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Thomas v. Bruce ( 2007 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    May 3, 2007
    UNITED STATES CO URT O F APPEALS
    Elisabeth A. Shumaker
    FO R TH E TENTH CIRCUIT                    Clerk of Court
    STEV EN RA Y TH OM AS,
    Plaintiff-Appellant,
    v.                                                 No. 06-3235
    (D.C. No. 04-CV-3274-JTM )
    LOUIS E. BRUCE, W arden,                             (D . Kan.)
    Hutchinson Correctional Facility;
    ROGER W ERHOLTZ, Secretary of
    Corrections; DENNIS GOFF, Nurse
    Practitioner; JANET M YERS,
    R egistered N urse; D EB RA LU NDRY,
    N urse; NEA L R . B RO CK BA N K,
    Contracting Physician; CORRECT
    CA RE SOLU TIONS,
    Defendants-Appellees.
    OR D ER AND JUDGM ENT *
    Before L UC ER O, M cKA Y, and GORSUCH, 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    not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
    consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    This case involves an appeal by pro se Plaintiff Steven Ray Thomas of the
    district court’s order granting summary judgment sua sponte in favor of
    defendants. M r. Thomas’s lawsuit filed pursuant to 
    42 U.S.C. § 1983
     asserts that
    while he was incarcerated in a Kansas state prison that the various named
    defendants were aware of, and deliberately indifferent to, his serious medical
    needs with respect to treatment of his Hepatitis B and C, all in violation of the
    Eighth Amendment. On appeal, M r. Thomas does not challenge the district
    court’s order on summary judgment, but instead requests the court to grant him
    leave to file an amended complaint. Because the proposed amended complaint
    would either only amend non-material clerical errors or present new arguments
    and evidence not raised before the district court, we are constrained to affirm the
    district court’s grant of summary judgment in favor of the defendants.
    I
    On August 26, 2004, M r. Thomas, a prisoner of the State of Kansas, filed
    this suit under 
    42 U.S.C. § 1983
     asserting that defendants violated his Eighth
    Amendment rights while he was incarcerated through their deliberate indifference
    to his serious medical needs. M r. Thomas’s complaint sought declaratory and
    injunctive relief and compensatory and punitive damages. Attached to M r.
    Thomas’s complaint were thirty-four pages of documents supporting his claims.
    The district court assigned the case dismissed the complaint under 
    28 U.S.C. § 1915
    (e)(2)(B)(ii) and Rule 12(b)(6) of the Federal Rules of Civil Procedure,
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    which order we reversed on appeal in Thom as v. Bruce, 125 F. App’x 964 (10th
    Cir. M ar. 18, 2005) (unpub.). On M ay 3, 2005, M r. Thomas filed a verified
    amended complaint excluding as defendants the State of Kansas, Kansas
    Department of Corrections, and Hutchinson Correctional Facility (“HCF”), but
    otherwise alleging similar facts constituting the same constitutional violation by
    the same individual defendants and seeking the same relief as his first complaint.
    M r. Thomas again attached exhibits to his complaint supporting his claims.
    On M ay 3, 2005, M r. Thomas also filed a motion requesting the district
    court to order a report be prepared by prison officials pursuant to M artinez v.
    Aaron, 
    570 F.2d 317
     (10th Cir. 1978) (the “M artinez Report”), which the district
    court granted on M ay 10, 2005. On September 16, 2005, the Kansas Department
    of Corrections filed the M artinez report with the district court.
    On February 13, 2006, Defendants Louis E. Bruce and Roger W erholtz
    moved the district court for summary judgment. M r. Thomas did not file a
    response but, instead, on M arch 10, 2006, filed a motion to amend his Amended
    Complaint to fix two “clerical errors” (adding the date and fact that he received a
    biopsy to paragraphs 28 and 34) and disputing the date on which defendants
    learned of his H epatitis diagnosis (1996 versus 2003). M r. Thomas renewed his
    motion to correct the two “clerical mistakes” on April 3, 2006, and also moved to
    correct an error in the M artinez report (the date the biopsy was performed was
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    December 7, 2004, not December 17, 2004) and delete two paragraphs from his
    initial disclosures regarding who ordered a biopsy.
    On April 25, 2006, without ruling on the motions to amend, the district
    court granted summary judgment in favor of all defendants. Although the district
    court found Defendants Bruce and W erholtz’s motion failed to comply with
    federal and local rules and “lack[ed] substantive legal analysis of the claim
    presented,” Dist. Ct. Order of A pril 25, 2006, at 1, the district court, nonetheless,
    granted summary judgment sua sponte “in the interest of judicial expediency,” 
    id.
    The district court explicitly based its findings on the information in the M artinez
    report, id. at 4, and, because M r. Thomas had failed to file a timely response,
    proceeded as if it were considering an unopposed motion for summary judgment,
    id. at 3. After an extensive examination of records in the M artinez report, the
    district court concluded:
    The medical record indicates that defendants were
    continuously aw are of and monitoring plaintiff’s condition. In
    M arch 2003, plaintiff's goal was established to avoid liver
    toxins. On August 22, 2003 and January 29, 2004, plaintiff
    had additional lab work done. On October 20, 2004, plaintiff
    requested and received records as to his enzyme levels. After
    this, the record indicates that doctor and patient agreed they
    would “work up the process” on plaintiff regarding his
    hepatitis. In the following months, additional tests were
    conducted. By mid-November 2004, it was recommended that
    plaintiff receive a liver biopsy. On December 7, 2004, the
    liver biopsy was performed. In his motion to amend his
    complaint, plaintiff acknowledges he received the biopsy in
    December 2004.
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    Under these circumstances, the court finds that plaintiff fails to
    establish an Eighth Amendment claim. Defendants clearly
    acknowledge that plaintiff had a serious condition that was
    continuously monitored through clinic visits and lab tests.
    Plaintiff fails to establish that defendants w ere deliberately
    indifferent under both an objective and subjective analysis.
    First, there is no evidence of a deprivation that was
    sufficiently serious to meet the objective component. The care
    providers recognized plaintiff's condition and provided
    ongoing monitoring. Second, there is no evidence of
    defendants knowingly disregarding risk to plaintiff's health.
    W hen plaintiff’s high enzyme levels warranted further testing
    and a liver biopsy, defendants undertook steps to ensure
    treatment through the established administrative process.
    Plaintiff fails to contradict these facts. The record indicates
    that plaintiff's reluctance to participate in a drug treatment
    program may have been partially responsible for his treatment
    delays.
    Id. at 15-16.
    On M ay 12, 2006, M r. Thomas filed a motion to reconsider, which the
    district court denied on M ay 31, 2006. In its order, the district court explained
    that it had “waited more than two months before entering an order in this case,”
    Dist. Ct. Order of M ay 31, 2006, at 2, and that a response from M r. Thomas was
    not received until the day the court was planning to file its grant of summary
    judgment, id. M oreover, the district court noted that the response it received
    from M r. Thomas failed to comply with local filing requirements and thus could
    not be docketed or considered even if it had been timely. Id. The court found
    under those circumstances its original grant of summary judgment was
    appropriate.
    -5-
    II
    On appeal, M r. Thomas has “stipulate[d] the [district] court did act
    appropriately in dismissing his complaint for failure to state a claim [sic], but
    should have allowed him the opportunity to amend the . . . complaint.” A plt.
    Opening Br. at 17. From this, and seeking to construe his argument as liberally as
    we might, we perceive M r. Thomas to be making one of two arguments on appeal:
    (1) that the district court should have granted his motions to amend his complaint
    and supplement the record, or (2) that he should be granted another opportunity
    by this court to present a different amended complaint fixing the defects in his
    original complaints.
    W ith respect to the first of these arguments, however, M r. Thomas had tw o
    motions pending before the district court to amend his complaint and supplement
    the record when the district court granted summary judgment and none of the
    proposed revisions would have altered the district court’s analysis. In fact, the
    district court’s order explicitly acknowledged and addressed the revisions that M r.
    Thomas sought to make through his motions to amend. See Dist. Ct. Order of
    April 25, 2006, at 15 (“In his motion to amend his complaint, plaintiff
    acknowledges he received the biopsy in December 2004.”). A ccordingly, even if
    the district court had granted M r. Thomas’s motions to amend prior to issuing its
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    order granting summary judgment, the district court’s analysis would not have
    changed at all. 1
    W e think it more likely that on appeal M r. Thomas is asking this court for
    another opportunity to file an amended complaint based on new evidence and
    arguments he has presented on appeal. However, M r. Thomas was already
    granted an opportunity to amend his complaint “as needed” after his first appeal
    to this court, Thom as, 125 F. App’x at 968. The only reason M r. Thomas
    provides for why he failed previously to present the arguments and evidence he
    now seeks to advance was that “at the time [he] drafted his complaint, he had no
    understanding of the law and/or legal writing whatsoever.” Aplt. Opening Br.
    at 17. But in the proceedings on remand after his initial appeal, M r. Thomas did
    have knowledge of the facts of his case, the contents of the M artinez Report, and
    defendants’ motion for summary judgment. M oreover, M r. Thomas w as able to
    successfully appeal the district court’s dismissal of his lawsuit, file an amended
    complaint, and file two motions to amend errors he found in his amended
    complaint, his initial disclosures, and the M artinez Report. M r. Thomas thus had
    1
    “A M artinez report is treated like an affidavit, and the court is not
    authorized to accept the factual findings of the prison investigation when the
    plaintiff has presented conflicting evidence.” Hall v. Bellmon, 
    935 F.2d 1106
    ,
    1111 (10th Cir. 1991). In this case, even considering the excluded allegations,
    M r. Thomas presented nothing relevant to the district court’s grant of summary
    judgment which conflicted with the M artinez report.
    -7-
    more than sufficient notice and opportunity to present all his new evidence and
    arguments before the district court.
    Generously read, M r. Thomas’s second appeal constitutes his fourth motion
    to file an amended complaint in this matter. Although w e recognize that pro se
    parties should not be held to the same standards as attorneys and should be
    afforded significant leniency in their filings, granting M r. Thomas another
    opportunity to present the arguments and evidence he should have presented
    previously before the district court would significantly undermine the value of
    finality. Accordingly, while affording M r. Thomas all the benefits of a pro se
    litigant, we are nonetheless constrained to deny his request for another
    opportunity to amend his complaint based on new arguments and evidence he has
    thus far failed to present to the district court. See, e.g., Wardell v. Duncan, 
    470 F.3d 954
    , 963 (10th Cir. 2006) (affirming district court’s denial of leave to amend
    a pro se complaint when plaintiff moved to amend two years after filing the
    action, “did not diligently pursue the basis for such amendments, and that the
    facts behind such amendments would have been known to the plaintiff at the
    initiation of this action,” (citations omitted)).
    *    *       *
    The judgment of the district court is affirmed. M r. Thomas’s motion to
    proceed without prepayment of costs or fees is granted. He is reminded that he is
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    obligated to continue making partial payments until the entire fee has been paid.
    All other pending motions are denied as moot. 2
    Entered for the Court
    Neil M . Gorsuch
    Circuit Judge
    2
    M r. Thomas has a number of outstanding motions, including: (1) to
    proceed without prepayment of costs or fees, file-stamped September 25, 2006;
    (2) for preliminary injunction and attached motion for oral argument, file-stamped
    January 11, 2007; and (3) for permission to supplement his appendix, affidavit 7,
    with lab reports for another inmate with Hepatitis C, file-stamped January 22,
    2007. M r. Thomas has also filed a notice to the court regarding his attempts to
    retain counsel and a notice regarding certain exhibits filed-stamped M arch 8,
    2007.
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