Johnson, Jr. v. Standifird , 400 F. App'x 369 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
October 28, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
LARRY LEROY JOHNSON, JR.,
Plaintiff-Appellant,
v. No. 10-7025
(D.C. No. 6:08-CV-00372-FHS-SPS)
JANE STANDIFIRD, Warden; DENNIS (E.D. Okla.)
COTNER, Medical Service
Administrator of DOC; BARBARA
CARSWELL, Medical Administrative at
JBCC; PHILLIP LANGSTON;
DR. NORMAN MCALESTER;
DR. STEWART; DR. PHILLIP
WASHBURN, JBCC Physician;
DR. WIT CHAINAKUL, JLCC
Physician; DR. JOHN HILDENBRAND,
Physician OU Medical Orthopedic
Clinic; ANITA THOMAS, Nurse, RN;
CAROLYN COOPER, Nurse, RN,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Larry Leroy Johnson, Jr., an Oklahoma prisoner appearing pro se, appeals
from an order of the district court dismissing his suit under 42 U.S.C. § 1983.
Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss the appeal as
frivolous and assess one strike against Mr. Johnson.
The gravamen of Mr. Johnson’s complaint is an Eighth Amendment
violation arising from the defendants’ alleged deliberate indifference to his
serious medical needs. 1 Following its consideration of two Martinez reports, 2 the
defendants’ motion to dismiss, and Mr. Johnson’s response, the district court
dismissed the case under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous. Despite its
conclusion that Mr. Johnson’s suit was frivolous, the district court granted his
motion to proceed in forma pauperis (IFP) on appeal.
Prior to his incarceration, Mr. Johnson was in an automobile accident that
required the surgical fusion of his spine. During his incarceration, he was
diagnosed in 2005 with osteoarthritis in his hip and knee. He was treated with
pain medications, injections, braces, and restrictive orders were issued that
limited his daily activities. When his condition deteriorated, prison medical
1
Mr. Johnson also alleged violations of his rights under the First, Fifth and
Fourteenth Amendments. These claims are subsumed in his broader claim under
the Eighth Amendment.
2
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (en banc) (per curiam)
(authorizing district courts to order prison officials to investigate civil-rights
complaints and prepare a report for submission to the court).
-2-
personnel requested an examination by an outside orthopedic specialist. In March
2006, while waiting for the orthopedic consultation, Mr. Johnson began
experiencing neurological problems. Between March and June 2006, a series of
tests were conducted to diagnose the problem. During this time, Mr. Johnson was
given pain medications, a cervical collar, provided with a walker, and placed on
bed rest. On June 26, he was seen by an outside physician, who recommended
spinal surgery. That surgery was performed on July 18.
In December 2006, following Mr. Johnson’s recovery from his spinal
surgery, prison doctors renewed their efforts for an outside orthopedic
examination. In May 2007, he was examined by an orthopedic specialist, who
diagnosed him with degenerative disease in his knee and hip. However, in light
of Mr. Johnson’s relatively young age, the physician recommended that surgery
be postponed until the condition severely affected the quality of his life. Thus, he
was placed on the waiting list as a low priority for surgery. In April 2008, and at
the request of a prison physician, Mr. Johnson’s surgical status was upgraded to
medium priority. This request was followed by additional requests from the
prison medical staff in July and November 2008, to schedule the surgery. At the
time the suit was filed, Mr. Johnson had not undergone surgery; instead, he was
being treated in accordance with the recommendations of the orthopedic
specialist.
-3-
In its March 31, 2009 opinion and order, the district court outlined
Mr. Johnson’s medical treatment and concluded that “the acts complained of do
not show deliberate indifference to [his] medical needs[.]” Aplt. App. at 613.
We have reviewed the record, the parties’ appellate filings, and the relevant legal
authority, and affirm for substantially the same reasons set forth by the district
court. There is no question that the defendants adequately addressed
Mr. Johnson’s medical needs; the record contains more than 200 pages of medical
records documenting his treatment. His apparent disagreement is with the
orthopedic specialist’s opinion that he does not need immediate surgery.
However, “a prisoner who merely disagrees with a diagnosis or a prescribed
course of treatment does not state a constitutional violation.” Perkins v. Kan.
Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999). The only other conceivable
argument is a delay in receiving treatment. But there is no evidence of delay or
the substantial harm required to state such a claim. See Olson v. Stotts, 9 F.3d
1475, 1477 (10th Cir. 1993) (holding that a delay in medical care can only
constitute an Eighth Amendment claims if there has been a deliberate indifference
that results in substantial harm). 3
3
Mr. Johnson argues in a conclusory fashion that the district court erred in
denying his motion to appoint counsel. But his failure to cite any legal authority
to support his argument means that we will not consider the issue on appeal. See
Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (holding that issues
not adequately addressed on appeal are deemed waived). Similarly, Mr. Johnson
argues in conclusory terms that the magistrate judge erred in denying his motion
(continued...)
-4-
In his opening brief, Mr. Johnson outlines his medical treatment and argues
that the district court misinterpreted the facts. To the contrary, the court carefully
and completely reviewed the facts, assumed they were true, and concluded as a
matter of law that they failed to state a cognizable claim for relief. Under
§ 1915(e)(2)(B)(i), an appeal that is frivolous should be dismissed. An appeal is
frivolous where “the result is obvious, or the appellant’s arguments of error are
wholly without merit.” Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987)
(en banc) (quotation omitted). Mr. Johnson’s appeal meets this test. Moreover,
we assess one strike against Mr. Johnson under § 1915(g) because we dismiss the
appeal as frivolous. We remind him that if he accrues three strikes, he may no
longer proceed IFP while a prisoner in any civil action or appeal filed in federal
court unless he is “under imminent danger of serious physical injury.” Id.
Last, although the district court dismissed Mr. Johnson’s case as frivolous,
it nonetheless granted his motion to proceed IFP on appeal. In light of our
conclusion that Mr. Johnson’s appeal is frivolous, we VACATE the court’s grant
of IFP status on appeal, and DENY IFP status on appeal. Cf. Coppedge v. United
States, 369 U.S. 438, 445-46 (1962) (holding that a district court’s certificate that
an appeal is not taken in good faith “is not conclusive, although it is, of course,
3
(...continued)
to compel the defendants to obtain and produce the medical records of the outside
specialists who examined and treated him. Again, his failure to cite any legal
authority means the issue is waived.
-5-
entitled to weight”). Mr. Johnson is ordered to make immediate payment of the
entire appellate filing fee.
The appeal is DISMISSED.
Entered for the Court
John C. Porfilio
Senior Circuit Judge
-6-