Moore v. Diggins ( 2015 )

  •                                                                                  FILED
                                                                         United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                         Tenth Circuit
                                 FOR THE TENTH CIRCUIT                       December 10, 2015
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
          Plaintiff - Appellant,
    ELIAS DIGGINS, Acting Sheriff of the                       No. 15-1271
    Denver Sheriff Department; ZIMMER, RN             (D.C. No. 1:15-CV-00034-LTB)
    - Registered Nurse, Intake RN;                               (D. Colo.)
    CHRISTIAN STOB, Denver Health
    Medical Center Doctor; CARMEN
    KASSETY, Denver Health Medical Center
    Supervisor; DENVER HEALTH
          Defendants - Appellees.
                                 ORDER AND JUDGMENT*
    Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.**
          Appellant George Moore, a pre-trial detainee held at the Denver City Jail, filed a
    42 U.S.C. § 1983 action against numerous defendants alleging constitutional and
             This order and judgment is not binding precedent, except under the doctrines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.
             After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in 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.
    Americans with Disabilities Act violations stemming from the failure to timely provide
    him with a walker or cane.     He appeals from a district court order dismissing his
    complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse
    in part.
           We take the facts from Moore’s Amended Complaint.               Because Moore
    proceeds pro se, we construe his pleadings liberally. See United States v. Pinson, 
    584 F.3d 972
    , 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
    liberally; this rule of liberal construction stops, however, at the point at which we
    begin to serve as his advocate.”). According to Moore’s Amended Complaint, he
    was arrested on October 9, 2014, and brought to intake at the Denver City Jail.
    During intake, Moore met with RN Zimmer and informed her that he needed a cane
    or walker because of his stability issues.      He further informed her he was in
    tremendous pain standing up, sitting down, and walking, and he was disabled as
    defined in Title II of the Americans with Disabilities Act. Zimmer told Moore she
    did not have time to verify his request because she had 40 other inmates to deal with
    and that he’d have to “deal with it” upstairs on the floor where he’d be staying.
    Moore asked to see Zimmer’s supervisor, but Zimmer said her supervisor would also
    tell him to address his concerns upstairs. When Moore was moved upstairs at 7:30
    p.m., a deputy informed him that medical was closed.
           The next day, Moore filed a grievance about his treatment the day before. He
    then saw Dr. Christian Stob, who confirmed that Moore needed a cane or walker, but
    said he did not currently have one to give Moore.1 Moore asked Dr. Stob if he would
    call the other medical departments to get one, but Dr. Stob said “not right now.”
    Although Moore complained about tremendous pain from moving around the facility
    and getting up or sitting down, Dr. Stob sent Moore away without a cane or walker.
          On October 11, Moore’s second full day in jail, Moore’s left hip gave out and
    he collapsed to the floor, causing additional pain to his hip, groin, and lower back.
    Medical staff provided Moore with a walker three hours after he fell. Moore did not
    go to medical until two months later for x-rays. The doctor put in an order for Moore
    to get hip surgery, but medical at the Denver City Jail was told he had to be
    sentenced to the jail to get surgery. Since his fall, Moore has “tremendous pain” in
    his lower back, cannot lay on his left side, has trouble sleeping because of his pain,
    has to lift his left leg by hand when getting in and out of bed, and has to have another
    inmate put on his left shoe and sock, which embarrasses him.           He has become
    depressed because he feels useless and cannot move around like others.
          Moore alleges seven causes of action, which liberally construed amount to a
    § 1983 claim of deliberate indifference and a discrimination claim under Title II of
    the ADA against RN Zimmer, Dr. Stob, the Denver Sheriff’s Department, and
    Denver Health Medical Center. He also alleges that Elias Diggins, the Sheriff of the
    Denver Sheriff’s Department, and Carmen Kassety, the Supervisor of the Denver
             Moore alleges in his Amended Complaint that Dr. Stob verified Moore “in
    fact” had a cane or walker. Moore clarified in his motion for reconsideration that he
    told Dr. Stob he had osteoarthritis, and Dr. Stob looked at Moore’s medical chart to
    verify “Plaintiff did have both a cane & walker on the streets & they were ordered by
    Plaintiff’s Primary Care Provider.”
    Health Medical Center at the Denver Sheriff’s Department, failed to supervise their
    respective departments and employees.
          Because Moore was proceeding in forma pauperis and pro se, the district court
    sua sponte screened Moore’s Amended Complaint under 28 U.S.C. § 1915(e) and
    dismissed it under § 1915(e)(2)(B) on March 23, 2015, without any defendants
    having been served.2 On April 9, Moore moved the district court to reconsider. On
    April 20, he filed a Motion for Leave to Proceed on Appeal Without Prepayment of
    Costs or Fees (first IFP motion).         The district court denied his motion for
    reconsideration and first IFP motion on May 5. Three months later, on August 5,
    Moore filed a second Motion for Leave to Proceed on Appeal Without Prepayment of
    Costs or Fees (second IFP motion). We have jurisdiction to consider Moore’s appeal
    from the district court’s initial order of dismissal, but not from its subsequent order
    denying Moore’s motion to reconsider.3
              Although the district court gave the standards for dismissing under both 28
    U.S.C. § 1915(e)(2)(B)(i) for frivolous or malicious claims and § 1915(e)(2)(B)(ii)
    for failing to state a claim on which relief may be granted, it appears the district court
    dismissed under the latter subsection.
              We construe Moore’s first and second IFP motions as notices of appeal.
    Both listed as appellate issues essentially the same claims Moore made in his
    Amended Complaint, clearly demonstrating his intent to appeal the district court’s
    dismissal of his Amended Complaint and the denial of his motion to reconsider. See
    Fleming v. Evans, 
    481 F.3d 1249
    , 1253 (10th Cir. 2007) (stating that although Fed.
    R. App. P 3 requires a notice of appeal to “designate the judgment, order, or part
    thereof being appealed,” we “liberally construe” the rule’s requirements if the
    litigant’s action “is the functional equivalent of what the rule requires”). Because
    Moore filed his first IFP motion within 30 days of the Order to Dismiss and after he
    filed a motion for reconsideration, it became effective when the district court denied
    his motion for reconsideration. See Fed. R. App. P. 4 (a)(4)(B)(i). Because Moore
           We review de novo the district court’s dismissal of Moore’s Amended Complaint
    under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Kay v. Bemis, 
    500 F.3d 1214
    , 1217 (10th Cir. 2007).       After reviewing Moore’s Amended Complaint, we
    conclude he has stated a claim of deliberate indifference against RN Zimmer and
    Dr. Stob. We will reverse in part as to the deliberate indifference claims against those
    two defendants, and affirm in part as to the remaining claims and parties.
           Claims of denial of medical treatment by pretrial detainees are evaluated under the
    Due Process Clauses of the Fifth and Fourteenth Amendments, which prohibit the
    defendants from undertaking acts that amount to punishment. See Bell v. Wolfish, 
    441 U.S. 520
    , 535 (1979). “Under the Fourteenth Amendment due process clause, ‘pretrial
    detainees are . . . entitled to the degree of protection against denial of medical attention
    which applies to convicted inmates’ under the Eighth Amendment.” Martinez v. Beggs,
    563 F.3d 1082
    , 1088 (10th Cir. 2009) (quoting Garcia v. Salt Lake County, 
    768 F.2d 303
    307 (10th Cir. 1985)).     Thus, a pretrial detainee must show the defendants were
    deliberately indifferent to his serious medical needs, measured by an objective
    component—whether the “harm suffered rises to a level sufficiently serious to be
    cognizable under the Cruel and Unusual Punishment Clause of the Eighth
    did not file the second IFP motion within 30 days after the district court denied his
    motion for reconsideration, we do not have jurisdiction to consider his appeal from
    that order. See Fed. R. App. P. 4(a)(4)(B)(ii); Bowles v. Russell, 
    551 U.S. 205
    , 214
    (2007) (stating that “the timely filing of a notice of appeal in a civil case is a
    jurisdictional requirement”).
    Amendment”—and a subjective component—“that the defendants knew he faced a
    substantial risk of harm and disregarded that risk, by failing to take reasonable measures
    to abate it.” Martinez, 563 F.3d at 1088–89 (internal quotation marks omitted). The
    Supreme Court has cautioned that “an inadvertent failure to provide adequate medical
    care” does not rise to a constitutional violation. Estelle v. Gamble, 
    429 U.S. 97
    , 105–06
           To survive dismissal, Moore’s Complaint must allege facts showing a sufficiently
    serious medical need. We have said that 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.” Sealock v. Colorado, 
    218 F.3d 1205
    , 1209 (10th Cir. 2000). “Delay in
    medical care only constitutes an Eighth Amendment violation where the plaintiff can
    show the delay resulted in substantial harm.”        Id. at 1210.   The substantial harm
    requirement “may be satisfied by lifelong handicap, permanent loss, or considerable
    pain.” Garrett v. Stratman, 
    254 F.3d 946
    , 950 (10th Cir. 2001). We conclude that Moore
    has sufficiently alleged the objective component. When he requested a walker or cane,
    he complained of stability issues and “tremendous pain” to sit down, stand up, or walk
    around. Dr. Stob verified that Moore’s treating physician had prescribed both a cane and
    walker. Further, the delay in treatment resulted in substantial harm: when Moore fell, he
    further injured his hip and complains again of “tremendous pain,” difficulty sleeping,
    increased difficulty in caring for himself, and depression.
           Under the subjective component, Moore “must show that the defendants knew
    he faced a substantial risk of harm and disregarded that risk, by failing to take
    reasonable measures to abate it.” Martinez, 563 F.3d at 1089. Moore has sufficiently
    alleged that RN Zimmer and Dr. Stob knew of and disregarded Moore’s substantial risk
    of harm. Moore alleges that when he spoke with RN Zimmer, he complained about his
    tremendous pain, explained he had stability issues and was disabled under the ADA, and
    needed a cane or a walker. In response, she said she did not have time to deal with him
    and sent him away. As alleged, she knew of Moore’s difficulty walking and tremendous
    pain but did not do anything about it. As to Dr. Stob, he verified that Moore’s treating
    physician prescribed a cane and walker yet did not obtain a cane or walker for Moore or
    call other medical departments to try to find one. Moore alleged that he did not receive a
    walker until the next day, three hours after he fell. In one sense, this is not very long of a
    delay, but “[e]ven a brief delay may be unconstitutional.” Mata v. Saiz, 
    427 F.3d 745
    755 (10th Cir. 2005). The district court went astray when it made inferences against
    Moore. “In determining whether a dismissal is proper, we must accept the allegations of
    the complaint as true and construe those allegations, and any reasonable inferences that
    might be drawn from them, in the light most favorable to the plaintiff.” Kay v. Bemis,
    500 F.3d 1214
    , 1217 (10th Cir. 2007) (internal quotation marks omitted). For example,
    the district court presumed that, because Moore was arrested without his cane or walker,
    “he was able to manage without such device at least temporarily.” The district court also
    assumed that because neither RN Zimmer nor Dr. Stob provided Moore with a cane or
    walker, none were available in the jail. The district court’s presumptions may bear out to
    be factually true, but the district court erred when it made those inferences against Moore
    in evaluating whether his Amended Complaint stated a claim. We conclude that Moore
    has sufficiently alleged facts at this stage to state a claim of deliberate indifference
    against RN Zimmer and Dr. Stob.4
          The district court correctly dismissed Moore’s remaining deliberate indifference
    claims against the other defendants. For Moore’s § 1983 claim to succeed against any
    defendant, he “must show personal involvement or participation in the incident.”
    Grimsley v. MacKay, 
    93 F.3d 676
    , 679 (10th Cir. 1996). Although Moore alleges that
    Kassety and Diggins failed to supervise their employees and departments, he does not
    point to any personal involvement beyond the mere fact that they were supervisors. This
    is insufficient to state a claim based on supervisory liability. See Poolaw v. Marcantel,
    565 F.3d 721
    , 732 (10th Cir. 2009) (“[A] supervisory relationship alone is
    insufficient for liability under § 1983[.]”); Jenkins v. Wood, 
    81 F.3d 988
    , 994–95 (10th
    Cir. 1996) (“[T]he defendant’s role must be more than one of abstract authority over
    individuals who actually committed a constitutional violation.”). His claim against the
    Denver Sheriff’s Department fails because it is not a suable entity under § 1983. See
    Martinez v. Winner, 
    771 F.2d 424
    , 444 (10th Cir. 1985) (dismissing § 1983 claims
    against the City of Denver Police Department because it was not a separate suable entity),
    remanded to consider mootness, 
    475 U.S. 1138
     (1986), on remand, 
    800 F.2d 230
            We go no further than to say that, with regard to the deliberate indifference
    claims against RN Zimmer and Dr. Stob, the district court improperly dismissed
    Moore’s Amended Complaint under 28 U.S.C. § 1915(e)(2)(B)(ii).                    Our
    determination does not prevent the two Defendants, after they are served, from filing
    other defensive motions for judgment in their favor.
    Cir. 1986). Even if we were to interpret this claim as against the municipality, Moore
    failed to allege “official policy as the moving force of the constitutional violation.”
    Monell v. Dep’t of Soc. Servs., 
    436 U.S. 658
    , 694 (1978). Likewise, assuming that the
    Denver Health Medical Center is a state actor based on its contract with the Denver
    Sheriff’s Department and that its actions are thus attributable to the Sheriff’s department
    and municipality, Moore has failed to allege the private entity’s practice or policy caused
    a constitutional violation.
           The district court correctly dismissed Moore’s ADA claims. Title II of the ADA
    provides that “no qualified individual with a disability shall, by reason of such
    disability, be excluded from participation in or be denied the benefits of the services,
    programs, or activities of a public entity, or be subjected to discrimination by any
    such entity.” 42 U.S.C. § 12132. To state a claim under Title II, the plaintiff must
    allege that (1) he is a qualified individual with a disability, (2) who was excluded from
    participation in or denied the benefits of a public entity’s services, programs, or activities,
    and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.
    See 42 U.S.C. § 12132; Robertson v. Las Animas Cty. Sheriff’s Dep’t, 
    500 F.3d 1185
    1193 (10th Cir. 2007).
           As the district court noted, Moore did not allege he was excluded from any
    service, program, or activity on the basis of his disability. Rather, his ADA claims
    appear to parrot his § 1983 claims regarding his medical treatment, but “purely medical
    decisions . . . do not ordinarily fall within the scope of the ADA or the Rehabilitation
    Act.” Fitzgerald v. Corr. Corp. of Am.., 
    403 F.3d 1134
    , 1144 (10th Cir. 2005); see also
    Rashad v. Doughty, 4 Fed. App’x 558, 560 (10th Cir. 2001) (holding that “the failure to
    provide medical treatment to a disabled prisoner, while perhaps raising Eighth
    Amendment concerns in certain circumstances, does not constitute an ADA violation”).
          Accordingly, we reverse the dismissal of Moore’s § 1983 claims for deliberate
    indifference against RN Zimmer and Dr. Stob and affirm the dismissal of the remaining
    claims. Because we determine that Moore’s appeal was taken in good faith, we grant his
    motion to proceed in forma pauperis. We remind Moore that he is obligated to continue
    making partial payments until the entire fee has been paid.
                                                 Entered for the Court
                                                 Bobby R. Baldock
                                                 Circuit Judge