Young v. Eskestrand ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 28, 2010
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
MICHAEL GENE YOUNG,
Plaintiff-Appellant,
v. No. 10-1070
(D.C. No. 1:07-CV-02041-CMA-BNB)
KELLY WASKO, RN; THEODORE (D. Colo.)
LAWRENCE, P.A.; PATTY
BEECROFT, M.D.; DEBRA HOWE,
RN,
Defendants-Appellees,
THOMAS A. ESKESTRAND, M.D.;
ORVILLE NEUFELD, M.D., PHD.,
DO.; R. LINDSEY LILLY, JR., M.D.;
LOUIS CABLING, M.D.; GARY A.
GO, M.D.; TEJINDER SINGH, P.A.;
DANNY ENGLUND, M.D.; JOSEPH
WERMERS, M.D.; JOHN DOE AND
JANE DOE 1-50,
Defendants.
ORDER AND JUDGMENT *
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before TACHA, ANDERSON, and KELLY, Circuit Judges.
Michael Gene Young, a prisoner appearing pro se, appeals the district
court’s grant of summary judgment to defendants Kelly Wasko, RN; Theodore
Lawrence, P.A.; Patty Beecroft, M.D.; and Debra Howe, RN, on three of his
42 U.S.C. § 1983 claims. Mr. Young claimed these defendants-appellees were
deliberately indifferent to his serious medical needs and therefore violated his
Eighth-Amendment right to be free from cruel and unusual punishment. See
Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (holding that prison
officials violate an inmate’s Eighth Amendment rights when they are
“deliberately indifferent to [his] serious medical needs.”).
We note first that the magistrate judge in this case made two
Recommendations. The first recommended the dismissal of all of Mr. Young’s
claims with the exception of Claim One against Nurse Wasko and P.A. Lawrence,
Claim Two against Nurse Wasko and Dr. Beecroft, and Claim Three against
Nurse Howe (First Recommendation). Mr. Young filed no objection to the First
Recommendation and the district court adopted and affirmed it in an order filed
May 20, 2009. The second Recommendation, filed January 11, 2010,
recommended the dismissal of the remaining claims (Second Recommendation).
Mr. Young filed an objection to the Second Recommendation, but argued only
that he believed the magistrate judge had failed to review his submitted exhibits
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and asked for the court to order the clerk to locate his exhibits. The district court
adopted and affirmed the Second Recommendation and entered its judgment
dismissing Mr. Young’s complaint and action. Mr. Young appealed.
Our jurisdiction over Mr. Young’s appeal is under 28 U.S.C. § 1291.
This court reviews an award of summary judgment de novo,
viewing the record in the light most favorable to the non-moving
party. Moreover, this court construes a pro se party’s pleadings
liberally. Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56.
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir.) (quotation, citation, and
bracket omitted), cert. denied, 131 S. Ct. 469 (2010). 1
Mr. Young’s appellate brief makes clear that he is appealing the district
court’s adoption and affirmation of the Second Recommendation. He argues that
summary judgment was inappropriate because genuine issues of material fact
existed in regard to his claims and that the magistrate judge–and, subsequently,
the district court–erred by relying on an affidavit filed by the Chief Medical
Officer of the Colorado Department of Corrections.
But Mr. Young’s objection to the Second Recommendation complained
only that he did not believe the magistrate judge examined all of Mr. Young’s
1
This court is aware that Rule 56 has recently been amended, effective
December 1, 2010. See Fed. R. Civ. P. 56 advisory committee’s note. We have
applied, and refer to herein, the version of the rule that was in effect at the time
summary judgment was granted.
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exhibits. “This circuit has adopted a firm waiver rule when a party fails to object
to the findings and recommendations of the magistrate judge.” Casanova v.
Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (quotation and brackets omitted).
A failure to raise an issue in a timely objection to a magistrate judge’s
recommendation results in a waiver of that issue. See Port City Props. v. Union
Pac. R.R. Co., 518 F.3d 1186, 1190 n.1 (10th Cir. 2008). “There are two
exceptions when the firm waiver rule does not apply: when (1) a pro se litigant
has not been informed of the time period for objecting and the consequences of
failing to object, or when (2) the ‘interests of justice’ require review.” Duffield v.
Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quotation omitted).
Here, the Second Recommendation specifically informed Mr. Young that a
failure to file specific, written objections would result in waiver of appellate
review. As to the “interests of justice” exception, “[a]mong the factors this court
has considered in determining whether to invoke the interests-of-justice exception
are [1] a pro se litigant’s effort to comply, [2] the force and plausibility of the
explanation for his failure to comply, and [3] the importance of the issues raised.”
Casanova, 595 F.3d at 1123 (quotation and brackets omitted). Here, Mr. Young
filed an objection to the Second Recommendation; but none of his appellate
arguments against the Second Recommendation were advanced in that objection.
And our review of the record convinces us that those appellate arguments have
little or no merit. Thus, the interests-of-justice exception is not met.
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Consequently, Mr. Young has waived his arguments regarding the district court’s
adoption and affirmation of the Second Recommendation. 2
Mr. Young also briefly argues that the defendants improperly withheld
discovery. He directs this court to the minutes of a hearing held August 6, 2009,
and argues that “[t]he Magistrate ordered the Defendants to produce the
information in Computer Stored In[f]ormation #‘V68.98' as well as other
Discovery requested by the Plaintiff.” Aplt. Br. at 4. He claims that
“[d]efendants were so negligent in turning over Discovery that [he] was unable to
file Interrogatories or Requests for Admissions.” Id.Mr. Young’s argument is meritless. The order to which Mr. Young refers,
states:
All responsive medical records in the possession, custody, and
control of defendants and of the Colorado Department of Corrections
have been produced to the plaintiff. [Defense Counsel] is directed,
however, to complete his efforts to obtain, as an accommodation, any
responsive medical records in the possession, custody, or control of
the Colorado Department of Human Services and to produce any such
responsive records to the plaintiff on or before August 20, 2009. The
employee files sought by ¶2 of Plaintiff’s Second Request for
Production of Documents are not relevant to the plaintiff’s treatment
here, and the request is overbroad and seeks information that is
neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence.
2
As noted above, Mr. Young specifically claims in his appellate brief that he
is appealing the rulings contained in the Second Recommendation. Nevertheless,
some portions of his brief could be read to attack some rulings from the First
Recommendation. For the reasons previously set forth, any such arguments are
waived by Mr. Young’s failure to file any objection to the magistrate judge’s First
Recommendation.
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Id. at 388. First, the order in question only required defense counsel to produce
any further records received from the Department of Human Services. There is
nothing to show that defense counsel received any further records. Second,
Mr. Young failed to file a motion under Federal Rule of Civil Procedure 56(f)
complaining that he could not adequately oppose summary judgment due to the
failure to procure discovery. He has thus “waived the argument that the grant of
summary judgment should be set aside for lack of sufficient discovery.”
Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1124 (10th Cir.
2008).
Finally Mr. Young argues that his Motion for Summary Judgment was
improperly stricken. His argument is internally inconsistent. He argues that the
magistrate judge erred in striking his motion because the judge determined that
the motion “was Seeking Affirmative Relief in the Form of Summary Judgment”
when Mr. Young “Sought No Such Relief anywhere in the Motion.” Aplt. Br. at
4. But the magistrate judge’s order only struck Mr. Young’s motion to the extent
that he was affirmatively seeking summary judgment. If–as he now claims on
appeal–he was not seeking summary judgment, then nothing was stricken and
there is no basis for error.
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The judgment of the district court is AFFIRMED. Mr. Young’s Motion for
Leave to Proceed on Appeal Without Prepayment of Costs or Fees is GRANTED.
He is reminded that he is obligated to continue making partial payments until the
entire appellate filing fee has been paid in full.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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