Lemmons v. Houston , 633 F. App'x 664 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TOBIN DON LEMMONS,
Plaintiff - Appellant,
v. No. 15-6075
(D.C. No. 5:13-CV-00494-D)
MICHAEL HOUSTON; JEFF TROUTT; (W.D. Okla.)
JANET DOWLING; KATRYNA FRECH;
GENESE McCOY; SAMMIE KENYON;
JAMES HOWARD; DR. SHRINER;
JOSEPH SMASH; DOES; CHERIAN
KARUNAPUZHA; LORI IRWIN;
GREGG BROOKS; KENYA SACKETT;
FELICIA HARRIS; ROBERT PATTON;
JUSTIN JONES, in his individual capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
_________________________________
Tobin Don Lemmons, a state prisoner proceeding pro se, appeals from a
district court order granting summary judgment in favor of defendants
Drs. Karunapuzha and Troutt and dismissing the remainder of his claims against
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
numerous prison officials. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. Background
This is Mr. Lemmons’s twelfth appeal to this court. His current action is
based primarily on allegations that the defendants acted with deliberate indifference
to his medical needs in violation of the Eighth Amendment by not providing proper
medication for his seizure disorders. He also alleges that defendants failed to
respond appropriately to his requests to staff and violated his federal constitutional
and statutory rights as well as state law.
A magistrate judge issued three reports and recommendations pertinent to this
appeal. On February 2, 2015, the magistrate judge addressed Dr. Karunapuzha’s
motion for summary judgment and, based solely on the pleadings, determined that
Mr. Lemmons failed to state a claim against Dr. Karunapuzha under 42 U.S.C.
§ 1983. The magistrate judge also recommended dismissal without prejudice of
Mr. Lemmons’s state law claims against Dr. Karunapuzha.
On February 3, 2015, the magistrate judge issued a supplemental report and
recommendation. Having additionally considered matters beyond the pleadings,
including an affidavit of Dr. Karunapuzha, he now recommended granting summary
judgment in favor of Dr. Karunapuzha. According to the magistrate judge,
undisputed facts supported the following version of events. Dr. Troutt, the facility
physician, referred Mr. Lemmons to Dr. Karunapuzha, a neurologist, for a
consultation regarding his seizures. Dr. Karunapuzha saw Mr. Lemmons only once
2
and diagnosed him with two seizure disorders—psychogenic non-epileptic seizures
(or, “pseudoseizures”) and generalized tonic clonic seizures—and an anxiety
disorder. Mr. Lemmons reported to Dr. Karunapuzha that his pseudoseizures had
been kept under control with Klonopin in the past, but since being taken off it, his
pseudoseizures were occurring more frequently. Dr. Karunapuzha explained that
Klonopin was not prescribed for long-term management of seizures and
recommended that Mr. Lemmons receive other treatment for his pseudoseizures,
including psychological counseling and possibly medication to manage his anxiety
(which could be a trigger for his pseudoseizures).
Mr. Lemmons told Dr. Karunapuzha that his generalized tonic clonic seizures
had been successfully controlled with gabapentin (also referred to by the brand name
“Neurontin”) for nearly the past two years. Dr. Karunapuzha did not recommend any
changes to Mr. Lemmons’s treatment for generalized tonic clonic seizures. Although
his report indicated that Mr. Lemmons was currently taking gabapentin, it did not
indicate whether or not he should continue to do so. Mr. Lemmons was later taken
off gabapentin at the direction of Dr. Troutt, which caused a recurrence of his
generalized tonic clonic seizures.
The magistrate judge found nothing in the record to support the conclusion
that Dr. Karunapuzha had any authority over Mr. Lemmons’s treatment after the
one-time consultation or that Dr. Karunapuzha had a continuing duty to ensure
Mr. Lemmons received treatment that was consistent with his recommendations.
3
Thus, the magistrate judge determined Mr. Lemmons had not averred facts that
would defeat Dr. Karunapuzha’s motion for summary judgment.
The magistrate judge issued a third report and recommendation on
February 19, 2015, addressing a motion for summary judgment on behalf of the
remaining defendants. He recommended granting summary judgment in favor of all
the defendants except Dr. Troutt. The magistrate judge found that in light of
Mr. Lemmons’s history of seizures, withholding medication to control his seizures
posed an obvious and sufficiently serious risk of harm to warrant protection under the
Eighth Amendment. The magistrate judge stated that he could “think of no
explanation for Dr. Troutt’s actions other than his, either willfully or recklessly,
disregarding an excessive risk to Plaintiff’s health or safety.” R., Vol. 1, at 506.
Mr. Lemmons timely objected to the February 2 and 3 reports; Dr. Troutt
timely objected to the February 19 report. Mr. Lemmons’s objection to the
February 19 report was not timely and was therefore stricken by the district court.
The district court adopted the recommendation in the February 3 report and
granted summary judgment in favor of Dr. Karunapuzha. The court declined to adopt
the recommendations in the February 19 report as to Dr. Troutt but did adopt them as
to the other defendants. The district court concluded Dr. Troutt was entitled to
qualified immunity because Mr. Lemmons had not made any showing that Dr. Troutt
had acted with deliberate indifference to his medical needs. Therefore the court
granted summary judgment in favor of Dr. Troutt. Because Mr. Lemmons had not
timely objected to the February 19 report, the court dismissed the remaining federal
4
claims and declined to exercise supplemental jurisdiction over the state law claims,
which it dismissed without prejudice.
On appeal, Mr. Lemmons appears to argue that the district court erred by
striking his untimely objection to the February 19 report, by not adopting the
magistrate judge’s recommendation regarding his claim against Dr. Troutt, and by
declining to exercise pendent jurisdiction over his state law claims. To the extent he
attempts to raise other issues for the first time on appeal, he fails to argue that he
would be entitled to relief under the plain error standard of review, and we decline to
review such issues. See Martinez v. Angel Expl., LLC, 798 F.3d 968, 974 (10th Cir.
2015) (“We generally do not consider theories raised for the first time on appeal, and
because [the plaintiff] makes no argument how he can satisfy the plain error standard
of review, we go no further.”).
II. Untimely Objection
Mr. Lemmons argues that the district court erred by not giving him enough
time to respond to the magistrate judge’s February 19 report. We are not persuaded.
The magistrate judge’s February 19 report expressly advised Mr. Lemmons he
had until March 9, 2015, to object, otherwise he would waive the right to appellate
review of its factual and legal determinations. Mr. Lemmons does not contend that
he was uninformed about the deadline or its significance. On February 24, the
district court granted Mr. Lemmons’s motion for an extension of time to respond to
the February 2 and 3 reports and sua sponte extended the deadline for responding to
the February 19 report. The court stated it would not grant any further extensions
5
and that objections to all three reports were due by March 16. Mr. Lemmons
objected to the February 2 and 3 reports by March 16, but he did not file an objection
to the February 19 report until March 27. The district court struck it as untimely.
This circuit has adopted a firm waiver rule under which the failure to object to
the magistrate judge’s findings or recommendations waives appellate review of both
factual and legal questions. Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.
2004). Here, Mr. Lemmons was specifically advised of both the time period for
objecting and the consequences of failing to do so. See Duffield v. Jackson, 545 F.3d
1234, 1237 (10th Cir. 2008). The deadline had already been extended once, and
Mr. Lemmons did not timely request a further extension. Nor does he argue that the
“interests of justice” exception applies here. Cf. id. at 1238. We discern no error.
To the extent Mr. Lemmons asserts that the district court should have granted his
untimely motion for an extension, we find no abuse of the court’s discretion. See id.
at 1240.
III. Summary Judgment in Favor of Dr. Troutt
Mr. Lemmons argues that the district court erred by granting summary
judgment in favor of Dr. Troutt. We disagree.
We review de novo a grant of summary judgment on the basis of qualified
immunity, viewing the record in the light most favorable to the nonmoving party.
Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005). We construe a pro se party’s
pleadings liberally. Hammons v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003).
6
“When a defendant asserts qualified immunity at summary judgment, the
burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional
right and (2) the constitutional right was clearly established.” Martinez v. Beggs,
563 F.3d 1082, 1088 (10th Cir. 2009). The Eighth Amendment prohibits prison
officials from acting with “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “The test for deliberate
indifference is both objective and subjective.” Martinez, 563 F.3d at 1088. The
objective component requires that the harm be sufficiently serious to implicate the
Eighth Amendment, and for the purpose of resolving this appeal, we assume that the
harm alleged by Mr. Lemmons rises to that level.
“The subjective prong of the deliberate indifference test requires the plaintiff
to present evidence of the prison official’s culpable state of mind.” Mata, 427 F.3d
at 751. A plaintiff may prevail on this component by showing that the defendant
knew he faced a substantial risk and disregarded that risk by failing to take measures
to abate it. Martinez, 563 F.3d at 1089. However, an inadvertent failure to provide
adequate medical care—even if it rises to the level of medical malpractice—does not
necessarily amount to a constitutional violation. Estelle, 429 U.S. at 105-06;
Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006). Thus, Mr. Lemmons was
required to provide evidence supporting an inference that Dr. Troutt knew about and
disregarded a substantial risk of harm to his health and safety. See Mata, 427 F.3d
at 752.
7
Mr. Lemmons has adduced no evidence Dr. Troutt disregarded the risk posed
by his seizure disorders. The record shows Dr. Troutt saw Mr. Lemmons multiple
times and twice referred him to neurologists. Cf. id. at 758-59 (concluding that
evidence of a nurse’s complete refusal to assess or diagnose inmate’s medical
condition could amount to deliberate indifference so as to defeat summary judgment
in her favor). The first neurologist, Dr. Karunapuzha, recommended Mr. Lemmons
be referred to psychiatric services and psychological counseling to better manage his
pseudoseizures. Those referrals were made. Dr. Karunapuzha did not make a
recommendation one way or the other with respect to keeping Mr. Lemmons on
gabapentin, so there is no evidence to support the inference that Dr. Troutt
subjectively believed weaning Mr. Lemmons off gabapentin would be contrary to
Dr. Karunapuzha’s recommendations. Rather, Dr. Troutt’s notes indicate that he
made a good faith effort to devise a treatment plan based upon and consistent with
the neurologist’s recommendations. See id. at 760-61 (concluding that another nurse
was entitled to qualified immunity in part because her statements and notes
demonstrated she subjectively believed the inmate was not suffering from a serious
medical condition). Further, regardless of Mr. Lemmons’s repeated requests to be
put back on gabapentin, the Eighth Amendment does not give him a right to a
particular course of treatment. See Callahan, 471 F.3d at 1160.
Eight months after Mr. Lemmons saw Dr. Karunapuzha, Dr. Troutt referred
him to a second neurologist, who recommended restarting gabapentin. Soon
afterward, Dr. Troutt again prescribed gabapentin. Though the record also supports
8
the conclusion that Dr. Troutt may have misread Dr. Karunapuzha’s diagnosis and
misdiagnosed generalized tonic clonic seizures as pseudoseizures, Mr. Lemmons
adduces no evidence that Dr. Troutt was aware of these alleged mistakes. “A
negligent failure to provide adequate medical care, even one constituting medical
malpractice, does not give rise to a constitutional violation.” Perkins v. Kan. Dep’t
of Corrs., 165 F.3d 803, 811 (10th Cir. 1999). Because the record does not
demonstrate Dr. Troutt acted with deliberate indifference toward Mr. Lemmons’s
medical needs, the district court properly concluded he was entitled to qualified
immunity.
IV. Pendent Jurisdiction
Mr. Lemmons argues the district court erred by declining to address issues
related to his state law claims. However, “supplemental jurisdiction is not a matter
of the litigants’ right, but of judicial discretion.” Estate of Harshman v. Jackson
Hole Mtn. Resort Corp., 379 F.3d 1161, 1165 (10th Cir. 2004); see 28 U.S.C.
§ 1367(c)(3). After the district court resolved the claims against Drs. Karunapuzha
and Troutt, it dismissed Mr. Lemmons’s remaining claims. This was consistent with
the magistrate judge’s recommendations, and we discern no abuse of the court’s
decision.
V. Conclusion
The judgment is affirmed. Mr. Lemmons’s motion for leave to proceed
without prepayment of fees pursuant to 28 U.S.C. § 1915 is granted, and he is
9
reminded of his continued obligation to make partial payments until the filing fee is
paid in full.
Entered for the Court
Gregory A. Phillips
Circuit Judge
10