Cooper v. Waters , 151 F. App'x 638 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 4, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
MICHAEL CLAYTON COOPER,
Plaintiff - Appellant,
v. No. 04-1383
(D.C. No. 02-K-1243 (PAC))
JEFF WATERS, Physician Assistant, (D. Colo.)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, KELLY, and MURPHY, Circuit Judges.
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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff Michael Clayton Cooper, a Colorado inmate proceeding pro se,
claims that defendant Waters, a physician assistant employed at the El Paso
County Jail in Colorado Springs, Colorado, was deliberately indifferent to his
serious medical needs during the time he was a pretrial detainee at that facility.
He filed suit under 42 U.S.C. § 1983. The district court granted summary
judgment in defendant’s favor. Mr. Cooper appeals and we affirm. 1
Mr. Cooper sustained a bullet wound to his knee before he was received at
the jail in April of 2002. During his stay at the jail, Mr. Waters treated his knee
injury. Mr. Cooper alleged (1) that the medical treatment of his knee injury was
contrary to the instructions from the physician who had treated him at the
hospital; (2) his knee brace and crutches were taken away, despite his need for
them; (3) he did not receive the physical therapy prescribed by the physician; (4)
he did not receive adequate or correct pain medications; and (5) he was assigned
an upper bunk on an upper level of the jail facility, which was difficult and
painful for him to manage due to his knee injury. On cross motions for summary
judgment, the magistrate judge recommended granting Mr. Waters’ motion. The
district court adopted the magistrate judge’s recommendation and entered
judgment against Mr. Cooper.
1
Mr. Cooper’s complaint originally named Sheriff John Wesley Anderson
and Terry Maketa as defendants. Those defendants were dismissed by an order of
the district court, and Mr. Cooper does not challenge that order on appeal.
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On appeal, Mr. Cooper reasserts the claims he made in the district court. 2
In addition, he has raised two issues in his reply brief on appeal. He contends
that his right to confidentiality in his medical records was violated when the
records were revealed to a third party. He also claims that by considering the
reports of two prison guards who observed that he did not use his knee brace or
crutch, Mr. Waters allowed non-medical personnel to participate in an evaluation
of his medical condition. Although Mr. Cooper mentioned these arguments in his
summary-judgment pleadings filed in the district court, he did not present them in
his complaint or his amendments to the complaint. He did not alert the district
court that these allegations were intended for consideration as distinct claims for
relief, rather than as supporting argument for the claims he had articulated.
Moreover, these claims were not included in the final pre-trial order, so they were
waived. Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002); see also R.
doc. 118, at 10 (final pre-trial order stating it “will control the subsequent course
of this action and the trial” and limiting amendment). Accordingly, we do not
consider these claims on appeal. See S. Hospitality, Inc. v. Zurich Am. Ins. Co.,
2
In his appellate brief, Mr. Cooper has listed as background information
several rulings for which he has not provided argument or legal authority.
Accordingly, we do not review those issues. See Phillips v. Hillcrest Med. Ctr. ,
244 F.3d 790, 800 n.10 (10th Cir. 2001) (holding appellate court need not
consider argument where party has failed to support it “with any authority, legal
or otherwise”).
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393 F.3d 1137, 1142 (10th Cir. 2004) (appellate court reviews claims fairly raised
and decided, but does not consider on appeal any theory not raised in district
court); Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir.
2003) (issues not presented to district court will not be addressed on appeal);
Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (appellate court will not
consider issue raised for first time in reply brief).
Turning to the claims properly raised and decided in the district court, we
review de novo the district court’s grant of summary judgment. Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Summary judgment is
appropriate if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Fed. R. Civ. P. 56(c). Mr. Cooper is representing himself on appeal,
so his pleadings will be construed liberally. See Haines v. Kerner, 404 U.S. 519,
520 (1972).
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
summary judgment substantially for the reasons stated in the magistrate judge’s
August 9, 2004 recommendation, as adopted by the district court.
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The district court granted Mr. Cooper’s motion to proceed on appeal
without prepayment of costs and fees. Mr. Cooper is reminded that he is
obligated to continue making partial payments until the entire fee has been paid.
The judgment of the United States District Court for Colorado is
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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