Tennyson v. Raemisch ( 2015 )


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  •                                                                        FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
    
                                                                    December 30, 2015
                       UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                    TENTH CIRCUIT                       Clerk of Court
    
    
    
     AUDREY L. TENNYSON,
    
                  Plaintiff - Appellant,
    
     v.                                                      No. 15-1166
                                                (D.C. No. 1:15-CV-00707-MSK-CBS)
     RICK RAEMISCH, CDOC Director;                            (D. Colo.)
     MICHAEL MILLER, CCCF Warden;
     MELINDA McMILLIAN, CCCF
     Bookkeeper; LOUIS CABLING,
     CCCF Head Physician; JUDY
     BREZEDINE, CCCF Health Servs.
     Admin.; LAURIE KNAPP, CCCF
     Clinical Supervisor; DOUG
     ROBERTS, PPMU Med. Monitor; and
     ANTHONY DECESARO, CDOC
     Grievance Review Officer,
    
                  Defendants - Appellees.
    
    
                               ORDER AND JUDGMENT *
    
    
    Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
    
    
    
    
          *
                 After examining the briefs and appellate record, this panel has
    decided 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          This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
    Procedure 32.1 and Tenth Circuit Rule 32.1.
          Plaintiff-Appellant Audrey Tennyson, proceeding pro se, appeals from the
    
    district court’s order denying Mr. Tennyson’s motion for a preliminary
    
    injunction. 1 Exercising our jurisdiction under 28 U.S.C. § 1292(a)(1), and
    
    construing Mr. Tennyson’s filings liberally, see Garza v. Davis, 
    596 F.3d 1198
    ,
    
    1201 n.2 (10th Cir. 2010), we affirm the district court’s order denying Mr.
    
    Tennyson’s request for a preliminary injunction.
    
    
    
    
          1
                  Mr. Tennyson also purports—in his opening brief—to appeal the
    district court’s order dismissing Defendant Anthony DeCesaro. However, Mr.
    Tennyson failed to make any mention of this order in his notice of appeal, as
    required under Federal Rule of Appellate Procedure 3(c)(1)(B) (requiring that a
    notice of appeal “designate the judgment, order, or part thereof being appealed”).
    Moreover, his opening brief cannot serve as the functional equivalent of a notice
    of appeal because it was not filed within thirty days of the district court’s order
    dismissing Defendant DeCesaro. See Smith v. Barry, 
    502 U.S. 244
    , 249 (1992)
    (“[The Federal Rules] do not preclude an appellate court from treating a filing
    styled as a brief as a notice of appeal . . . if the filing is timely under Rule 4 and
    conveys the information required by Rule 3(c).” (emphasis added)); Fed. R. App.
    P. 4(a)(1)(A) (“In a civil case, . . . the notice of appeal required by Rule 3 must be
    filed with the district clerk within 30 days after entry of the judgment or order
    appealed from.”). In any event, even if we could put aside Mr. Tennyson’s failure
    to file a notice of appeal as to this order, we lack jurisdiction to consider a ruling
    dismissing fewer than all of the defendants at this interlocutory stage and most of
    the defendants remain in the litigation. See 28 U.S.C. § 1291 (granting the courts
    of appeals “jurisdiction of appeals from all final decisions of the district courts”);
    Utah v. Norton, 
    396 F.3d 1281
    , 1286 (10th Cir. 2005) (“Final decisions are those
    that ‘“end[] the litigation on the merits and leave[] nothing for the court to do but
    execute the judgment.”’ A final judgment is one that terminates ‘“all matters as
    to all parties and causes of action.”’” (alterations in original) (citations omitted));
    see also Lopez v. Roark, 560 F. App’x 809, 811 (10th Cir. 2014) (noting that
    district court’s dismissal of all claims against some but not all of the defendants
    was “not [a] final decision[]” and could not be appealed at the interlocutory
    stage).
    
                                              2
          Mr. Tennyson, an inmate within the Colorado Department of Corrections
    
    who is currently incarcerated at Crowley County Correctional Facility in Olney
    
    Springs, Colorado, filed suit under 42 U.S.C. § 1983 alleging, inter alia, that the
    
    defendants have unconstitutionally refused to provide him with sufficient personal
    
    hygiene items and Zantac, an over-the-counter medication used to treat
    
    Gastroesophageal Reflux Disease (“GERD”). Subsequently, he filed a motion for
    
    a preliminary injunction, asking the district court to order defendants to
    
    immediately begin providing him with those things. The court denied the motion,
    
    and Mr. Tennyson timely filed this appeal. 2
    
          2
                 After the district court denied Mr. Tennyson’s motion for a
    preliminary injunction, pursuant to Fed. R. Civ. P. 59(e), he filed a motion to alter
    or amend the order denying his initial motion. The district court summarily
    denied this second motion for the same reasons set forth in its initial order. Mr.
    Tennyson’s notice of appeal only refers to the district court’s order denying his
    motion to alter or amend. However, construing Mr. Tennyson’s filings liberally,
    see Garza, 596 F.3d at 1201 n.2, we believe it is very likely that his true appellate
    target was the court’s initial order denying his preliminary-injunction motion; his
    appeal would have been timely as to this order (as well as to the subsequent order
    denying his motion to alter or amend). In this regard, his appellate briefing
    challenges the court’s conclusions in denying his preliminary-injunction motion
    and, more specifically, does not invoke the discrete standards for relief under
    Rule 59(e) or attempt to make arguments calculated to satisfy them. See
    generally Adams v. Reliance Standard Life Ins. Co., 
    225 F.3d 1179
    , 1186 n.5
    (10th Cir. 2000) (“[A] motion for reconsideration ‘should be granted only to
    correct manifest errors of law or to present newly discovered evidence.’” (quoting
    Phelps v. Hamilton, 
    122 F.3d 1309
    , 1324 (10th Cir. 1997)). Accordingly, we are
    inclined to view Mr. Tennyson’s specification in his notice of appeal of the order
    denying his motion to alter or amend as a harmless mistake and focus instead on
    the order denying his preliminary-injunction motion. See Sanabria v. United
    States, 
    437 U.S. 54
    , 67 n.21 (1978) (“A mistake in designating the judgment
    appealed from is not always fatal, so long as the intent to appeal from a specific
                                                                            (continued...)
    
                                              3
          We review the district court’s denial of the motion for a preliminary
    
    injunction for an abuse of discretion. See Little v. Jones, 
    607 F.3d 1245
    , 1250
    
    (10th Cir. 2010). “A movant is entitled to a preliminary injunction if he can
    
    establish the following: (1) a substantial likelihood of success on the merits of the
    
    case; (2) irreparable injury to the movant if the preliminary injunction is denied;
    
    (3) the threatened injury to the movant outweighs the injury to the other party
    
    under the preliminary injunction; and (4) the injunction is not adverse to the
    
    public interest.” Kikumura v. Hurley, 
    242 F.3d 950
    , 955 (10th Cir. 2001).
    
    “Because a preliminary injunction is an extraordinary remedy, the right to relief
    
    must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 
    321 F.3d 1250
    , 1256 (10th Cir. 2003). Furthermore, where, as here, the movant seeks to
    
    disturb the status quo, he has an “even heavier burden of showing that the four
    
    factors listed above weigh heavily and compellingly in movant’s favor before
    
    such an injunction may be issued.” Kikumura, 242 F.3d at 955 (quoting SCFC
    
          2
           (...continued)
    ruling can fairly be inferred by probing the notice and the other party was not
    misled or prejudiced.”); Nolan v. U.S. Dep’t of Justice, 
    973 F.2d 843
    , 846 (10th
    Cir. 1992) (“The requirements of Rule 3 [of the Federal Rules of Appellate
    Procedure] should be liberally construed.”). In any event, even if we viewed Mr.
    Tennyson as challenging the court’s order denying his motion to alter or amend,
    given the more rigorous standards for relief that govern such motions (i.e.,
    requiring a showing of manifest errors of law or newly discovered evidence), Mr.
    Tennyson’s failure to frame his arguments to address them, and our ultimate
    conclusion that the district court did not abuse its discretion in denying his
    preliminary-injunction motion, it is patent that the outcome that we reach here
    would be the same.
    
    
                                              4
    ILC, Inc. v. Visa USA, Inc., 
    936 F.2d 1096
    , 1098 (10th Cir. 1991)). Because the
    
    first of the factors listed above—likelihood of success on the merits—resolves the
    
    instant appeal, we confine our analysis to that issue. Cf. Republican Party of
    
    N.M. v. King, 
    741 F.3d 1089
    , 1092 (10th Cir. 2013) (resolving disposition of the
    
    injunction at the first step of our traditional test).
    
              Mr. Tennyson argues that the defendants’ refusal to provide him with
    
    personal hygiene products and Zantac free of charge constitutes a violation of the
    
    Eighth Amendment. Under well-established law, “[a] prison official’s ‘deliberate
    
    indifference’ to a substantial risk of serious harm to an inmate violates the Eighth
    
    Amendment.” Farmer v. Brennan, 
    511 U.S. 825
    , 828 (1994). “Deliberate
    
    indifference has both an objective and subjective component. The medical need
    
    must be sufficiently serious to satisfy the objective component.” Hunt v. Uphoff,
    
    
    199 F.3d 1220
    , 1224 (10th Cir. 1999) (citation omitted). “In terms of the
    
    subjective component, . . . a plaintiff must establish that defendant(s) knew he
    
    faced a substantial risk of harm and disregarded that risk, ‘by failing to take
    
    reasonable measures to abate it.’” Id. (quoting Farmer, 511 U.S. at 847). Mr.
    
    Tennyson contends that the defendants have been deliberately indifferent to his
    
    medical needs by refusing to provide (1) personal hygiene products, and (2) his
    
    once-prescribed medication for GERD (i.e., Zantac). However, he fails to
    
    demonstrate a likelihood of success under the Eighth Amendment with regard to
    
    either.
    
    
                                                 5
          Beginning with the alleged lack of access to personal hygiene products, this
    
    court has previously made clear that “[a] deprivation of hygiene items without
    
    any corresponding injury would not state an Eighth Amendment violation.”
    
    Whitington v. Ortiz, 
    472 F.3d 804
    , 808 (10th Cir. 2007); see also Scott v. Case
    
    Manager Owens (SCF), 80 F. App’x 640, 643 (10th Cir. 2003) (“Scott has alleged
    
    nothing that suggests he has been subjected to inhumane conditions of
    
    confinement. . . . Although a denial of basic hygiene items might meet this
    
    standard under extreme conditions, Scott has not come close to alleging a
    
    substantial risk of serious harm in this case.” (citations omitted)). Here, neither
    
    Mr. Tennyson’s motion nor his attached declaration makes any mention of an
    
    injury he has suffered as a result of the alleged deprivation of hygiene products.
    
    He has thus failed to demonstrate any likelihood of success on the merits with
    
    regard to this contention.
    
          Turning to the alleged deprivation of Zantac, Mr. Tennyson has failed to
    
    make any showing that might satisfy the subjective component of the deliberate
    
    indifference test. As noted above, the subjective component requires that the
    
    plaintiff establish that the defendants knew he faced “a substantial risk of harm.”
    
    Hunt, 199 F.3d at 1224. Here, Mr. Tennyson’s motion makes no
    
    argument—beyond a bare conclusory assertion reciting the legal test—that any
    
    defendant knew of and disregarded a substantial risk of harm resulting from his
    
    inability to obtain Zantac. Neither does his attached declaration aver that any
    
    
                                              6
    defendant knew of such a risk. Without any showing—based on pleaded
    
    facts—that might satisfy this component of the deliberate indifference test, we
    
    cannot find that Mr. Tennyson has demonstrated a substantial likelihood of
    
    success on the merits.
    
          We note that Mr. Tennyson does aver that Dr. Cabling had previously
    
    prescribed him Zantac and that he told the doctor that he would be “in pain all the
    
    time” without the medication. R., Vol. I, at 58. However, these facts alone are
    
    insufficient to show that Dr. Cabling was aware that Mr. Tennyson faced a
    
    substantial risk of harm without Zantac. GERD—also known as acid reflux—is a
    
    common problem and in many instances is not a serious condition warranting
    
    Eighth Amendment scrutiny. See, e.g., Watson-El v. Wilson, No. 08 C 7036, 
    2010 WL 3732127
    , at *13 (N.D. Ill. Sept. 15, 2010) (“The court finds as a matter of
    
    law that the plaintiff’s acid reflex did not rise to the level of a serious medical
    
    need for purposes of Eighth Amendment analysis.”); Fox v. Rodgers, No.
    
    08-CV-14727, 
    2010 WL 2605940
    , at *3 (E.D. Mich. June 8, 2010) (“Plaintiff falls
    
    short of satisfying the objective component. He did not present any authority for
    
    the proposition that his acid reflux disease presented a serious medical need.”),
    
    report and recommendation adopted, No. 08-CV-14727, 
    2010 WL 2605832
     (E.D.
    
    Mich. June 25, 2010). As explained below, neither the earlier prescription nor
    
    Mr. Tennyson’s statement about constant pain demonstrate that Dr. Cabling knew
    
    that Mr. Tennyson’s case of GERD was a serious one.
    
    
                                               7
          First, it appears, according to Mr. Tennyson’s declaration, that the prison
    
    previously provided common over-the-counter medications free of charge through
    
    a prescription system. See R., Vol. I, at 58 (averring that, prior to the policy
    
    change requiring inmates to purchase such medication through the commissary,
    
    Mr. Tennyson had received both Zantac and Tylenol by prescription). Thus the
    
    fact that Mr. Tennyson had previously received a prescription for Zantac from Dr.
    
    Cabling does not necessarily indicate that his condition was a serious one. 3
    
    Accordingly, Dr. Cabling’s knowledge of the earlier prescription does not support
    
    the inference that he was aware that Mr. Tennyson suffered from a serious case of
    
    GERD that could form the basis of an Eighth Amendment claim.
    
          As for Mr. Tennyson’s statement that he would “be in pain all the time,”
    
    the relevant question here is not whether Dr. Cabling was aware that he would
    
    suffer pain from the denial of Zantac, but rather whether he was aware that this
    
    denial would cause the kind of pain that would be deemed objectively serious for
    
    Eighth Amendment purposes. See Gee v. Pacheco, 
    627 F.3d 1178
    , 1192 n.5 (10th
    
    Cir. 2010) (noting that even where information concerning a medical diagnosis is
    
          3
                 For this reason, this is not a case in which a doctor’s recommended
    treatment for a medical condition evinces his awareness of the seriousness of the
    condition for Eighth Amendment purposes. Cf. Mata v. Saiz, 
    427 F.3d 745
    , 751
    (10th Cir. 2005) (“[A] ‘medical need is sufficiently serious if it is one that has
    been diagnosed by a physician as mandating treatment . . . .’” (quoting Sealock v.
    Colorado, 
    218 F.3d 1205
    , 1209 (10th Cir. 2000))). Mr. Tennyson has made no
    showing that Dr. Cabling mandated treatment for his GERD; he avers only that he
    had a prescription at a time when inmates could obtain prescription medications
    for non-serious conditions.
    
                                               8
    included in a complaint, a plaintiff “may still fail to establish the existence of a
    
    serious medical need that can support an Eighth Amendment claim”). Not every
    
    twinge of pain suffered by a prisoner places a medical professional under a
    
    constitutional obligation to act. See Al-Turki v. Robinson, 
    762 F.3d 1188
    , 1193
    
    (10th Cir. 2014) (“[N]ot every twinge of pain suffered as a result of delay in
    
    medical care is actionable . . . .” (quoting Kikumura, 461 F.3d at 1292)).
    
          Here, Mr. Tennyson did not at any point, according to his averments, tell
    
    Dr. Cabling about the particular severity of his alleged pain or the other elements
    
    of discomfort that he claims resulted from the denial of Zantac. 4 Cf. Rowe v.
    
    Gibson, 
    798 F.3d 622
    , 624 (7th Cir. 2015) (prisoner’s “continuous claims of
    
    severe pain” caused by GERD could support finding of deliberate indifference
    
    (emphasis added)); Mata v. Saiz, 
    427 F.3d 745
    , 756 (10th Cir. 2005) (in contrast
    
    to the present case, prisoner’s complaint of chest pains could support deliberate
    
    indifference claim). Nor has Mr. Tennyson alleged that he had a history of
    
    experiencing severe symptoms without Zantac and that Dr. Cabling was aware of
    
          4
                 Mr. Tennyson’s declaration states that since he stopped receiving
    Zantac, he has had “countless sleepless nights” and “[his] chest burns so bad” that
    he “contemplates inducing [himself] to vomit.” R., Vol. I, at 58. While he avers
    that he has “tried to get other med staff to intervene,” he makes no specific
    allegation that he has communicated the severity of his symptoms to Dr. Cabling
    or anyone else. Without any such averment, on these facts, we cannot conclude
    that Mr. Tennyson has made a showing that would satisfy the subjective
    component of the deliberate indifference standard. Cf. Greeno v. Daley, 
    414 F.3d 645
    , 655 (7th Cir. 2005) (“[T]here is no requirement that a prisoner provide
    ‘objective’ evidence of his pain and suffering—self-reporting is often the only
    indicator a doctor has of a patient’s condition.”).
    
                                               9
    any such medical history. Cf. McDaniels v. Lee, 405 F. App’x 456, 458 (11th Cir.
    
    2010) (“[A] plaintiff may show subjective knowledge by offering specific facts
    
    showing that a defendant knew of a plaintiff’s medical history.”). In sum, Mr.
    
    Tennyson has not shown that Dr. Cabling knew that the denial of Zantac would
    
    cause the kind of pain that could form the basis of a claim under the Eighth
    
    Amendment, and he thus has failed to demonstrate any likelihood of success on
    
    the merits of his deliberate indifference claim.
    
           For the reasons stated above, we AFFIRM the district court’s denial of Mr.
    
    Tennyson’s motion for a preliminary injunction. We note that the district court
    
    granted Mr. Tennyson leave to proceed on appeal pursuant to 28 U.S.C. § 1915 on
    
    July 6, 2015 and assessed partial payments of the appellate costs and fees. In
    
    light of the district court’s order, we DENY as moot the motion for leave to
    
    proceed on appeal without prepayment of costs and fees that Mr. Tennyson filed
    
    in this court on July 2, 2015, and we VACATE this court’s order of July 2, 2015
    
    assessing costs and fees. Mr. Tennyson is reminded of his obligation to continue
    
    making partial payments of the appellate fees as ordered by the district court until
    
    they are paid in full. 5
    
           5
                  Following a full round of briefing by the parties, Mr. Tennyson
    submitted a document styled, “Motion to Cite A Supplemental Authority,” which
    our court filed on December 23, 2015. This document includes a citation to a
    medical treatise; generally speaking, Mr. Tennyson contends that this authority
    bolsters his position regarding the seriousness of GERD. We grant Mr.
    Tennyson’s motion and have given due consideration to the contents of this filing
                                                                           (continued...)
    
                                              10
          For the reasons stated above, we AFFIRM the district court’s denial of Mr.
    
    Tennyson’s motion for a preliminary injunction.
    
    
                                                Entered for the Court
    
    
                                                JEROME A. HOLMES
                                                Circuit Judge
    
    
    
    
          5
           (...continued)
    in our disposition of this case.
    
                                           11