Vigil v. Morgan ( 2015 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    March 13, 2015
    TENTH CIRCUIT                 Elisabeth A. Shumaker
    Clerk of Court
    JOSEPH VIGIL,
    Plaintiff-Appellant,
    v.
    BENT COUNTY CORRECTIONAL
    No. 14-1443
    FACILITY CORRECTIONAL
    (D.C. No. 1:13-CV-01976-WJM-MJW)
    OFFICER (First Name Unknown)
    (D. Colo.)
    MORGAN; DOUG ROBERTS, Private
    Prison Monitor Unit, Medical; NURSE
    RAY RICE, Employee, Contractor of
    CDOC; MAURICE FAUVEL,
    Employee, Contractor of CDOC,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
    Joseph Vigil, an inmate in the custody of the Colorado Department of
    Corrections, brought this lawsuit under 42 U.S.C. § 1983 to recover damages for
    *
    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).
    The case is therefore ordered submitted without oral argument. 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    judgment is not binding precedent except under the doctrines of law of the case,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.
    his allegedly inadequate medical care at various CDOC facilities. A magistrate
    judge recommended that the district court grant one defendant’s motion to dismiss
    and the other defendants’ motion for summary judgment — recommendations that
    the district court adopted in full. Because Mr. Vigil never objected to these
    recommendations, our “firm waiver rule” generally blocks any appellate review of
    his contentions. See Morales-Fernandez v. INS, 
    418 F.3d 1116
    , 1119 (10th Cir.
    2005). Under the only exception relevant here, we would excuse this waiver if
    the “interests of justice” so required. See 
    id. But to
    proceed under this exception,
    Mr. Vigil would at least need to show plain error in the district court’s decision.
    See 
    id. at 1122;
    see also United States v. Olano, 
    507 U.S. 725
    , 732 (1993)
    (defining the plain error standard). Mr. Vigil has advanced no plain error
    argument, and we’re unable to discern any error at all (let alone one that is plain)
    on the record before us.
    To state a claim for inadequate medical care under the Eighth Amendment,
    Mr. Vigil must allege that prison officials exhibited “deliberate indifference” to
    his “serious medical needs.” Garrett v. Stratman, 
    254 F.3d 946
    , 949 (10th Cir.
    2001). As the district court noted, Mr. Vigil’s only allegation implicating
    defendant Morgan is that Morgan’s actions delayed Mr. Vigil’s access to
    treatment for hemorrhoids. To constitute deliberate indifference, however, this
    delay must have resulted in “substantial harm” — something along the lines of a
    “lifelong handicap, permanent loss, or considerable pain.” 
    Id. at 950.
    Because
    -2-
    Mr. Vigil never makes this latter allegation, the district court was correct to grant
    Morgan’s motion to dismiss.
    The district court similarly granted the remaining defendants’ motion for
    summary judgment because Mr. Vigil failed to create a genuine issue as to any
    deliberate indifference on their part. See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 247-49 (1986); Fed. R. Civ. P. 56(a). Along with their motion, the
    defendants submitted health records and affidavits documenting the care they
    gave Mr. Vigil for his hemorrhoids and back pain — care that included
    consultations, prescriptions, and even a surgery. In response, Mr. Vigil offered
    little but threadbare assertions that his treatment was delayed or somehow
    inadequate. We have long held, however, that “conclusory allegations standing
    alone will not defeat a properly supported motion for summary judgment.” White
    v. York Int’l Corp., 
    45 F.3d 357
    , 363 (10th Cir. 1995). We therefore agree with
    the district court that there was no genuine issue of material fact allowing Mr.
    Vigil’s Eighth Amendment claims to survive summary judgment.
    The judgment of the district court is affirmed. Mr. Vigil’s motion to
    proceed in forma pauperis is denied, and he is reminded of his obligation to pay
    the filing fee in full.
    ENTERED FOR THE COURT
    Neil M. Gorsuch
    Circuit Judge
    -3-
    

Document Info

Docket Number: 14-1443

Judges: Bacharach, Gorsuch, McKAY

Filed Date: 3/13/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024