Bird v. Easton ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 11, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
CHESTER L. BIRD,
Plaintiff - Appellant,
v. No. 20-8061
(D.C. No. 2:20-CV-00026-SWS)
ERIC A. EASTON, (D. Wyo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BRISCOE, and BACHARACH, Circuit Judges.
_________________________________
Chester L. Bird sued Eric A. Easton, Director of the Wyoming Medical
Review Panel (WMRP), alleging civil rights claims under 42 U.S.C. § 1983. As
relevant to this appeal, Bird claimed that Easton violated his right of access to courts
when Easton declined to refer Bird’s negligence claims for review by the WMRP,
causing Bird’s claims to be barred by the applicable statute of limitations. The
district court granted Easton’s motion to dismiss Bird’s amended complaint, holding
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
that Easton was entitled to qualified immunity. The court then denied Bird’s motion
to reconsider. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
A. Bird’s Allegations
We summarize the relevant facts as alleged in Bird’s amended complaint. Bird
is a state prisoner in Wyoming. He requested dental treatment for a “bad tooth” on or
about January 13, 2017. R. at 171 (internal quotation marks omitted). A dentist
employed by Corizon Health, Inc., the contracted healthcare provider for the
Wyoming Department of Corrections, found that Bird’s tooth was abscessed and
extracted it on March 14, 2017. Bird claimed that he had suffered a 36-day delay in
receiving dental treatment.
Bird filed pro se actions in federal court and state court alleging state-law
negligence claims against Corizon and certain Corizon employees. The Corizon
defendants in Bird’s federal action asserted that he had failed to submit his claims to
the WMRP before filing suit, as required by the Wyoming Medical Review Panel Act
of 2005. See Wyo. Stat. Ann. §§ 9-2-1513 et seq. Bird responded by submitting
three claims to the WMRP. Bird’s amended complaint does not describe the
substance of the claims submitted to the WMRP. Nor did he attach to his amended
complaint the materials he submitted. But liberally construed, his amended
complaint appears to allege that the submitted claims related to the alleged delay in
his dental treatment.
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Easton, as Director of the WMRP, “rejected” Bird’s claims, id. at 175,
declining to submit them to the WMRP. In a letter to Bird, which is attached as an
exhibit to the amended complaint, Easton explained his decision as follows:
I am returning [your claims materials] to you as the [WMRP] is not the
proper forum to address your complaints.
The [WMRP] reviews claims of medical malpractice by health care
providers. Your allegations appear to be complaints against [Corizon and a
Corizon employee], for failure to timely address dental issues. You do not
allege or raise issues regarding the medical treatment that you did receive.
As you do not allege medical malpractice, this complaint is not an issue that
can be addressed by the [WMRP].
The [WMRP] is intended to address issues related to medical
malpractice. It is not intended to address issues related to providing inmate
medical care.
Id. at 187. A second letter from Easton regarding Bird’s claims against a different
Corizon employee provided substantially the same reasoning. In a third letter Easton
acknowledged receipt of a letter from Bird regarding his “dental care issues.” Id. at
185. He again stated that the WMRP “is not the proper forum to address your
complaints,” and suggested that Bird “send a copy of [his] complaint to the Wyoming
Board of Dental Examiners.” Id.One of the Corizon defendants in Bird’s state action later moved to dismiss his
complaint because Bird had not complied with the requirement to first submit his
claims to the WMRP. In response, Bird pointed to Easton’s determination that his
claims were not appropriate for the WMRP. The state court disagreed with Easton,
holding that Bird’s “claim of failure to provide dental services [is] in fact a
malpractice claim under Wyoming law,” and that Bird should have submitted his
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claim to the WMRP. Id. at 189. After the court dismissed Bird’s state action, Bird
decided he was “left with no alternative” and he withdrew his negligence claims
against the Corizon defendants in his federal action. Id. at 177.
Bird then filed this pro se action, asserting that Easton violated his right of
access to courts by not submitting his claims for review by the WMRP.1 He alleged
that the applicable statute of limitations had run on his negligence claims against the
Corizon defendants, and he is now legally foreclosed from pursuing those claims.
B. The District Court’s Rulings
Easton moved to dismiss Bird’s initial complaint in this action, arguing he was
entitled to qualified immunity. Bird responded by filing his amended complaint.
The district court held that the amended complaint did not moot Easton’s motion to
dismiss, granted the motion, and entered judgment in favor of Easton. Assuming
without deciding that “Easton was mistaken in his determination that the WMRP was
the incorrect forum for Mr. Bird’s claims,” id. at 342, the court held that Bird had
not overcome the second prong of qualified immunity because he ha[d] not
identified any controlling precedent or showed the weight of authority at
the relevant time put every reasonable public official in Director Easton’s
position on notice that rejecting Mr. Bird’s complaints on the belief that the
WMRP was not the proper forum to address those complaints was a
violation of Mr. Bird’s right of access to courts,
1
Bird’s second claim against Easton, alleging a violation of his right to equal
protection, is not at issue in this appeal.
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id. at 341-42 (internal quotation marks omitted). Therefore, Easton had established
qualified immunity on Bird’s access-to-courts claim.
The district court also denied Bird’s motion to reconsider filed under Federal
Rule of Civil Procedure 59(e). It held that he rehashed arguments the court had
already addressed in its dismissal order and concluded the court had not
“misapprehended the material facts, a party’s position, or the controlling law” in the
prior order. Id. at 366.
II. Discussion
We review de novo the district court’s grant of Easton’s motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) based on qualified immunity. See
Doe v. Woodward, 912 F.3d 1278, 1288 (10th Cir. 2019). In response to Easton’s
motion, Bird bore the burden to show that (1) “a constitutional violation occurred”
and (2) “the constitutional right was clearly established at the time of the alleged
violation.” Id. at 1289 (internal quotation marks omitted). The district court
exercised its discretion to decide Easton’s motion on the second prong. See id.“To qualify as clearly established, a constitutional right must be sufficiently
clear that every reasonable official would have understood that what he is doing
violates that right.” Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018)
(internal quotation marks omitted). To show that a right is clearly established, Bird
must identify a Supreme Court or Tenth Circuit case that is sufficiently in point, or
the clearly established weight of authority from other courts. See id. “The
dispositive question is whether the violative nature of particular conduct is clearly
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established. We therefore must determine whether a right is clearly established in
light of the specific context of the case, not as a broad general proposition.” Id.(citation and internal quotation marks omitted). “[S]imply to say the Constitution
recognizes a right to court access casts too high a level of generality over our
inquiry”; rather, Bird must “show his alleged right to court access was clearly
established.” Lynch v. Barrett, 703 F.3d 1153, 1161 (10th Cir. 2013).
Bird first argues that the district court erred in holding that his amended
complaint did not moot Easton’s motion to dismiss. On the merits, he maintains that
the cases he cited clearly establish that Easton violated his right to court access under
the circumstances alleged in his amended complaint; and he contends that conclusion
is obvious from the existing authorities. Finally, Bird asserts that qualified immunity
is inapplicable in this case because Easton had a ministerial duty to refer his claims
for review by the WMRP.
Because Bird is proceeding pro se, we liberally construe his complaint and his
appeal brief. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (complaint);
Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998) (brief). But we do not act as
his advocate. See Hall, 935 F.2d at 1110.
A. Mootness
Bird is correct that ordinarily an amended complaint supersedes the original
complaint and renders it of no legal effect. See Davis v. TXO Prod. Corp., 929 F.2d
1515, 1517 (10th Cir. 1991). “[This] rule establishes to which complaint opposing
parties should direct any subsequent motion.” Id. Bird therefore contends that his
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amended complaint mooted Easton’s motion to dismiss, which was directed to his
original complaint. But, as with most general rules, context matters. Easton points
out that Bird suffered no prejudice when the district court considered the motion to
dismiss after Bird filed his amended complaint, because the alleged defects in his
original complaint remained in the new pleading. We see no error.
[D]efendants should not be required to file a new motion to dismiss simply
because an amended pleading was introduced while their motion was
pending. If some of the defects raised in the original motion remain in the
new pleading, the court simply may consider the motion as being addressed
to the amended pleading. To hold otherwise would be to exalt form over
substance.
6 Charles Alan Wright, et al., Federal Practice & Procedure § 1476 (3d ed.)
(Apr. 2021 Update) (footnote omitted).
B. Clearly Established Law
Bird fails to show that the district court erred in holding that the cases he cited
did not clearly establish that Easton violated his right of access to courts under the
circumstances alleged in his amended complaint. First, the facts in the cited cases
are not sufficiently analogous to the facts in this case. See Mecham v. Frazier,
500 F.3d 1200, 1206 (10th Cir. 2007) (“While the facts of the cases compared need
not be identical, they must be sufficiently analogous to satisfy the particularized
context necessary to support liability.” (citation omitted)). We agree with the district
court that the cases Bird cited, “at best, suggest an access-to-courts claim can be
grounded on obstructive actions by state actors, but they do nothing to demonstrate
how . . . Easton’s specific conduct could constitute a violation of clearly-established
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law.” R. at 341 (citation and internal quotation marks omitted). Second, most of the
cases Bird relied on are unpublished, and we have stated that unpublished
decisions—even those with analogous facts—“provide[] little support for the notion
that the law is clearly established.” Mecham, 500 F.3d at 1206. Bird points to our
rule allowing the citation of unpublished decisions “for their persuasive value.”
10th Cir. R. 32.1(A). But a decision’s persuasiveness in this court is not equivalent
to the provision of fair notice to state officials that their conduct violates a
constitutional right.
Third, contrary to Bird’s assertion, this is not a case in which the constitutional
violation was so obvious that Bird’s rights were clearly established in the absence of
a materially similar prior case. See Brosseau v. Haugen, 543 U.S. 194, 199 (2004).
Bird points to Christopher v. Harbury, 536 U.S. 403, 412 (2002), in which the
Supreme Court quoted the court of appeals as stating, “‘[W]e think it should be
obvious to public officials that they may not affirmatively mislead citizens for the
purpose of protecting themselves from suit.’” And he contends his amended
complaint alleged that Easton deliberately misled him into thinking his negligence
claims did not require WMRP review because Easton wanted to protect the State
from liability. But he pleaded only conclusory assertions of willful, wanton,
arbitrary, and unlawful conduct by Easton, unsupported by factual allegations of
deliberate or intentional acts. Thus, as the district court held, the question raised by
Bird’s amended complaint was whether Easton established qualified immunity
against Bird’s access-to-courts claim assuming that Easton mistakenly determined the
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WMRP was the incorrect forum for those claims. And in light of the existing
authorities, it was not obvious that such conduct constituted a constitutional
violation.
C. Motion to Reconsider
Bird contends that qualified immunity is inapplicable because Easton’s duty to
refer claims for review by the WMRP is ministerial and nondiscretionary. See
Cummings v. Dean, 913 F.3d 1227, 1241 (10th Cir. 2019) (“Qualified immunity only
shields an official in the exercise of his or her discretion.”). But Bird did not raise
this issue in district court until his reply brief in support of his Rule 59(e) motion to
reconsider. See R. at 359-61. Thus, his argument on appeal addresses only the
district court’s denial of that motion, which we review for an abuse of discretion. See
Elm Ridge Expl. Co. v. Engle, 721 F.3d 1199, 1216 (10th Cir. 2013).
The district court did not expressly consider Bird’s discretionary-function
argument in denying his motion to reconsider. But a district court need not address
arguments first raised in a reply brief when they could have been raised at the outset,
see FDIC v. Kan. Bankers Sur. Co., 840 F.3d 1167, 1173 (10th Cir. 2016) (argument
first made in a motion-to-reconsider reply brief “was raised too late”); and denial of a
motion to reconsider is appropriate when it “advance[s] arguments that could have
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been raised in prior briefing.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000). The denial by the district court was not an abuse of discretion.
III. Conclusion
The district court’s judgment is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
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