McLean v. Clough, 092607 FED10, 07-1094

Docket Nº:07-1094
Party Name:WILLIAM SAMUEL McLEAN, JR., Plaintiff-Appellant, v. DR. STEVEN R. CLOUGH, O.D., Defendant-Appellee.
Case Date:September 26, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

WILLIAM SAMUEL McLEAN, JR., Plaintiff-Appellant,


DR. STEVEN R. CLOUGH, O.D., Defendant-Appellee.

No. 07-1094

United States Court of Appeals, Tenth Circuit

September 26, 2007

         D. Colorado, D.C. No. 04-cv-02440-ZLW-MJW.

         Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.


         Robert H. Henry, United States Circuit Judge.

         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).

         William McLean, a federal prisoner proceeding pro se, appeals the district court's dismissal of his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971). Mr. McLean 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 Mr. McLean 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. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

         I. BACKGROUND

         Mr. McLean has epilepsy, and, according to his complaint, has suffered seizures that trigger stroke-like symptoms. Before the actions underlying this complaint, Mr. McLean suffered such a seizure on July 8, 2002.

         On March 16, 2004, while housed at the United States Penitentiary, Administrative Maximum ("ADX"), in Florence, Colorado, Mr. McLean saw Dr. Clough for an eye appointment. Mr. McLean contends that Dr Clough had reviewed his medical records, which explained his history of epilepsy and stroke-like symptoms. Mr. McLean 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 Mr. McLean. The computerized test, which involves flashes on a computer screen, measures peripheral vision. Mr. McLean contends that while taking the test on his left eye, he recalls saying, "I can't do this" and laying his head in his lap and hands. Rec. vol. I, doc. 3, at 4-D.

         Mr. McLean next recalls waking up from a seizure and being treated by ADX's clinical director Dr. Lawrence L. Leyba. Mr. McLean contends that the seizures resulted in stroke-like symptoms to his left side, including the requirement of a left leg brace,...

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