Baker v. Simmons

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 6 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
TYRONE LAMONT BAKER, SR.,
Plaintiff-Appellant,
v. No. 02-3260
(D.C. No. 98-CV-3412-MLB)
CHARLES SIMMONS, Secretary of (D. Kansas)
Corrections for the KDOC; ROBERT
HANNIGAN, Warden, Hutchinson
Correctional Facility; STEVEN
DECHANT, Deputy Warden,
Hutchinson Correctional Facility;
GERALD POSTIER, JR., Officer,
Unit Team; RUDY P. RODRIGUEZ,
Unit Team; JEFF CONN, Unit Team;
MICHAEL NELSON, Warden,
ElDorado Correctional Facility; DON
THOMAS, Deputy Warden, ElDorado
Correctional Facility; JOHN
TURNER, Deputy Warden,
Hutchinson Correctional Facility;
PRISON HEALTH SERVICES, a
Delaware corporation; MARVIN L.
METTSCHER, Health Services
Administrator, Hutchinson
Correctional Facility; DEBRA
WHEAT, Health Services
Administrator, ElDorado Correctional
Facility; LOUISIA OSBORNE,
Director of Nursing, Hutchinson
Correctional Facility; DENNIS
GOFF, Nurse, Hutchinson
Correctional Facility; NANCY
HUDSON, Nurse, Hutchinson
Correctional Facility; MARY
MCIVER, Nurse, Hutchinson
Correctional Facility; BRENDA
SHUFF, Nurse, Hutchinson
Correctional Facility; BELINDA
SAIZ, Records Clerk, Prison Health
Services; DURWARD A.
VANBEBBER, Chaplain, Hutchinson
Correctional Facility; ARAMARK
CORPORATION, a Pennsylvania
corporation; JUDY SIEBERT,
Aramark Employee; MARK
SHIMICK, Aramark Employee; BILL
GRAVES, Governor of Kansas,
Appellees-Defendants.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY and O’BRIEN, 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This order and judgment is not binding precedent except under the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.
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Tyrone L. Baker, acting pro se, 1 appeals a decision of the district court
awarding summary judgment to Defendants Aramark Corporation, Prison Health
Services, Inc. and its employees Marvin Mettscher, Debra Wheat, Louisia
Osborne and Dennis Goff, and Kansas Department of Corrections employees
Charles Simmons, Steve Dechant, John Turner, Rudy Rodriguez, and Durward
Van Bebber. 2 Mr. Baker also appeals the district court’s entry of judgment for
contract food service employees Judy Siebert and Mark Shimick, pursuant to a
jury verdict in their favor. Finally, he appeals interlocutory orders of the district
court denying his motion to supplement the complaint, his motions to recuse and
his motions for appointment of counsel. Exercising jurisdiction under 28 U.S.C.
§ 1291 (2003), we affirm.
BACKGROUND
Mr. Baker has been in the custody of the Kansas Department of
Corrections since 1989. He is serving four consecutive life sentences for two
counts of first degree murder and two counts of aggravated kidnaping, together
with a consecutive three to ten year sentence for one count of aggravated assault.
1
We liberally construe a pro se appellate brief. Ledbetter v. City of Topeka,
318 F.3d 1183, 1187 (10th Cir. 2003). We note Mr. Baker proceeded pro se in
the district court; we also liberally construe his pleadings there. Id.2
In a notice to this Court filed October 28, 2002, Mr. Baker dropped from
his appeal ten of the original defendants in the action who were also awarded
summary judgment by the district court. Pursuant to this notice, we order these
individuals dismissed as parties.
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On December 18, 1998, Mr. Baker filed a complaint in the United States District
Court for the District of Kansas against twenty-three Defendants, 3 individually
and in their official capacities, alleging violation of his Eighth Amendment right
to be free from cruel and unusual punishment. He brought his complaint under 42
U.S.C. § 1983 (2003) 4 seeking damages, as well as declaratory and injunctive
relief.
He alleged the Defendants demonstrated deliberate indifference to his
serious medical needs. Mr. Baker claimed his neglected medical needs dated to
1992 and included hypoglycemia, hypertension, dental complaints, and problems
with his feet, back, legs, fingers, and wrists. He also claimed the Defendants
wrongfully barred him from medical care because he refused to sign an
acknowledgment of his responsibility for an administratively required $2.00
copayment for medical services. The district court granted summary judgment in
The Defendants included the Governor of Kansas, employees of the
3
Kansas Department of Corrections, contracted food service workers at the
Hutchinson Correctional Facility, and Prison Health Services, Inc., which
provided medical services to the Kansas Department of Corrections, together with
a number of its employees. Mr. Baker also sued twenty-six unnamed “Does” who
were never otherwise identified or served.
“Every person who, under color of any statute, ordinance, regulation,
4
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress . . . .” 42
U.S.C. § 1983 (2003).
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favor of all Defendants, except Ms. Siebert and Mr. Shimick; their cases
proceeded to a jury trial where a verdict, and subsequent judgment, was entered in
their favor. From this order, and several interlocutory orders, Mr. Baker appeals.
DISCUSSION
I. Entry of Judgment
We review the district court’s grant of summary judgment de novo,
applying familiar legal standards. Simms v. Okla. ex rel. Dep’t of Mental Health
& Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), cert. denied,
528 U.S. 815 (1999).
At the outset, we note “neither a State nor its officials acting in their
official capacities are ‘persons’ under § 1983.” Stidham v. Peace Officer Stds. &
Training, 265 F.3d 1144, 1156 (10th Cir. 2001) (quoting Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989)). Thus, summary judgment in favor of all
Defendants in their official capacities was appropriate as to the damage claims. 5
Mr. Baker’s claims that Aramark Corporation and Prison Health Services,
Inc. were vicariously liable for the actions of their employees at the prison is also
5
Mr. Baker also sued Defendants in their official capacities for injunctive
and declaratory relief. While Defendants named in their official capacities are
not immune from suit for injunctive relief under 42 U.S.C. § 1983, Stidham v.
Peace Officer Stds. & Training, 265 F.3d 1144, 1156 (10th Cir. 2001), Mr.
Baker’s claims for injunctive relief, as well as his claims for declaratory relief,
are without merit for the reasons discussed below.
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without merit. “[C]orporate defendants cannot be held vicariously liable for the
acts of their servants under section 1983.” Dickerson v. Leavitt Rentals, 995
F.Supp. 1242, 1247 (D. Kansas 1998), aff’d, 153 F.3d 726 (10th Cir. 1998), cert.
denied, 525 U.S. 1110 (1999); see also, DeVargas v. Mason & Hanger-Silas
Mason Co., Inc., 844 F.2d 714, 722 (10th Cir. 1988), cert. denied, 498 U.S. 1074(1991). Accordingly, summary judgment for Aramark Corporation 6 and Prison
Health Services, Inc. was appropriate .
The district court correctly granted summary judgement to Kansas
Department of Corrections employees Charles Simmons (Secretary of Corrections
of the State of Kansas), Steve Dechant (Deputy Warden, Hutchinson Correctional
Facility) and John Turner (Deputy Warden, Hutchinson Correctional Facility).
Mr. Baker’s complaints against these individuals in their supervisory roles, even
liberally construed, are devoid of any allegation affirmatively linking them to a
subordinate’s alleged deliberate indifference to his medical needs. Mr. Baker’s
allegations are, at best, conclusory. “[A] supervisor is not liable under § 1983 for
6
In its motion for summary judgment, Aramark Corporation submitted an
affidavit in which it denied a contractual relationship with the State of Kansas
and denied employing Ms. Siebert or Mr. Shimick. We agree with the district
court that Mr. Baker was unable to rebut this affidavit, and as such, Aramark
Corporation was not a proper Defendant. Instead, Aramark Correctional Services,
Inc., a different corporate entity, contracted with the State of Kansas to provide
food services to the Kansas Department of Corrections and employed Ms. Siebert
and Mr. Shimick.
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the actions of a subordinate unless an affirmative link exists between the
constitutional deprivation and either the supervisor’s personal participation or his
failure to supervise.” Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir. 1996)
(quotation and citation omitted).
Mr. Baker’s claim of error emanating from the favorable jury verdicts for
Ms. Siebert and Mr. Shimick–contract food service workers at the Hutchinson
Correctional Facility who allegedly acted with deliberate indifference to his
medical needs by failing to adhere to his prescribed medical diet–must also fail.
On appeal, Mr. Baker points to no error in the jury trial and offers no authority or
cognizable argument for overturning the verdicts. Instead, he merely seeks to retry
his case on appeal. We will not consider “issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation.” Murrell v.
Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994) (quotation and citation omitted).
Therefore, judgment for Ms. Siebert and Mr. Shimick is affirmed.
“A prison official violates an inmate’s clearly established Eighth
Amendment rights if he acts with deliberate indifference to an inmate’s serious
medical needs--if he knows of and disregards an excessive risk to inmate health or
safety.” Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001) (quotation and
citation omitted). The test contains both an objective and subjective component.
A “serious medical need” is objectively established by proof the inmate’s
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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.” Id. (quotations and citations omitted). The subjective aspect of the
test, “deliberate indifference,” is established where “the prison official both was
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Id. (quotation and
citations omitted). “[A] delay in medical care only constitutes an Eighth
Amendment violation where the plaintiff can show that the delay resulted in
substantial harm.” Id. at 950 (quotation and citation omitted). “[A]ccidental or
inadvertent failure to provide adequate medical care, or negligent diagnosis or
treatment of a medical condition do not constitute a medical wrong under the
Eighth Amendment.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert.
denied, 450 U.S. 1041 (1981). Nor does a difference of opinion between an
inmate and medical staff as to the need for or adequacy of treatment “rise to the
level of a constitutional violation.” Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir.
1993).
With these principles in mind, we have carefully reviewed the record,
including a Martinez report ordered by the district court. 7 We adopt the reasoning
In Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), we approved the
7
practice of the district court to order preparation of a report by the prison
administration, to be included in the pleadings in cases where a prisoner has filed
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of the district court and agree with its conclusion that Mr. Baker failed to state a
cognizable Eighth Amendment claim against the remaining Kansas Department of
Corrections employees (Officer Rodrigues and Chaplain VanBebber) or Prison
Health Services, Inc. employees (Marvin Mettscher, Debra Wheat, Louisia
Osborne and Dennis Goff). Neither health care providers nor corrections officials
have barred Mr. Baker from seeking medical treatment. 8 In fact, the record
contains abundant evidence he has obtained treatment for his medical needs since
1992. At best, he disagrees with his health care providers and corrections officials
as to the recommended treatment regimen for his stated ailments. Such complaints
suit alleging a constitutional violation. “Thus, the state prison administration, at
a level where the facts can be adequately developed, first examines and considers
the incident, circumstances, and conditions which gave rise to the asserted cause
of action and develops a record before the court must proceed beyond the
preliminary stages.” Id. at 320.
8
Mr. Baker claimed Belinda Saiz, records clerk for Prison Health Services,
Inc., and Officer Gerald Postier, Jr. of the Kansas Department of Corrections,
both posted to the Hutchinson Correctional Facility, barred him from medical care
on May 29, 1998 (attention to his feet and a medical refill) because he refused to
sign a paper acknowledging his responsibility for an administratively required
$2.00 copayment for medical services. The copayment only applied to the initial
visit to sick call for a specific complaint or condition and, at that, only to visits
initiated by the inmate. Furthermore, the regulation provided, “No inmate shall be
refused medical treatment for financial reasons.” See K AN . A DMIN . R EGS . 44-5-
115(c) (2000). Mr. Baker also claims Kansas Governor Bill Graves committed a
constitutional violation by promulgating this administrative regulation. These
claims are defeated by Mr. Baker’s requested dismissal of Ms. Saiz, Officer
Postier and Governor Graves from this appeal. In any event, the regulation is
clear that an inmate’s inability to pay the copayment does not deprive him of
access to medical services.
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are not of constitutional magnitude. See Johnson, 6 F.3d at 692.
II. Interlocutory Orders
Mr. Baker raises other issues in his brief which the district court disposed of
by interlocutory order before entry of judgment for the Defendants. We will
consider those issues, even though not specifically identified in the notice of
appeal, under the rule that “a notice of appeal which names the final judgment is
sufficient to support review of all earlier orders that merge in the final judgment.”
McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir. 2002). Mr.
Baker appeals from orders denying his motion to supplement his complaint, his
motions that the district court judge recuse himself, and his motions for
appointment of counsel.
A. Denial of Motion to Supplement Complaint
On March 20, 2000, fifteen months after filing his complaint, Mr. Baker
filed a motion, correctly construed by the district court as brought under Fed. R.
Civ. P. 15(d), to supplement his complaint by adding claims against nine new
defendants. Mr. Baker characterized the new claims as the “same in nature to the
violations alleged in the complaint filed on December 18, 1998.” The district
court denied the motion to supplement the complaint, reasoning the case would
“never be resolved if plaintiff is permitted to continuously ‘update’ his claims and
add additional parties . . . .” ROA, Vol. II, Doc. 90, p.4.
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Whether or not to grant a motion to supplement the pleadings lies within the
“broad discretion” of the district court. Walker v. United Parcel Serv., Inc., 240
F.3d 1268, 1278 (10th Cir. 2001). We are also mindful of the admonition that the
Federal Rules of Civil Procedure “be construed and administered to secure the
just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1. In
this light, and after a careful review of the extensive record, we conclude the
district court did not abuse its discretion in denying Mr. Baker’s motion to
supplement the complaint.
B. Denial of Motions for Change of Judge
On July 27, 2000, shortly after the district court denied his motion to
supplement the complaint, Mr. Baker filed his first motion to recuse under 28
U.S.C. § 144 (2003). He later supported this motion with an affidavit of
prejudice. 9 The district court denied the motion on the grounds Mr. Baker’s
affidavit of prejudice was insufficient. On November 2, 2001, Mr. Baker filed a
second motion for change of judge, supported by another affidavit of prejudice.
The district court also denied this motion on the grounds it was a forbidden second
9
“Whenever a party to any proceeding in a district court makes and files a
timely and sufficient affidavit that the judge before whom the matter is pending
has a personal bias or prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein, but another judge shall be
assigned to hear such proceeding. . . . A party may file only one such affidavit in
any case.” 28 U.S.C. § 144 (2003).
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affidavit of prejudice in the same case and, again, for insufficiency.
Mr. Baker’s allegations of bias or prejudice, as expressed in his two
affidavits, generally consist of remarks made by the judge in the course of the
proceedings. Mr. Baker believes those remarks to have been made in hostility to
him and to the detriment of his claims for relief. 10 On this point, we turn for
guidance to the United States Supreme Court:
[O]pinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible. Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion that
derives from an extrajudicial source; and they will do so if they reveal
such a high degree of favoritism or antagonism as to make a fair
judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994)(emphasis in original).
We review the denial of a motion to recuse for abuse of discretion. United
States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992), cert. denied, 507 U.S.
1033(1993). “Under § 144, the affidavits filed in support of recusal are strictly
10
For example, Mr. Baker complains the presiding judge addressed him in a
condescending manner, belittled his lack of legal skills, improperly commented on
the propriety of naming certain persons as Defendants, exhibited bias by alluding
to his claims as a “laundry list of complaints,” and remarked on the tragic irony of
a convicted double murderer enjoying “better access to health care than many
law-abiding citizens, not to mention access to a federal court to make sure that his
rights as a convict are not violated.” ROA, Vol. 3, Doc. 128, pp. 22-23
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construed against the affiant and there is a substantial burden on the moving party
to demonstrate that the judge is not impartial.” Id. “To sustain disqualification
under § 144, supra, there must be demonstrated bias and prejudice of the judge
arising from an extrajudicial source which renders his trial participation unfair in
that it results in an opinion formed . . . on some basis other than that learned from
his participation in the case.” United States v. Bray, 546 F.2d 851, 859 (10th Cir.
1976) (quotation and citation omitted). Adverse rulings by a judge in a case are
not grounds for disqualification. Id. at 857. While all factual allegations in an
affidavit of prejudice must be taken as true, the challenged presiding judge must
rule on the affidavit’s legal sufficiency. Id.Here, the presiding judge’s comments clearly derive from the litigation itself
and Mr. Baker’s past criminal history rather than from an extrajudicial source. As
to whether they evidence “such a high degree of favoritism or antagonism as to
make a fair judgment impossible,” we think not. Liteky, 510 U.S. at 555. The
challenged remarks were no more than observations of the proceedings. While
uttered with some apparent passion, they do not demonstrate bias, but merely
reflect the reality of the proceedings. Mr. Baker did not meet his substantial
burden to establish partiality.
C. Denial of Motions for Appointment of Counsel
Mr. Baker’s final assignment of error involves his two motions for
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appointed counsel. The district court denied his first motion with the explanation:
“Given the narrow issues involved and plaintiff’s failure to request a jury trial, the
court believes that the interests of justice do not require appointment of counsel
for plaintiff.” ROA, Vol. 4, Docket 135, p.8. The magistrate judge granted Mr.
Baker’s second motion for appointment of counsel for the limited purpose of
aiding him in identifying and securing the appearance of witnesses at trial on his
behalf. As best we can decipher his argument, Mr. Baker alleges error in limiting
the role of appointed counsel.
“There is no constitutional right to appointed counsel in a civil case.”
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). However, “[t]he court may
request an attorney to represent any person unable to afford counsel.” 28 U.S.C. §
1915(e)(1) (2003). “The decision to appoint counsel is left to the sound discretion
of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001),
cert. denied, 535 U.S. 1001 (2002). A district court’s denial of counsel “will not
be overturned unless it would result in fundamental unfairness impinging on due
process rights.” Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)(citation
and quotations omitted). “In determining whether to appoint counsel, the district
court should consider a variety of factors, including the merits of the litigant’s
claims, the nature of the factual issues raised in the claims, the litigant’s ability to
present his claims, and the complexity of the legal issues raised by the claims.”
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Id.While the preferred practice is for the district court to fully explain its
reasons for denying appointment of counsel, to the extent the district court did not
do so here, “we may independently examine the propriety” of a request for
appointment of counsel. See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995). Having thoroughly examined the record and considered the Meese factors
ourselves, we conclude the district court did not abuse its discretion in failing to
appoint counsel to assist Mr. Baker.
CONCLUSION
For the reasons given, we AFFIRM the judgment of the district court.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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