

BJCC’s refusal to issue him a hinged knee brace constituted deliberate



                                         -3-
indifference to his serious medical needs. He also asserted an equal protection

claim based on his allegation that another inmate had the use of a hinged brace.

May avered that he had not received adequate medical care and physical therapy

following his knee injury.

       Following consideration of defendants’ motions and May’s responses, the

magistrate judge issued findings and recommended that May’s complaint against

defendants Waken, Griffin Memorial Hospital, and the John and Jane Does be

dismissed for defective service. She further recommended that the summary

judgment motion of defendants Montalvo, Cotner, and Rader be granted.

Following de novo review of May’s objections, the district court adopted the

report and recommendation of the magistrate judge in its entirety.

       On appeal, Mr. May raises issues asserting (1) that the district court erred

in dismissing without prejudice his complaint as to certain defendants for failure

to effect timely service of process, and (2) that the district court erred in granting

summary judgment to the remaining defendants on Mr. May’s claims of deliberate

indifference to his serious medical needs.


                                         Discussion

                                  A. Defective Service

       Dismissal of a complaint for failure to effect timely service will be set

aside only for an abuse of discretion.     See Espinoza v. United States   , 

,


                                            -4-
840 (10th Cir. 1995). Fed. R. Civ. P. 4(m) provides for dismissal of an action as

to a defendant who has not been served within 120 days after the filing of the

complaint. Here, May filed his complaint on May 6, 1998. On September 9,

1998, the magistrate judge issued an order advising May that his 120-day time

limit for effecting service had expired, but granting him a permissive extension

until September 24, 1998, to effect service or show good cause as to why service

had not been effected. The order informed May that failure to do either would

subject his complaint to dismissal. May filed returns on defendants Montalvo,

Rader, and Cotner, but did not accomplish service on the other defendants. May

offered the district court no explanation for his failure to serve Griffin Memorial

Hospital and the John and Jane Does. Therefore the magistrate judge correctly

recommended that all claims against these defendants be dismissed.

      In his response to defendant Waken’s motion to dismiss for defective

service, May asserted that, because the district court made him pay a full filing

fee, he had no funds to pay a process server, and therefore left Waken’s complaint

with a mail room employee.   1
                                 Pursuant to Rule 4(m), a district court should take

a two-step approach to extensions of time for service. The court should first

inquire whether the plaintiff has established good cause for failing to effect



1
       In an affidavit attached to her special appearance and motion to dismiss,
Waken asserted that she had not been at BJCC for several months due to an
injury, and therefore did not receive notice of May’s lawsuit until January 1999.

                                           -5-
timely service. If the plaintiff has established good cause, the court must extend

the time for service.   See Espinoza , 52 F.3d at 841. “If the plaintiff fails to show

good cause, the district court must still consider whether a permissive extension

of time may be warranted.”    2
                                  

whether May had shown good cause for his failure to serve

Waken, the magistrate judge considered whether, if the court granted May an

extension of time to effect service, the statute of limitations would bar refiled

claims against Waken. The magistrate judge found that, even though it appeared

that some of the claims against Waken would be barred if the complaint were

refiled, that alone did not constitute good cause. Although a statute of limitations

problem counsels against dismissal,     see Fed. R. Civ. P. 4(m) advisory

committee’s note (“Relief may be justified . . . if the applicable statute of

limitations would bar the refiled action.”), this factor alone is not determinative

of a finding of good cause,   see, e.g., Despain v. Salt Lake Area Metro Gang Unit       ,

, 1439 (10th Cir. 1994). Here, Waken did not retrieve the complaint


2
       In December 1993, amendments to Rule 4 went into effect that
“substantially changed the scope of discretion to be exercised by the district
courts under [Rule 4].” Espinoza , 52 F.3d at 840. Before the 1993 amendment,
Rule 4(j) permitted the district court to extend the time for service of the
summons and complaint only upon a showing of good cause. In the absence of
such a showing, the district court had to dismiss the case. The 1993 amendments
broadened the district court’s discretion. Rule 4(j) was recodified as Rule 4(m),
and amended to permit the district court to extend the time for service even if the
plaintiff cannot establish good cause for the failure to effect timely service.
See Espinoza , 52 F.3d at 840-41.

                                           -6-
from her BJCC mailbox until 213 days after May filed his amended complaint.

Even if placing the complaint in Waken’s mailbox constituted good service, it

was too late. See 

“where service was never accomplished, in

contrast to having been merely defective in form, the court did not abuse its

discretion in refusing to allow plaintiffs a second chance to effect service”).

We note that it was May’s responsibility to monitor the progress of service and to

take reasonable steps to assure that Waken was timely served.     See Cox v. Sandia

Corp. , 

, 1125 (10th Cir. 1991).

       The magistrate judge concluded that May failed to show good cause

sufficient to warrant another extension of time under Rule 4(m). We agree.

“‘[G]ood cause’ determinations entail discretionary conclusions by the district

court and will not be disturbed absent an abuse of discretion.”    Hendry v.

Schneider , 

, 449 (10th Cir. 1997) (quotation omitted). “The trial

court abuses its discretion in determining whether there is ‘good cause’ if its

decision is arbitrary, capricious, or whimsical.”    

conclude that the

magistrate judge’s decision to recommend dismissal on May’s claims against

Waken for failure to effect timely service was neither arbitrary, capricious, or

whimsical.

       While we must construe May’s pro se pleadings liberally,     see Riddle v.

Mondragon , 

, 1202 (10th Cir. 1996), his pro se status does not



                                             -7-
excuse him from the obligation “to comply with the fundamental requirements of

the Federal Rules of Civil and Appellate Procedure.”         Ogden v. San Juan County ,

, 455 (10th Cir. 1994);     Nielsen v. Price , 

, 1277 (10th Cir.

1994) (citing several cases for principle that pro se parties must comply with

same procedural rules that govern all other litigants). Therefore, the district

court’s dismissal of the action against Waken for untimely service of process was

not an abuse of discretion.

                                 B. Summary Judgment

       Next, May asserts that the district court erred in granting the motion of

Cotner, Rader, and Montalvo for summary judgment on May’s Eighth Amendment

claims. We review the grant of summary judgment de novo, applying the same

legal standard as the district court under Fed. R. Civ. P. 56(c).     See Simms v.

Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs           ., 

, 1326 (10th Cir.),    cert. denied 

(1999). Summary judgment

is appropriate only when “there is no genuine issue as to any material fact and . . .

the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). In applying this standard, “we view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party.”        Simms ,

165 F.3d at 1326.

       Because “[a] verified pleading may itself be treated as an affidavit if the

facts asserted are within the pleader’s personal knowledge,”        Jaxon v. Circle K

                                             -8-
Corp ., 

, 1139 n. 1 (10th Cir. 1985), we treat the factual allegations

in May’s amended complaint as true and construe them in the light most favorable

to him. Nonetheless, if May failed to establish the existence of an element

essential to his case on which he bore the burden of proof at trial, we will

determine that there was no genuine dispute over material facts.        See Celotex

Corp. v. Catrett , 

, 322-23 (1986).

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

constitutes a violation of the Eighth Amendment.        Estelle v. Gamble , 

,

104 (1976). “However, ‘a complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment.’”          Green v. Branson , 

,

1303 (10th Cir. 1997) (quoting Estelle , 429 U.S. at 106). In addition, neither

medical malpractice nor disagreement with medical judgment constitutes an

Eighth Amendment violation.        See 

for determining whether the

government has shown deliberate indifference to the medical needs of a prisoner

has two components: “‘an objective component requiring that the pain or

deprivation be sufficiently serious; and a subjective component requiring that the

offending officials act with a sufficiently culpable state of mind.’”      Mitchell v.

Maynard , 

, 1444 (10th Cir. 1996) (quoting          Miller v. Glanz , 

, 1569 (10th Cir. 1991)).



                                             -9-
         May alleges that he was not adequately treated for his knee injury, that he

was not adequately supervised during physical therapy, that he had to request

a recheck, and that he was not issued the hinged brace recommended by the

physician at Griffin Memorial Hospital. He contends that when he attended his

physical therapy sessions, the staff “just gave [him] some photocopies and a

rubber strap” and “[t]old [him] to read it and do the exercises.” Appellant’s Br.

at 17.

         Even assuming that all of May’s contentions are true, his allegations reflect

nothing more than his general disagreement with the course of his medical

treatment. This, at most, involves a claim of medical malpractice or negligence

that is not actionable under the Eighth Amendment.      See Estelle , 429 U.S. at 106;

see, e.g., Tyler v. Sullivan , No. 95-1232, 

, **2 (10th Cir. April

22, 1996) (following Olson v. Stotts , 

, 1477 (10th Cir. 1993) to hold

“[a] difference of opinion as to the   kind and timing of medical treatment does not

rise to the level of an Eighth Amendment violation”) (emphasis added)

(unpublished); cf. White v. Colorado , 

, 367 (10th Cir. 1996)

(affirming summary judgment because “plaintiff’s allegations of denial of, or

delay in providing, diagnostic evaluation and other means of treatment . . .

implicate only defendants’ negligence and do not establish the more culpable state

of mind necessary to support claims of the denial of a constitutional right”).



                                           -10-
Further, plaintiff’s vague and conclusory allegations do not indicate how the

alleged deprivation or delay “exacerbate[d] [his] medical problems” or “result[ed]

in a lifelong handicap or a permanent loss.”          Hunt v. Uphoff , 

, 1224

(10th Cir. 1999).

       Finally, we agree with the magistrate judge that May failed to assert a

redressable equal protection claim in alleging that another inmate was allowed to

have a hinged brace. May is not a member of a suspect class nor did he assert the

deprivation of a fundamental right.        See Vacco v. Quill , 

, 799 (1997)

(holding that unless a distinction burdens a fundamental right or targets a suspect

class, courts will uphold it if it is rationally related to a legitimate end);     accord

Tonkovich v. Kansas Bd. of Regents        , 

, 532 (10th Cir. 1998).

       It is clear that the BJCC’s denial of May’s request for a hinged brace

served a legitimate governmental purpose, that of preventing the kind of security

problems created by having metal objects available to inmates. The BJCC

asserted that the other inmate arrived at the facility with the hinged brace.

Be that as it may, the BJCC has the right to make a discretionary decision to issue

a hinged brace to one inmate while denying the same to another.              See White v.

Colorado , 

, 1234 (10th Cir. 1998) (upholding a classification if it is

rationally related to a legitimate government interest),         cert. denied , 

                                               -11-
(1999). Consequently, the BJCC’s refusal to issue a hinged brace to May did not

violate his right to equal protection of the law.


                                     Conclusion

      We have carefully reviewed the parties’ briefs and the record on appeal.

We are unpersuaded by May’s assertions of error. His claims against unserved

defendants were properly dismissed and his disagreement with the timing and

manner of his treatment was insufficient to support a constitutional claim.

Therefore, the district court properly granted defendants’ motions to dismiss and

for summary judgment.   3
                            The judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED. Plaintiff is reminded that he is




3
        We note that the magistrate judge alternatively recommended dismissal of
the claims against defendant Cotner for lack of personal participation.    See Report
& Recommendation at 14 n.6 ( citing 

) (holding that a claim
of personal participation of a defendant is essential in a § 1983 civil rights
action)). May does not challenge this finding on appeal.

                                          -12-
obligated to continue making partial payments of the filing fee until the entire fee

has been paid.



                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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