Shepard v. Sullivan , 65 F. App'x 677 ( 2003 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAR 27 2003
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MITCHELL A. SHEPARD, JR.,
    Plaintiff-Appellant,
    v.                                                   No. 02-1198
    (D.C. No. 00-S-1969 (PAC))
    PAT SULLIVAN, Sheriff, Arapahoe                       (D. Colo.)
    County Sheriff’s Dep’t; T. BAY,
    Captain, Arapahoe County Detention
    Facility; DR. DAVID SOLIZ,
    Physician, Arapahoe County Detention
    Facility,
    Defendants-Appellees.
    ORDER AND JUDGMENT            *
    Before LUCERO , McKAY , and BALDOCK , Circuit Judges.
    After examining the briefs and appellate records, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    *
    This order and judgment is not binding precedent, except under the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.
    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.
    Mitchell A. Shepard, Jr., proceeding pro se, appeals from the district
    court’s rulings in favor of defendants on his claims of deliberate indifference to
    serious medical needs, in violation of the Eighth Amendment. We have
    jurisdiction over this appeal by virtue of 
    28 U.S.C. § 1291
    , and we construe
    appellant’s pleadings liberally.   Haines v. Kerner , 
    404 U.S. 519
    , 520 (1972);
    Cummings v. Evans , 
    161 F.3d 610
    , 613 (10th Cir. 1998).
    1.     Procedural History
    Appellant, then a detainee at the Arapahoe County Detention Facility
    (ACDF), filed a civil rights suit pursuant to 
    28 U.S.C. § 1983
    , alleging, in
    pertinent part, that despite “known medical reasons” showing he was disabled, he
    was denied medical care and a post-cancer reconstructive surgery which had been
    scheduled at the Veteran’s Administration Hospital (VA). R., Vol. I, doc. 3, at 3.      1
    1
    Appellant also stated due process claims against additional defendants in
    connection with his detainment. Those claims and          defendant s were dismissed
    from the case upon the district court’s initial review,     see R., Vol. I, doc. 5.
    Appellant challenges that ruling on appeal as to the Arapahoe County
    Commissioners, see Aplt. Br. at 18-A. However, his notice of appeal specifically
    designated only the district court’s final order and the magistrate judge’s report,
    not the court’s early dismissal of this defendant.      See R., Vol. II, doc. 65.
    Accordingly, we have no jurisdiction to consider his challenge to any portion of
    the earlier ruling. See Cunico v. Pueblo Sch. Dist. No. 60 , 
    917 F.2d 431
    , 444
    (continued...)
    -2-
    He claimed “possible damage” from a tumor in his abdomen and permanent
    damage or loss of his right shoulder.   
    Id. at 6
    . He contended that defendants
    Sullivan and Bay were liable for damages as policy makers and supervisors of
    inmates and personnel, including medical staff, at ACDF.       
    Id. at 2
    . He alleged
    that defendant Soliz was employed as “the Medical Staff Physician” at ACDF,
    and specifically alleged that Soliz denied him medical treatment, including the
    denial of medicines “forwarded by the Denver V.A.”         
    Id.
     Appellant generally
    contended that defendants prevented him from having reconstructive surgery,
    related to previous cancer treatments, at the VA and that he was without medical
    treatment for “several months” between September of 1999 and September of
    2000. 
    Id. at 3
    .
    Defendants Sullivan and Bay moved for summary judgment and a stay of
    discovery, asserting various defenses including lack of personal participation,
    failure to allege a custom or policy, and qualified immunity. They attached as
    exhibits to their accompanying legal memorandum several affidavits and
    appellant’s medical records from ACDF.      
    Id.
     , doc. 20. In response to this motion,
    appellant argued that his complaint stated sufficient facts to demonstrate
    defendants’ knowledge of his need for this surgery and alleged a policy of
    1
    (...continued)
    (10th Cir. 1990) (“Our appellate review is limited to final judgment or parts
    thereof that are designated in the notice of appeal.”).
    -3-
    denying lifesaving cancer treatments based on a letter allegedly written by
    defendant Soliz. He stated that defendants knew about his need for the surgery as
    diagnosed and scheduled by the VA because they had the VA’s medical records.
    Defendant Soliz moved to dismiss appellant’s claims pursuant to
    Fed. R. Civ. P. 12(b)(6), asserting that the facts alleged in appellant’s complaint
    were insufficient to state a claim against him.     See 
    id.
     , doc. 35. Appellant did not
    respond to this motion.
    The magistrate judge issued her Order and Recommendation (O&R) on
    January 22, 2002. R., Vol. II, doc. 56. She stated that the court would assume
    appellant had a serious medical need because the surgery was scheduled by the
    VA. She recommended granting summary judgment to defendants Sullivan and
    Bay due to a lack of sufficient allegations showing that they had any knowledge
    of or personal participation in appellant’s medical care.     See 
    id. at 9-11
    . She
    stated that appellant’s assertions of a custom or policy to deny surgery to inmates
    were conclusory, and further denied appellant’s motion for limited discovery on
    this point because there was no evidence of those defendants’ knowledge of
    appellant’s need for surgery.
    As to defendant Soliz, the magistrate judge converted his motion to dismiss
    into one for summary judgment, but concluded that appellant need not be given an
    opportunity to respond because she was relying on facts asserted by Soliz in the
    -4-
    motion to dismiss and because these facts were also contained in the motion for
    summary judgment by defendants Sullivan and Bay and were undisputed by
    appellant in his response. The magistrate judge concluded that appellant’s
    allegations were insufficient to show deliberate indifference because they did not
    demonstrate that Soliz, a physician’s assistant, should or could have provided
    surgery or that he prevented appellant from receiving the surgery. She
    recommended that defendant Soliz’s motion to dismiss be granted, and the case
    dismissed with prejudice.    
    Id. at 14
    .
    Appellant sought an extension of time in which to file his objections to the
    magistrate judge’s O&R. He was granted an extension “up to and including
    March 1, 2002.”    
    Id.
     , doc. 58. His objections were filed with the district court on
    March 4, 2002, although the pleading indicates that appellant signed it on
    February 28 and mailed it on March 1. The district court concluded that
    appellant’s objections were untimely and declined to review them. The court
    adopted the magistrate judge’s recommendations and entered judgment for
    defendants. See 
    id.
     , docs. 62 & 63.
    2.     Objections to the Magistrate Judge’s O&R
    On appeal, appellant contends that the district court should have considered
    his objections in light of the prisoner “mail box” rule. We agree.    See Treff v.
    Galetka , 
    74 F.3d 191
    , 194 (10th Cir. 1996) (“[I]f [appellant’s] objections were
    -5-
    mailed from the prison in a timely fashion, the court should have considered
    them.”); Dunn v. White , 
    880 F.2d 1188
    , 1190 (10th Cir. 1989) (applying prisoner
    “mail box” rule to objections to a magistrate judge’s report). Because it is clear
    from the record that appellant mailed his objections on March 1, 2002, they were
    timely filed. Accordingly, we will consider appellant’s objections de novo in
    connection with our review of the district court’s rulings.
    3.     Summary Judgment Ruling as to Defendants Sullivan & Bay; Discovery
    We review the district court’s summary judgment ruling in favor of
    defendants Sullivan and Bay de novo, applying the same standard as that court,
    reviewing the record in the light most favorable to appellant.    See Treff , 
    74 F.3d at 193
    . Summary judgment is appropriate when “there is genuine issue as to any
    material fact and . . . the moving party is entitled to a judgment as a matter of
    law.” Fed. R. Civ. P. 56(c).
    “A prison official’s deliberate indifference to an inmate’s serious medical
    needs violates the Eighth Amendment.”        Sealock v. Colorado , 
    218 F.3d 1205
    ,
    1209 (10th Cir. 2000). To demonstrate deliberate indifference, appellant must
    have alleged facts which demonstrate that Sullivan and Bay both knew about and
    disregarded an excessive risk to his health and safety.     
    Id.
     We have no problem
    affirming the district court’s grant of summary judgment in favor of these
    defendants due to a lack of personal participation or knowledge of appellant’s
    -6-
    alleged serious medical need. Appellant’s attempts to bolster his initial,
    conclusory, allegations about these defendants’ personal knowledge fall short
    because they cannot be held to know about his medical needs merely as a result of
    their supervisory positions.    See Worrell v. Henry , 
    219 F.3d 1197
    , 1214 (10th Cir.
    2000). Appellant’s allegations do not show “an affirmative link . . . between the
    [constitutional] deprivation and either the supervisor’s personal participation, his
    exercise of control or direction, or his failure to supervise.”    
    Id.
     (quotation
    omitted). We reject appellant’s arguments that the district court placed too heavy
    a burden on him to demonstrate personal knowledge, that the magistrate judge
    treated Sullivan’s and Bay’s affidavit as facts, and that the magistrate judge failed
    to draw inferences in his favor. Prison officials cannot be liable under the Eighth
    Amendment without awareness of the facts which demonstrate that risk.           See
    Walker v. Peters , 
    233 F.3d 494
    , 498 (7th Cir. 2000) (quoting      Farmer v. Brennan ,
    
    511 U.S. 825
    , 837 (1994)). No allegations in appellant’s complaint or response
    demonstrate knowledge or personal participation, or support a reasonable
    inference of such knowledge or conduct.         Cf. id. at 498 (stating knowledge of a
    substantial risk could be shown by drawing an inference from circumstantial
    evidence).
    We also agree with the district court that appellant’s attempts to allege a
    policy or custom are conclusory. The letter appellant alleges was sent by
    -7-
    defendant Soliz to his attorney is not part of the record on appeal. And, even if
    appellant could show an ACDF policy of denying inmates surgery, there is no
    showing that defendants Sullivan and Bay knew about his alleged medical needs,
    or that the medical staff followed such a policy. Further, without any showing of
    knowledge or participation by these defendants, appellant’s motion for limited
    discovery on this point was properly denied.     See Jensen v. Redevelopment
    Agency , 
    998 F.2d 1550
    , 1554 (10th Cir. 1993) (stating district court did not abuse
    its discretion in denying motion pursuant to Fed. R. Civ. P. 56(f) to pursue
    discovery based solely on conclusory assertions). Appellant’s argument that the
    magistrate judge improperly relied on hearsay affidavits lacks merit; the O&R did
    not rely on the affidavits in granting summary judgment or to deny the motion for
    discovery. It relied on the lack of evidence of 1) requisite knowledge by
    defendants Sullivan and Bay and 2) “that plaintiff’s treating physician
    recommended surgery.” R., Vol. II, doc. 56, at 11. And, as discussed further
    below, appellant’s ACDF medical records do not contain a diagnosis or
    recommendation for the reconstructive post-cancer surgery.
    4.    Summary Judgment Ruling as to Defendant Soliz
    The district court converted Soliz’s motion to dismiss into one for summary
    judgment because it considered materials outside the complaint, but stated that it
    need not give appellant an additional opportunity to respond because the
    -8-
    statements it relied on had been posited in the summary judgment motion of
    defendants Sullivan and Bay, and appellant had not challenged them.            Id. at
    11-12. We agree that, as to evidence on which defendants Sullivan and Bay
    relied, the district court need not give appellant an additional chance to respond,
    because the purposes of notice before conversion to summary judgment have been
    satisfied here.   2
    See Whitesel v. Sengenberger   , 
    222 F.3d 861
    , 866 (10th Cir.
    2000). Specifically, defendants Sullivan and Bay attached a copy of appellant’s
    medical records from ACDF to their motion for summary judgment.            3
    See R.,
    Vol. I, doc. 20, Ex. D. They relied on these records in their arguments, as did
    2
    Appellant contends that the magistrate judge abused her discretion in
    denying him time to respond to this motion by amending his complaint. But the
    magistrate judge made no such ruling. Appellant failed to respond to Soliz’s
    motion to dismiss, and failed to request an extension of time to do so. Appellant
    did not request leave to amend before the district court, and does not state how he
    would amend his complaint to state a claim against Soliz.   See In re Walker ,
    
    959 F.2d 894
    , 896 (10th Cir. 1992). Therefore, we decline to consider this issue.
    3
    Although we agree with the district court that appellant’s complaint failed
    to sufficiently allege facts which demonstrated liability on Soliz’s part either
    directly or in a gatekeeper capacity,    see Sealock , 
    218 F.3d at 1211
    , we disagree
    with its reliance on statements that Soliz was not a doctor, but a physician’s
    assistant, and that he worked under a doctor’s supervision. First, Soliz’s position
    would not prevent him from being liable as a gatekeeper. Second, appellant was
    not obligated to controvert that statement in his response to the    summary
    judgment motion because defendant s Sullivan and Bay did not rely on it as
    support for their arguments, but included it only in their statement of facts.
    See R., Vol. I, doc. 20, at 2-4. We may affirm on an alternative legal basis which
    finds support in the record.    See United States v. Sandoval , 
    29 F.3d 537
    , 542 n.6
    (10th Cir. 1994).
    -9-
    Susan Williamson, on whose affidavit they also relied.   See 
    id.
     , Ex. C. 4 Appellant
    did not challenge these records in his response to the motion for summary
    judgment.   5
    Therefore, we can consider these medical records. We review the
    district court’s grant of summary judgment to defendant Soliz under the same
    standards as set out above.
    The medical records reflect that, contrary to appellant’s repeated assertions,
    ACDF never did receive the medical records from the VA, which records,
    appellant contends, would have established his serious medical need for the
    4
    We reject appellant’s arguments that this affidavit was inadmissable
    hearsay and therefore improper under Fed. R. Civ. P. 56(e). Not only was this
    argument not presented to the district court, but Ms. Williamson’s affidavits
    addressed matters within her personal knowledge, including appellant’s medical
    treatment, with which she stated she was familiar.    See R., Vol. I, doc. 20, Ex. C,
    at 4. Appellant’s contention that the affidavits involved credibility lacks merit.
    We also decline to consider the contracts which appellant presents to this court
    for the first time on appeal.  See Myers v. Okla. County Bd. of County Comm’rs     ,
    
    151 F.3d 1313
    , 1319 (10th Cir. 1998).
    5
    On appeal, appellant for the first time takes issue with the medical records
    attached to defendant s’ motion for summary judgment , contending that they were
    not certified or notarized and that there was no medical records clerk or
    custodian. Aplt. Br. at 19-D, -E. Appellant has waived any challenge to the
    medical records by failing to raise it before the district court. See Walker ,
    
    959 F.2d at 896
    . And, in any case, appellant does not state how the medical
    records have been affected by these alleged infirmities or how these allegations
    affect his case. Ms. Williamson stated in her affidavit that the medical records
    contained in Exhibit D were “true and accurate copies of Plaintiff’s medical file
    through the present time.” R., Vol. I., doc. 20, Ex. C, at 3. Appellant did not
    controvert this statement.
    -10-
    reconstructive abdominal surgery.     6
    In fact, the medical records indicate that,
    despite numerous entries by ACDF medical staff referencing the need to obtain
    the VA medical records to ascertain the nature of and need for the reconstructive
    surgery, appellant refused to sign the necessary release form after previous
    attempts to get his VA records were unsuccessful.           See, e.g., 
    id.
     , Ex. D, at 21, 22,
    40, 101, 120. Appellant was reported to have stated that if the VA found out he
    was in jail, he would lose his benefits.       Id. at 24.
    The district court assumed, for the purposes of granting summary judgment
    to defendants, that appellant had a serious medical need. Based on the medical
    record, we conclude that defendants had no basis upon which to determine that
    appellant’s scheduled reconstructive surgery constituted a serious medical need.
    He informed the medical staff at ACDF about his scheduled surgery, and the staff
    6
    On appeal, appellant contends he also had an unmet serious medical need in
    connection with a torn rotator cuff.     See Aplt. Br. at 17, 18. This injury was
    mentioned once in his complaint,      see R., Vol. I, doc. 3, at 6 (referring to
    “permanent damage or loss of right shoulder”). However, appellant did not
    otherwise raise to the district court his alleged medical need in connection with
    this injury until his objections to the magistrate judge’s O&R. His arguments
    prior to that pleading discussed only his alleged serious medical need for
    reconstructive surgery post-prostate cancer.     See, e.g., id. , doc. 41, at 1, 2.
    Accordingly, arguments regarding treatment of his rotator cuff injury will not be
    considered. See United States v. Garfinkle , 
    261 F.3d 1030
    , 1031 (10th Cir. 2001)
    (stating issues not raised until objections to magistrate judge’s report are deemed
    waived); O’Connor v. City & County of Denver , 
    894 F.2d 1210
    , 1214 (10th Cir.
    1990) (stating this court will not consider claims that were waived or abandoned
    in the district court).
    -11-
    attempted to get the VA records to discern if the surgery was “vital.”       See id.
    at 122. But, without those records, none of the defendants could have had the
    knowledge appellant imputes to them,      i.e. , that the VA’s diagnosis and scheduling
    of surgery constituted a serious medical need.
    “[D]eliberate indifference to medical needs amounts to an Eighth
    Amendment violation only if those needs are ‘serious.’”        Hudson v. McMillian ,
    
    503 U.S. 1
    , 9 (1992). A medical need is serious “if the condition has been
    diagnosed by a physician as mandating treatment or . . . is so obvious that even
    a lay person would easily recognize the necessity for a doctor’s attention.”
    Garrett v. Stratman , 
    254 F.3d 946
    , 949 (10th Cir. 2001) (quotation omitted).
    Despite what appears to be a delay in receiving the scheduled surgery,       7
    appellant
    does not claim or demonstrate harm of a substantial nature resulting from the
    delay. See Olson v. Stotts , 
    9 F.3d 1475
    , 1477 (10th Cir. 1993);         Clemmons v.
    Bohannon , 
    956 F.2d 1523
    , 1526-27 (10th Cir. 1992) (setting out examples of
    serious harm). Appellant’s claim in his complaint of “possible damage” resulting
    from lack of the abdominal surgery does not constitute serious medical need. His
    subsequent allegations of “necessary lifesaving cancer treatment,” R., Vol. I,
    doc. 41, at 2, are conclusory. His claims of pain and mental stress do not rise to
    7
    On appeal, appellant indicates that he expected to receive surgeries for both
    his rotator cuff tear and his post-cancer abdominal problem within a short time.
    See Aplt. Br. at 17-A.
    -12-
    the level of serious harm because the medical records reflect prompt and
    appropriate treatment of his symptoms.      See Olson , 
    9 F.3d at 1477
    ; cf. Sealock ,
    
    218 F.3d at 1210
     (concluding that several hours of severe chest pain imposed by
    failure to treat heart attack established substantial harm). Because appellant has
    not demonstrated the existence of a serious medical need, summary judgment for
    defendant Soliz was properly granted.
    The judgment of the United States District Court for the District of
    Colorado is AFFIRMED. Appellant’s motion to proceed without prepayment
    of costs or fees is granted; appellant is reminded of his obligation to continue
    making partial payments until the entire filing fee has been paid.     See 
    28 U.S.C. § 1915
    (b)(2).
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
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