Fellon v. Lampert ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 4, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KENNETH J. FELLON,
Plaintiff - Appellant,
v. No. 15-8016
(D.C. No. 2:14-CV-00100-ABJ)
ROBERT O. LAMPERT, Wyoming (D. Wyo.)
Department of Corrections Director,
in his individual and official
capacities; STEVE HARGETT,
Wyoming Department of Corrections
Medium Correctional Institution
Warden, in his individual and
official capacities; MELANIE
MARTINEZ-ELLIS, Wyoming
Department of Corrections Medium
Correctional Institution Health
Service Administrator, in her
individual and official capacities;
EDDIE WILSON, Wyoming
Department of Corrections State
Penitentiary Warden, in his
individual and official capacities;
JEFF SHANAHAN, former
Wyoming Department of Corrections
State Penitentiary Health Services
Administrator, in his individual and
official capacities; KURT
JOHNSON, Wyoming Department of
Corrections Medium Correctional
Institution Health Services Regional
Manager, in his individual and
official capacities; DOCTOR
YOUNG, Wyoming Department of
Corrections State Penitentiary
Health Services Physician, in his
individual and official capacities;
NURSE ROTH, Wyoming
Department of Corrections State
Penitentiary Nurse, in her individual
and official capacities; NURSE
OAKLEY, Wyoming Department of
Corrections Medium Correctional
Institution Nurse, in her individual
and official capacities; CORIZON
HEALTH SERVICES, INC.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Mr. Kenneth Fellon is a Wyoming prisoner who suffered from
chronic pain in his shoulder and arm. He sought and obtained medical care
from a private entity, Corizon Health, Inc. Mr. Fellon grew dissatisfied
with the medical care and sued under 42 U.S.C. § 1983, alleging violation
of the Eighth Amendment and negligence by state officials, Corizon
Health, and Corizon employees. The state officials moved for dismissal,
and the Corizon defendants moved for summary judgment. The district
*
The parties do not request oral argument, and the Court has
determined that oral argument would not materially aid our consideration
of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
2
court granted both motions, and Mr. Fellon appeals. On appeal, we address
three issues:
1. Did Mr. Fellon adequately allege personal participation by
the state officials? (No) Mr. Fellon sued the state officials not
only in their official capacities, but also in their personal
capacities. These defendants could incur personal liability only
if they participated in the alleged constitutional violations. In
the complaint, however, Mr. Fellon alleged that the medical
care was entrusted to a private business, Corizon Health. As a
result, the district court properly dismissed the personal-
capacity claims against the state officials.
2. Did the evidence create a genuine issue of material fact on
deliberate indifference to Mr. Fellon’s medical needs? (No)
The Eighth Amendment prohibits deliberate indifference to a
prisoner’s serious medical needs. Officials are deliberately
indifferent when they disregard medical needs, not simply when
they fail to provide the type of medical care the prisoner thinks
he needs (even if he is right). The summary judgment record
reflected numerous medical examinations, where Corizon
medical staff treated Mr. Fellon’s pain. In light of this
undisputed record of treatment, the district court properly
granted summary judgment to the Corizon defendants. 1
3. Did Mr. Fellon present a reason to question the district
court’s ruling on the state-law claims? (No) In the
complaint, Mr. Fellon mentions negligence and state tort law.
For the state-law claims against the state officials, the district
court ordered dismissal, holding that the state officials enjoy
immunity under the Wyoming Governmental Claims Act. For
the state-law claims against the Corizon defendants, the court
granted summary judgment to these defendants on the ground
that they are protected from liability under the Wyoming
Medical Review Panel Act. On appeal, Mr. Fellon argues the
defendants were negligent, but does not address the district
1
In their response brief, the state officials also defend the district
court’s rulings on Eleventh Amendment immunity. But Mr. Fellon has not
challenged the ruling.
3
court’s rationale. In these circumstances, we have no reason to
disturb the district court’s rulings on the state-law claims.
Based on our conclusions on the three issues, we affirm the dismissal and
award of summary judgment.
1. Personal-Capacity Claims Under § 1983 Against the State
Officials: Mr. Fellon has not alleged a factual basis to infer
personal participation of the state defendants.
The state defendants could incur personal liability only if they
participated in the alleged constitutional violation. Duffield v. Jackson,
545 F.3d 1234, 1238 (10th Cir. 2008). Relying on this requirement, the
federal district court dismissed the personal-capacity claims against the
state defendants. This ruling was correct.
In reviewing the dismissal, we engage in de novo review. Hogan v.
Winder, 762 F.3d 1096, 1104 (10th Cir. 2014). This review requires us to
determine whether Mr. Fellon provided enough facts in the complaint to
state a facially plausible claim. Id.In the complaint, Mr. Fellon complains about the medical treatments
provided by the Corizon medical staff. But Mr. Fellon acknowledges in the
complaint that the medical care was entrusted to Corizon Health. The state
defendants participated only by handling administrative complaints about
the treatment provided by Corizon Health. But the handling of these
administrative complaints would not constitute personal participation for
purposes of personal liability. Stewart v. Beach, 701 F.3d 1322, 1328 (10th
4
Cir. 2012). Thus, the district court properly dismissed the personal-
liability claims against the state officials.
2. § 1983 Claims Against the Corizon Defendants: Mr. Fellon has
not presented evidence creating a genuine issue of material fact
on Corizon’s deliberate indifference to his medical needs.
The remaining claims are against Corizon and its employees. These
defendants obtained summary judgment based on evidence of their medical
attention. We agree with this ruling.
Under the Eighth Amendment, the Corizon defendants would incur
liability only if they knew of an excessive risk to Mr. Fellon’s serious
medical needs and disregarded that risk. Sealock v. Colorado, 218 F.3d
1205, 1209 (10th Cir. 2000).
In assessing Mr. Fellon’s evidence under this standard, we must
apply the standard for summary judgment. The district court had to grant
summary judgment if the Corizon defendants showed the absence of a
genuine issue of material fact and their entitlement to judgment as a matter
of law. Id. To apply this standard, the district court had to view the
evidence and reasonable inferences in the light most favorable to Mr.
Fellon. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Under this standard, there was no genuine issue of medical fact
because the undisputed evidence reflected extensive medical treatment. For
example, Dr. Young and Dr. Johnson prescribed numerous medicines to
treat the pain: Lyrica, Naproxen, Baclofen, Hydrocodone, Tegretol, and
5
Gabapentin. The treatment regimen included x-rays, use of a sling and arm
compression sleeve, and physical therapy.
Mr. Fellon complains about the delays and infrequency in his
treatment. But the undisputed evidence demonstrates that he was examined
regularly, usually every month, and the only gap in his pain medication
was during a brief time in which Mr. Fellon was housed in Nebraska on
another conviction. Mr. Fellon has not presented evidence of any
additional pain or substantial harm from the alleged delays or frequency of
his treatment. See Sealock, 218 F.3d. at 1210 (“Delay in medical care only
constitutes an Eighth Amendment violation where the plaintiff can show
the delay resulted in substantial harm.”).
Mr. Fellon complains that the doctors should have ordered surgery.
But doctors rejected surgery as an option, fearing that surgery could
exacerbate Mr. Fellon’s nerve damage and destroy the ability to use his
arm and shoulder. Mr. Fellon disagrees with this rationale, but that
disagreement does not support an Eighth Amendment claim. Gee v.
Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010).
In light of the undisputed evidence of treatment, the district court
correctly awarded summary judgment to the Corizon defendants.
6
3. State Law Claims Against All Defendants: Mr. Fellon has not
presented a reason to overturn the rulings on the state-law
claims.
In the complaint, Mr. Fellon referred to negligence and state tort law.
The district court liberally interpreted these references as independent
claims. But the district court concluded that these claims were invalid,
relying on the Wyoming Governmental Claims Act and the Wyoming
Medical Review Panel Act. On appeal, Mr. Fellon argues the defendants
were negligent. But the district court did not question the sufficiency of
the allegations on negligence. Instead, the court concluded that the
defendants could not incur liability for negligence because of the Wyoming
Governmental Claims Act and the Wyoming Medical Review Panel Act.
Mr. Fellon does not question the district court’s rationale, and we have no
reason to disturb the rulings on the state-law claims.
4. Disposition
We affirm, upholding the district court’s dismissal of the claims
against the state defendants and award of summary judgment to the
Corizon defendants.
Entered for the Court
Robert E. Bacharach
Circuit Judge
7