JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia, on the briefs filed by the parties and by arnica curiae, whо was appointed by this court to present arguments in support of appellant Enrique Acosta, and on the oral arguments of counsel for appellee and arnica curiae.
ORDERED AND ADJUDGED that the district court’s order and judgment entered April 24, 2012, be affirmed.
Plaintiff-аppellant Enrique Acosta, a federal prisoner, suffers from a degenerative elbow injury sustained in a car accident prior to his incarceration. Complaining of significant pain and restricted movement, Acosta has repeatedly sought reparative surgеry from the Bureau of Prisons. In July 2006, a regional Bureau of Prisons doctor indicated that a medical transfer for further evaluation and treatment would be appropriate, but the defendant prison officials, Dr. Michael Nelson and Dr. Betzy Hernandez-Ricoff, denied the transfer requеst, continuing Acosta’s “conservative treatment” of painkillers instead. Acosta subsequently filed suit claiming that the prison officials’ denial оf reparative surgery violated the Eighth Amendment to the U.S. Constitution. The district court granted summary judgment for the prison officials, and we affirm.
The dispоsitive question is whether Acosta has come forth with evidence of a disputed question of material fact concerning whether eithеr defendant acted with “ ‘deliberate indifference’ to a substantial risk of serious harm” in denying him surgery. See Farmer v. Brennan,
Even under that generous standard of review, a reasonable jury could find, аt most, that the prison officials acted with negligence, which is insufficient to establish an Eighth Amendment violation. See Wilson v. Seiter,
Dr. Hernandez-Ricoff, who subsequently considered Acosta’s transfer request, denied it after reviewing the newly provided information that shоwed that Acosta’s condition was stable — no material change in his range of motion had occurred — and that the disability did not prevent Aсosta from performing necessary daily activities. To be sure, in his opposition to summary judgment, Acosta asserted that, in fact, his elbow сondition impedes a number of routine activities. But what is critical here is that nothing in the record shows that either defendant knew of those functional limitations in making his or her decision, let alone that he or she knew of and disregarded “an excessive risk” to the plaintiffs health or safety. Farmer v. Brennan,
Neither is there any material question of fact on this reсord as to whether Dr. Nelson and Dr. Hernandez-Ricoff acted within their authority in denying Acosta’s medical transfer request. The relevant Bureau оf Prisons Program Statement, numbered P6270.01, explicitly gave them the authority to consider, inter alia, “[urgency of need” and “Bureau institution capabilities” in denying the transfer request. Id. at ¶ 1, reprinted in Appellee’s Br.,
Acosta and the arnica curiae raise three procedural objections to the grant of summary judgment, all of which are foreclosed. First, they argue that law of the case precludes summary judgment because, at an earlier stage in the case, the Eleventh Circuit ruled that Acosta’s complaint could not be dismissed for failure to state a claim. See Acosta v. Watts,
Second, they argue that additional discovery was needed before summary judgment could be decided. But the district court afforded Acosta all of the notice required to be given to pro se plaintiffs, specifically alerting Acosta to the effect of a motion for summary judgment and the consequences of his failure to respond. See Neal,
Third, because the government expressly moved for summary judgment in the alternative and because Acosta was given full notice that summary judgment would be decided, no improper conversion of a motion to dismiss into a motion for summary judgment occurred. See Colbert v. Potter,
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of аny timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cm. R. 41.
Notes
. Rena Andoh was appointed by this court to serve as arnicа curiae in support of appellant. She has ably discharged her duties, and the court appreciates her service.
. Because summary judgment was properly granted for Acosta’s failure to support his deliberate indifference claim, we need not decide whether Acosta sufficiently raised a question of material fact as to the severity of his medical condition, whether defendants are entitled to qualified immunity, or whether Acosta could have obtained injunctive relief in addition to or in lieu of money damages.