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 1998-03

Riley v. Grasso ( 1998 )


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  •                                                                           F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 2 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GARY KEVIN RILEY,
Plaintiff-Appellant,
v.                                                   No. 97-6234
(D.C. No. 96-CV-1912)
ANTHONY GRASSO,                                      (W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff, an inmate of the State of Oklahoma appearing pro se, appeals
from the district court’s order entering judgment in favor of defendant in this
civil rights suit filed under
    42 U.S.C. § 1983
    . We exercise jurisdiction under
    28 U.S.C. § 1291
    , grant plaintiff’s motion to proceed in forma pauperis on appeal,
and affirm.
Plaintiff broke a bone in his right hand during his arrest for drunk and
disorderly behavior on November 3, 1994. He alleged that defendant, a police
officer, violated his Eighth and Fourteenth Amendment rights to be free from
cruel and unusual punishment by denying him medical care for seven hours
afterwards. In his verified complaint, plaintiff alleged that he complained to
defendant of pain in his right hand shortly after his arrest and again when he was
being placed in a cell, but that defendant ignored his injury. Seven hours later,
plaintiff noticed his hand had swollen, and complained again to someone else.
At that time, plaintiff was taken to a hospital for medical care. He was told by
medical personnel that his hand could not be placed in a cast because it was too
swollen, and surgery was required. He was told he could have had a cast placed
instead of surgery if he had received treatment when his hand was first broken.
Plaintiff contends his hand was permanently damaged as a result of not receiving
immediate medical treatment.
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Defendant filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The
magistrate judge granted plaintiff leave to proceed in forma pauperis in the
district court, treated defendant’s motion as one for summary judgment under
Fed. R. Civ. P. 56, and recommended that judgment be entered for defendant.
Plaintiff filed no objections to the magistrate judge’s recommendation, which the
district court adopted.
Because plaintiff was properly informed that his right to district court and
appellate review depended on his filing objections to the magistrate judge’s
recommendation, his failure to do so amounts to a waiver of appellate review.
See Fottler v. United States,
    73 F.3d 1064
    , 1065 (10th Cir. 1996). Even if he had
filed objections, as a pretrial detainee, his constitutional rights were violated only
if defendant knew of his serious medical need and was deliberately indifferent to
it. See Barrie v. Grand County,
    119 F.3d 862
    , 868-69 (10th Cir. 1997). “‘[A]n
official . . . acts with deliberate indifference if [his] conduct . . . disregards a
known or obvious risk that is very likely to result in the violation of a prisoner’s
constitutional rights.’”
    Id. at 869
     (quoting Berry v. City of Muskogee,
    900 F.2d 1489
    , 1496 (10th Cir. 1990)). Although defendant ignored plaintiff’s initial
complaints of pain, plaintiff was taken to the hospital for treatment as soon as he
noticed his hand had swollen and showed it to a police officer. We hold that the
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facts plaintiff alleged do not constitute deliberate indifference as a matter of law,
and plaintiff has failed to allege a constitutional violation.
Plaintiff’s motion to proceed on appeal in forma pauperis is GRANTED.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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