Grassi v. Corrections Corporation of Ame

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS November 27, 2009
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
RONALD B. GRASSI;
DEBRA GRASSI,
Plaintiffs-Appellants,
v. No. 09-1042
(D.C. No. 1:07-CV-944-MSK-KMT)
CORRECTIONS CORPORATION (D. Colo.)
OF AMERICA,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
Ronald B. Grassi and his wife, Debra Grassi, appeal the district court’s
grant of summary judgment to defendant Corrections Corporation of America
(CCA) on their Eighth Amendment claims, brought under 42 U.S.C. § 1983, their
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
state-law-negligence claim, and Mrs. Grassi’s loss-of-consortium claim. Our
jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background
Defendant CCA, a private corporation, operates the Crowley County
Correctional Facility (CCCF) in Olney Springs, Colorado. As part of its
operation, CCA employs a staff of nurses and has contracted with a doctor of
osteopathic medicine to provide supervision and medical care to inmates on a
twenty-four-hour phone call basis and a regular in-service basis. At the time of
the incident described here, plaintiff Ronald Grassi was an inmate at CCCF.
During the afternoon of May 8, 2005, Grassi began feeling abdominal pain
and nausea. Around 8:00 pm, Grassi was given permission to go to the medical
unit at CCCF where he was interviewed and examined by a nurse and where, at
the direction of the supervising physician Dr. Jere Sutton, who consulted by
telephone, he was given Mylanta and Pepto Bismol and kept in an observation
cell. The nurses checked in on Grassi several times while he was in the cell.
When told that the doctor did not plan on visiting the jail, Aplt. App. 44, Grassi,
although still in pain, elected to return to his own cell. By 3:30 the next morning,
Grassi’s pain had increased to the point that he again called for medical help. A
stretcher was sent to his cell, and Grassi was transferred to the medical unit. As a
precaution, staff asked that a prison van be on standby in case transportation was
needed.
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Once in the medical unit, Grassi asked that an ambulance be called. At
4:15 a.m., after additional observation and treatment and consultation between
Dr. Sutton and the medical unit staff, Dr. Sutton directed that Grassi be
transported to the hospital. At approximately 5:15 a.m., a prison van left CCCF
to transport Grassi the forty-two miles to St. Mary Corwin Hospital in Pueblo,
Colorado, where, by 6:00 a.m., Grassi was receiving medical treatment. His
appendix, which had perforated, was removed later that morning, but
complications ensued necessitating five more surgeries and resulting in permanent
damage to Grassi’s digestive system.
Grassi and his wife filed their complaint pursuant to 42 U.S.C. § 1983alleging that CCA and Dr. Sutton failed to provide Grassi with adequate medical
care relating to his appendicitis, and that CCA failed to hire qualified medical
providers, all resulting in a violation of the Eighth Amendment. The complaint
also included a state-law negligence claim, and Mrs. Grassi brought a claim for
loss of consortium. 1
The district court granted summary judgment in favor of CCA. In doing so,
it held that plaintiffs failed to establish deliberate indifference on the part of the
CCA staff; that the “corporate practice of medicine doctrine” shields CCA from
vicarious liability for any negligent acts by Dr. Sutton; and that plaintiffs failed to
1
Plaintiffs also brought a separate negligence claim against Dr. Sutton,
individually. Dr. Sutton has since settled with plaintiffs and has been dismissed
from the case.
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show that the nurses’ treatment of Grassi deviated from an accepted standard of
care. Because CCA was entitled to summary judgment on all claims predicated
on injury to Grassi, Mrs. Grassi’s derivative loss-of-consortium claim failed as
well.
This appeal followed.
Analysis
On appeal, plaintiffs argue that the district court mistakenly resolved
disputed issues of material fact in favor of CCA, and that the court further
misapplied Colorado law as to the negligence of the nurse who treated Grassi.
“We review the question whether to grant summary judgment de novo, and will
affirm a district court’s decision to do so only if, viewing the facts in the light
most favorable to the non-movant, we discern no genuine issue as to any material
fact and conclude that movant is entitled to judgment as a matter of law.” Four
Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr, 582 F.3d 1216, 1220
(10th Cir. 2009).
Constitutional Claims.
Plaintiffs brought two claims under the Eighth Amendment against CCA:
failure to provide adequate medical care for Grassi and failure to hire qualified
medical providers at CCCF. As part of its obligations under the Eighth
Amendment, a government must provide medical care for its prisoners. Estelle v.
Gamble, 429 U.S. 97, 103 (1976). “[D]eliberate indifference to serious medical
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needs of prisoners constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.” Id. at 104 (internal quotation marks and
citation omitted).
“Deliberate indifference” involves both an objective and a
subjective component. The objective component is met if the
deprivation is sufficiently serious. A medical need is sufficiently
serious if it is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention. The
subjective component is met if a prison official knows of and
disregards an excessive risk to inmate health or safety.
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation
marks and citations omitted). An allegation of mere negligence is insufficient to
state a claim under the Eighth Amendment. Estelle, 429 U.S. at 106. In its
summary judgment motion, CCA assumed that appendicitis and a subsequent
perforated appendix were sufficiently serious to meet the objective component of
the deliberate indifference test. Aplt. App. at 22. It argued, however, that
plaintiffs had failed to show that “anyone who interacted with Mr. Grassi knew of
and disregarded any serious medical need.” Id. at 23. The district court agreed,
and so do we.
We cannot improve on the district court’s thorough analysis of the facts and
the law on this point. As for plaintiffs’ arguments, we see no relevance in
whether CCA complied with its internal policies during the course of this matter.
Whether prison medical treatment constitutes deliberate indifference rising to the
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level of an Eighth Amendment violation comprehends the seriousness of the
deprivation and the prison official’s state of mind. See Farmer v. Brennan,
511 U.S. 825, 834, 837 (1994). Compliance with corporate policy is not part of
the deliberate indifference analysis.
Plaintiffs’ assertion that “[t]he nursing staff at CCCF knew or should have
known that Mr. Grassi would suffer a ruptured appendix with the corresponding
possibility of life-threatening complications” is unsupported by evidence in the
record. There is no evidence that any member of the nursing staff knew what
would befall Grassi, and no expert testimony or other evidence was offered to
establish what the nursing staff “should have known” in these circumstances.
In their brief, plaintiffs imply that the “brief phone call” with Dr. Sutton,
the administration of over-the-counter medications, the fact that Grassi was
allowed to return to his cell, and transportation to the hospital in a van rather than
an ambulance rise to the level of deliberate indifference. Plaintiffs, however,
point to no evidence suggesting that any CCCF employee was subjectively aware
that these actions posed any substantial risk of harm to Grassi but chose,
nevertheless, to disregard that risk. See Sealock, 218 F.3d at 1209. Because
ineffective and even negligent treatment does not establish an Eighth Amendment
violation, DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,
198 n.5 (1989), the district court properly granted summary judgment to CCA on
the medical treatment claim.
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In addition to the medical treatment claim, Plaintiffs allege violation of the
Eighth Amendment stemming from CCA’s hiring of inexperienced and
unqualified medical staff, particularly the hiring of Dr. Sutton. See Aplt. App.
at 10-12. In their brief on appeal, however, plaintiffs fail to make any substantive
legal argument to support this claim. Plaintiffs have therefore waived any
consideration of this issue on appeal. Bledsoe v. Garcia, 742 F.2d 1237, 1244
(10th Cir. 1984). 2
State Law Claims.
After granting summary judgment on the Eighth Amendment claims, the
district court exercised its discretion to retain supplemental jurisdiction over the
remaining state-law claims for negligence and loss of consortium. With regard to
the negligence claim stemming from the actions of Dr. Sutton, the district court
held that CCA was shielded by Colorado’s “corporate practice of medicine
doctrine” which holds “that it is impossible for a fictional entity, a corporation, to
perform medical actions or be licensed to practice medicine.” Villalpando v.
Denver Health & Hosp. Auth., 181 P.3d 357, 364 (Colo. Ct. App. 2007),
cert. denied, 2008 WL 921297 (Colo. Apr. 7, 2008) (No. 07SC1064) (internal
2
Plaintiffs do intimate that Dr. Sutton’s failure to supervise the nursing staff
resulted in deliberate indifference to Grassi’s serious medical needs. This
argument, however, was not presented to the district court. Except in certain
circumstances not present here, we will not entertain an argument made for the
first time on appeal. Sussman v. Patterson, 108 F.3d 1206, 1210 (10th Cir. 1997).
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quotation marks omitted). “The doctrine generally shields corporations from
vicarious liability for the negligent acts of physician employees.” Id.Corporate liability for actions of nurses, however, stands on a different
footing. An employer such as CCA can “be held liable for a nurse’s negligence,
so long as the nurse was one of its employees and was acting within the scope of
employment.” Nieto v. State, 952 P.2d 834, 841 (Colo. Ct. App. 1997), aff’d in
part, rev’d in part on other grounds, 993 P.2d 493 (Colo. 2000). Plaintiffs argue
generally that the CCCF nursing staff mistreated Grassi “upon his arrival,”
Opening Br. at 20 (which presumably means upon his initial arrival at the medical
unit during the evening of May 8), when it allowed him to return to his living
unit, and when it delayed in transferring him to the hospital. Plaintiffs fail to
identify, however, which nurse or nurses were responsible for this alleged
mistreatment or to describe with particularity the acts or omissions by them that
would give rise to liability. See Villalpando, 181 P.3d at 365. Even more
fundamentally, plaintiffs put forth no evidence establishing the standard of care
required of a nursing staff in the situation presented here or whether the staff
deviated from that standard. 3 Without negligence on the part of its employees,
there can be no vicarious liability for CCA. It was therefore proper for the
district court to grant CCA summary judgment on the negligence claim.
3
Because we affirm on this alternate ground relied on by the district court,
we need not address whether the district court erred in relying on the nurse’s
supervision by Dr. Sutton.
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Because Mrs. Grassi’s loss-of-consortium claim is derivative of
Mr. Grassi’s right to recover, the district court correctly dismissed the
loss-of-consortium claim when it granted summary judgment on all claims
brought by Mr. Grassi.
The judgment of the district court is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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