Hill v. Corrections Corp. of America , 685 F. App'x 665 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 14, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ALBERT BENJAMIN HILL,
Plaintiff - Appellant,
v. No. 16-1299
(D.C. No. 1:14-CV-02960-MSK-MJW)
CORRECTIONS CORPORATION OF (D. Colo.)
AMERICA; LOUIS CHARLES
CABILING, M.D.; LYNNE THOMPSON,
N.P.;
Defendants - Appellees,
and
FREDERICK STEINBERG, M.D.,
Defendant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
_________________________________
Albert Benjamin Hill, a state prisoner, filed this action against Corrections
Corporation of America (CCA) and three healthcare providers at the Crowley County
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Correctional Facility—Nurse Lynne Thompson,1 Dr. Louis Cabiling, and
Dr. Frederick Steinberg—alleging that they failed to provide adequate medical
treatment for his wrist injury. He sought relief under state law and brought a claim
under 42 U.S.C. § 1983 for a violation of his rights under the Eighth Amendment.
Mr. Hill dismissed his claims against Dr. Steinberg, and the district court granted
summary judgment in favor of the remaining defendants on the § 1983 claims,
concluding that the individual defendants were not deliberately indifferent to
Mr. Hill’s serious medical needs and that he had not established a basis for holding
CCA liable for the allegedly inadequate care. The court then dismissed without
prejudice the state-law claims, declining to exercise supplemental jurisdiction.
Although Mr. Hill named Nurse Thompson, Dr. Cabiling, and CCA in his notice of
appeal, his opening brief does not address the merits of his claims against CCA, so he
has waived any challenge to the dismissal of those claims. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007). On the claims against the two remaining
providers, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
Mr. Hill injured his wrist while exercising on November 1, 2012. He sought
medical attention three days later and was seen by a nurse the following day. The
nurse wrapped his wrist with a bandage, told him to ice it and to take ketoprofen for
the pain, and noted in his file that he had requested an x ray. The matter was referred
to Defendant Nurse Thompson, the nurse practitioner responsible for prisoners’ acute
1
In the record she is also referred to as Lynne Cappellucci.
2
healthcare needs at the facility. After reviewing Mr. Hill’s file sometime that month,
Nurse Thompson ordered an x ray, which was taken on November 28.
The radiologist who reviewed the x ray reported that it was normal but showed
some soft-tissue swelling. Nurse Thompson saw Mr. Hill on December 4, told him
about the x-ray results, gave him a splint for his wrist, and prescribed a muscle rub.
She scheduled a follow-up visit for three weeks later.
Two weeks later, Nurse Thompson saw Mr. Hill again, this time concerning
pain in his hip. She filed a request for Mr. Hill to see an orthopedic surgeon about
his hip but did not examine his wrist during this visit. The request was approved, and
Mr. Hill saw an orthopedic surgeon on February 11, 2013. At that appointment, in
response to Mr. Hill’s complaints about his wrist, the orthopedic surgeon had more
x rays taken and, based on those, diagnosed him with “a possible scapholunate
dissociation.” Aplt. App. at 156. He provided Mr. Hill with a new splint. His report
states: “I went ahead and ordered MRI and will follow up with those MRI results.”
Id.An MRI on April 19 indicated that Mr. Hill had a “[s]capholunate ligamentous
tear.” Id. at 83. There is no evidence of when Nurse Thompson first received the
MRI results, but upon a recommendation by the orthopedic surgeon, she requested on
June 19, 2013, that Mr. Hill see a hand surgeon. The hand surgeon saw him on
December 20, 2013, and again on February 7, 2014, but ultimately recommended that
Mr. Hill not undergo surgery.
3
Defendant Dr. Cabiling was the doctor responsible for providing and
supervising healthcare for prisoners with chronic problems and serious medical
needs. For administrative purposes he is listed as the healthcare provider or the
referring or ordering physician on documents related to Mr. Hill’s medical care, some
of which show his name, initials, or signature. As Mr. Hill concedes in his
complaint, however, “There is nothing in the medical record which indicates that
Dr. Cabiling evaluated [him] or was consulted regarding his wrist.” Id. at 14.
Mr. Hill brought this action in October 2014. His core assertions were that
delays in getting treatment for his wrist exacerbated the injury, rendering his wrist
“irreparable,” and that defendants were responsible for those delays. Id. at 15-16.
He alleged that “[n]one of the individual Defendants acted with promptness required
by the standard of care to prevent permanent pain and disability.” Id. at 16.
In their motion for summary judgment the defendants asserted that Mr. Hill
had not shown deliberate indifference by either Nurse Thompson or Dr. Cabiling.
They argued that Nurse Thompson was not aware that Mr. Hill’s injury posed an
excessive risk to his health or safety and that she had not disregarded his medical
needs because she had taken appropriate steps to diagnose and treat the injury. The
district court agreed. With respect to the initial x ray, the court determined that
Mr. Hill had not shown that Nurse Thompson could have obtained it sooner or that
had she done so the treatment of his injury would have been materially different. The
court also noted that upon receiving the x-ray results, Nurse Thompson provided a
splint and prescribed a muscle rub, and that Mr. Hill did not request further treatment
4
for his wrist when he saw her again two weeks after that visit. With respect to the
MRI, the court said that Nurse Thompson had a reasonable basis for believing that
the orthopedic surgeon had assumed responsibility for following up on any additional
treatment that might be needed. And it said that in the absence of any evidence of
when Nurse Thompson learned of the MRI results, Mr. Hill had failed to establish
any delay attributable to her between when the MRI results were received and when
he was referred to a hand surgeon. Further, the court determined that there was no
evidence that Nurse Thompson was responsible for any of the six-month delay
between when the referral was made and when Mr. Hill had his first appointment.
In their motion for summary judgment the defendants also argued that Mr. Hill
failed to establish deliberate indifference by Dr. Cabiling because he had no direct
involvement with Mr. Hill’s course of treatment. Again the district court agreed,
ruling that even though Dr. Cabiling was responsible for authorizing certain
procedures related to Mr. Hill’s care and had access to the MRI results, such minimal
evidence of involvement in Mr. Hill’s medical care did not show that Dr. Cabiling
knew of and disregarded an excessive risk to Mr. Hill’s health or safety.
Mr. Hill contends that the district court erred by granting summary judgment
because there are genuine issues of material fact concerning whether Nurse
Thompson and Dr. Cabiling were deliberately indifferent to his serious medical
needs. He also argues that the court erred by denying him the opportunity to respond
to evidence the defendants submitted with their reply brief in support of their motion
for summary judgment.
5
II. Analysis
A. Summary Judgment
We review de novo the district court’s grant of summary judgment, applying
the same standard as the district court. See Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We construe the factual record
and the reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005).
“A prison official’s deliberate indifference to an inmate’s serious medical
needs violates the Eighth Amendment.” Sealock, 218 F.3d at 1209. “The test for
deliberate indifference is both objective and subjective.” Martinez v. Beggs,
563 F.3d 1082, 1088 (10th Cir. 2009). The objective component requires that the
harm be sufficiently serious to implicate the Eighth Amendment. See id. “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 that the
plaintiff “faced a substantial risk of harm and disregarded that risk, by failing to take
reasonable measures to abate it.” Martinez, 563 F.3d at 1089. But an inadvertent
failure to provide adequate medical care—even if it rises to the level of medical
malpractice—does not in itself amount to a constitutional violation. See Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976). Nor does mere disagreement with the type of
6
medical care provided establish an Eighth Amendment violation. See Callahan v.
Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (prisoners do not have Eighth
Amendment right to a particular course of treatment). To survive summary
judgment, Mr. Hill needed to provide evidence supporting an inference that the
defendants knew about and disregarded a substantial risk of harm to his health or
safety. See Mata, 427 F.3d at 752.
1. Nurse Thompson
Mr. Hill has adduced no evidence that Nurse Thompson knew about and failed
to reasonably respond to a substantial risk posed by his wrist injury. She ordered an
x ray, consulted the radiologist, and referred Mr. Hill to two specialists. She and
other healthcare providers at the facility also treated his symptoms by bandaging,
applying ice, providing splints, and prescribing a muscle rub and pain medicine.
There is no evidence that she was aware that the treatment provided and the referrals
made were inadequate to assess and treat the injury. The radiologist read the initial
x ray as normal, and Mr. Hill has not shown that Nurse Thompson’s reliance on that
medical opinion was improper. Indeed, he concedes that “the nature of the problem
with [his] wrist was unexpectedly discovered by [the orthopedic surgeon],” Opening
Br. at 17, and he does not dispute that he did not mention his wrist when he met with
Nurse Thompson in connection with his hip two weeks after learning the results of
the initial x ray. As for the MRI, regardless of when she first learned of the results,
she could reasonably assume that the orthopedic surgeon would follow up on Mr.
7
Hill’s care, as he stated in his report he would do. And when the orthopedic surgeon
recommended that Mr. Hill see a hand surgeon, Nurse Thompson made the referral.
Even assuming that Mr. Hill established that the treatment provided by Nurse
Thompson was not free of error, “[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 Corr., 165 F.3d 803, 811 (10th Cir. 1999). The
treatment Mr. Hill received does not amount to an “unnecessary and wanton
infliction of pain” proscribed by the Eighth Amendment, Sealock, 218 F.3d at 1210(internal quotation marks omitted). Because Mr. Hill has not shown that Nurse
Thompson acted with the requisite state of mind, the district court did not err by
granting summary judgment on the claims against her.
2. Dr. Cabiling
Mr. Hill concedes in his amended complaint that “[t]here is nothing in the
medical record which indicates that Dr. Cabiling evaluated [him] or was consulted
regarding his wrist.” Aplt. App. at 14. “[A]n inadvertent failure to provide adequate
medical care cannot be said to constitute an unnecessary and wanton infliction of
pain or to be repugnant to the conscience of mankind.” Estelle, 429 U.S. at 105-06(internal quotation marks omitted). Although Mr. Hill attempts to hold Dr. Cabiling
liable as “captain of the ship,” Opening Br. at 16, “[s]ection 1983 does not authorize
liability under a theory of respondeat superior.” Brown v. Montoya, 662 F.3d 1152,
1164 (10th Cir. 2011). “[A] plaintiff must establish supervisory liability . . . by
demonstrating an intentional, conscious, and deliberate act by the defendant
8
participating in, or knowingly acquiescing in, the unconstitutional behavior.” Dodds
v. Richardson, 614 F.3d 1185, 1196 n.4 (10th Cir. 2010) (internal quotation marks
omitted). The concededly limited involvement of Dr. Cabiling in Mr. Hill’s medical
care cannot meet this standard. Therefore, summary judgment was properly granted
on the claims against Dr. Cabiling as well.
B. Discovery Stay
With their reply brief in support of their motion for summary judgment, the
defendants submitted a new declaration from Nurse Thompson about when she first
reviewed Mr. Hill’s file and ordered the initial x ray. In response, Mr. Hill filed a
motion to reopen discovery and for leave to respond to the defendants’ reply. The
court denied Mr. Hill’s motion as moot, stating “that the analysis and outcome herein
is not materially altered regardless of Nurse Thompson’s original or modified
testimony.” Aplt. App. at 238 n.1.
We review for abuse of discretion the district court’s discovery rulings, see
Soc’y of Lloyd’s v. Reinhart, 402 F.3d 982, 1001 (10th Cir. 2005), and its decisions
on whether to allow a nonmoving party to respond to a moving party’s reply brief at
the summary-judgment stage, see Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d
1186, 1191-92 (10th Cir. 2006). Mr. Hill makes no argument as to how the treatment
he received would have differed based on when Nurse Thompson first reviewed his
file and ordered an x ray of his wrist; after all, the x ray showed nothing wrong. The
district court properly decided not to allow additional discovery or briefing.
9
III. Conclusion
The judgment is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
10