FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        February 9, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                 TENTH CIRCUIT
                        _____________________________________

 OLOYEA D. WALLIN,

               Plaintiff - Appellant,                          No. 07-1144
 v.                                                   (No. 03-cv-2319-WDM-MJW)
 CMI, KIM DEMPEWOLF, RYAN                                        (D. Colo.)
 BRADLEY, MARYE DEMING,
 AARON, JASON COLLIDGE, SANDRA
 CANNON-GRANT, CHARLES
 ABBOTT, MONIQUE M. MARTEL,
 R.N., F.N.P.,

               Defendants - Appellees.
                      _____________________________________

                             ORDER AND JUDGMENT*
                        _____________________________________

Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.**
                   _____________________________________

       This matter concerns Oloyea D. Wallin’s appeal from the district court’s sua

sponte dismissal of his 42 U.S.C. § 1983 complaint alleging that defendant Monique M.

Martel violated his Eighth Amendment rights by unnecessarily prescribing the drug

Antabuse while he was incarcerated. In Wallin v. CMI, 269 F. App’x 820 (10th Cir.


       *This order and judgment is not binding precedent except under the doctrines of
the 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.
       **
        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(G). The case is therefore
ordered submitted without oral argument.
2008) (“Wallin I”), we fully resolved the issues Mr. Wallin raised in his appeal with

respect to defendants CMI, Kim Dempewolf, Ryan Bradley, Marye Deming, Aaron,

Jason Collidge, Sandra Cannon-Grant, and Charles Abbott. We stayed consideration of

the appeal with respect to defendant Martel, however, because Ms. Martel filed a petition

for bankruptcy during the pendency of the appeal. The United States Bankruptcy Court

for the District of Colorado has now lifted the automatic stay with respect to this appeal.

See In re Monique M. Martel, No. 07-25103-SBB, (Bankr. D. Colo. Dec. 16, 2008). We

therefore lift the stay imposed in Wallin I, and resolve Mr. Wallin’s appeal with respect to

Ms. Martel. Because Mr. Wallin cannot show deliberate indifference to serious medical

needs or unnecessary and wanton infliction of pain, we affirm the district court’s

dismissal of his claim.

                                     I. DISCUSSION

       Our jurisdiction arises under 28 U.S.C. § 1291. We review the district court’s

grant of summary judgment de novo, viewing the evidence in the light most favorable to

the nonmovant. Hammons v. Saffle, 

, 1254 (10th Cir. 2003). “Summary

judgment is only appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.” Id.; Fed. R. Civ. P. 56(c). We

review procedural rulings solely for an abuse of discretion. See, e.g., United States v.

Gutierrez, 

, 1138 (10th Cir. 1995). Because Mr. Wallin has proceeded pro

se, we construe his pleadings and other papers liberally, applying a less stringent standard

than formal pleadings drafted by lawyers. Hall v. Bellmon, 

, 1110 (10th

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Cir. 1991).

       Mr. Wallin’s § 1983 complaint alleged that, while he was a resident of the

Centennial Community Transition Center serving a sentence for menacing, Ms. Martel

committed medical malpractice and violated his Eighth Amendment rights when she

prescribed, unnecessarily, the drug Antabuse for him. As a result, he alleges that he

suffered physical and emotional injuries.

       As the magistrate judge implied, Mr. Wallin allegations appear to belie his claim:

“‘Antabuse is a medication that is given to residents [of the Centennial Community

Transition Center] as a deterrent to individuals who have a current violent criminal

history involving substance abuse and are at an increased level of risk.’” Rec. vol. III,

doc. 297, at 12 (Mag. Judge’s Recommendations filed Feb. 1, 2007) (quoting Amended

Complaint). In addition, according to the record, Mr. Wallin’s complaints of headache,

fatigue, and dizziness appear to be commonly reported adverse side effects of taking

Antabuse. 

       “In order to state a cognizable claim [that he has been denied adequate medical

treatment in violation of the Eighth Amendment], a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle

v. Gamble, 

, 106 (1976). In Wilson v. Seiter, the Court clarified the Eighth

Amendment’s deliberate indifference standard under Estelle. 

, 297 (1991).

“[O]nly the ‘unnecessary and wanton infliction of pain’ implicates the Eighth

Amendment.” 

(emphasis in original). In Farmer v. Brennan, 511

                                             

(1994), the Court reiterated and emphasized the subjective requirement for

finding a constitutional violation. 

(requiring conscious disregard of a known,

“excessive” risk to inmate health or safety to establish deliberate indifference).

       The magistrate judge recommended that the district court (1) decline to exercise

supplemental jurisdiction over the state law claims against Ms. Martel, and (2) dismiss

the state law claims without prejudice. The magistrate judge appeared to read the

complaint against Ms. Martel to include only a state law claim of medical malpractice.

We agree with the district court that Mr. Wallin also purports to have asserted his Eighth

Amendment claim against all defendants, including Ms. Martel. The district court

concluded that “sua sponte dismissal [was] appropriate” as to Ms. Martel, because “it is

clear that [Mr.] Wallin can not prevail on this claim against . . . [Ms.] Martel.” Rec. vol.

III, doc. 318, at 7.

       We have carefully reviewed the appellate briefs, the magistrate judge’s

recommendation, the district court’s disposition, and the record on appeal. We have

conducted a de novo review of the district court’s dismissal of Mr. Wallin’s complaint

against Ms. Martel, and, for substantially the same reasons set forth by the magistrate

judge in his recommendation, and the district court in its order, we AFFIRM the district

court’s dismissal of Mr. Wallin’s § 1983 complaint. We agree with the district court’s

conclusion that Mr. Wallin cannot prevail on the facts he has alleged because he has

failed to demonstrate that Ms. Martel’s prescription of Antabuse approached deliberate

indifference to his medical needs.

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                                  II. CONCLUSION

      Accordingly, we affirm the district court’s dismissal of Mr. Wallin’s complaint

against Ms. Martel.




                                 Entered for the Court,


                                 Robert H. Henry
                                 United States Circuit Judge




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