Garrett v. Stratman

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 30 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JONATHAN T. GARRETT,
Plaintiff-Appellant,
v. No. 03-1357
(D.C. No. 97-Z-1217)
C.A. STRATMAN, M.D., Chief (D. Colo.)
of Medical Services, ADX-USP,
Florence, Colorado,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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.
Jonathan T. Garrett appeals from the district court’s order granting
summary judgment in favor of C.A. Stratman, M.D. on Mr. Garrett’s claim that
Dr. Stratman was deliberately indifferent to Mr. Garrett’s serious medical needs
in violation of the Eighth Amendment. On appeal, Mr. Garrett argues that the
district court erred in granting the motion for summary judgment because
Dr. Stratman failed to promptly obtain an orthopedic consultation and failed to
expeditiously obtain a transfer for Mr. Garrett to have his shoulder surgery. We
review the district court’s grant of summary judgment de novo, applying the same
standard under Fed. R. Civ. P. 56(c) as the district court. McKnight v. Kimberly
Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998).
Initially, we note that Mr. Garrett’s counsel failed to follow 10th Cir. R.
28.2(C)(2), which states: “[f]or each issue raised on appeal, all briefs must cite
the precise reference in the record where the issue was raised and ruled on.”
Mr. Garrett’s brief does not include any such record references. Mr. Garrett’s
counsel also failed to follow Fed. R. App. P. 30(a)(1) and 10th Cir. R. 30.1(A)(1).
These rules require that an appellant provide an appendix with the relevant docket
entries from the district court sufficient for considering and deciding the issues on
appeal. 10th Cir. R. 30.1(A)(1) incorporates the requirements for 10th Cir. R.
10.3, which indicates that the court need not remedy any failure by counsel to
designate an adequate record and that the court may decline to consider an issue
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when a party fails to provide a sufficient record for that issue. Finally,
Mr. Garrett’s counsel failed to follow Fed. R. App. P. 28(a)(9)(A), which states
that “[appellant’s] argument . . . must contain . . . appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.”
In this case, the magistrate judge granted summary judgment on defendant’s
motion, but Mr. Garrett failed to include defendant’s motion or his response.
Mr. Garrett then filed objections to the magistrate’s recommendation, but he
failed to include those as well. As a result, we cannot properly review all of the
arguments raised by Mr. Garrett in his appeal.
Mr. Garrett appears to argue that the fact that he must defend himself in a
penitentiary setting supports his position that he was harmed by the delay in
obtaining an orthopedic consultation because he could no longer receive
reparative surgery. See Aplt’s Br. at 4, 6-7. Because it is not clear from
Mr. Garrett’s brief or the record whether Mr. Garrett raised this issue before the
district court, we will not consider it on appeal. See Fed. R. App. P. 30(a)(1);
10th Cir. R. 30.1(A)(1).
Mr. Garrett also states in his brief: “[t]he next point is that the Defendant
Garrett throughout his deposition complained of a disability in his shoulder.”
Aplt. Br. at 7. There is no analysis following this statement that explains how
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this statement supports Mr. Garrett’s position on appeal. Accordingly, this
argument is waived. See Fed. R. App. P. 28(a)(9)(A); Adler v. Wal-Mart Stores,
Inc. , 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the
opening brief are waived.”).
With respect to Mr. Garrett’s remaining issues, having reviewed the briefs,
the record, and the applicable law, we conclude that the district court correctly
decided this case. We therefore AFFIRM the judgment for the same reasons
stated by the district court in its Order and Judgment of Dismissal filed on
July 28, 2003.
Entered for the Court
Robert H. Henry
Circuit Judge
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