Wishneski v. Andrade , 572 F. App'x 563 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2014
Elisabeth A. Shumaker
Clerk of Court
JOHNATHAN D. WISHNESKI,
Plaintiff - Appellant,
v. No. 13-2199
(D.C. No. 2:12-CV-00540-JCH-CG)
DR. JOSE ANDRADE; BRITTNI (D. N.M.)
BUCKELEW, Lieutenant,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.
Plaintiff Johnathan D. Wishneski filed this prison civil rights action against
defendants Dr. Jose Andrade and Lieutenant Brittni Buckelew (misidentified as
“Buckaloo” in the pleadings) in New Mexico state court. He asserted various federal
and state claims relating to his medical treatment for shoulder pain while housed at
the Lea County Correctional Facility (LCCF) in Hobbs, New Mexico. Following
removal of the action to federal court, the district court granted summary judgment in
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
favor of Ms. Buckelew on the two claims asserted against her. After submission of a
Martinez report,1 the district court also granted summary judgment for Dr. Andrade
on the federal claims and civil conspiracy claim asserted against him, while declining
supplemental jurisdiction over any remaining state tort claims.2 Final judgment was
entered and Mr. Wishneski appealed. On de novo review of summary judgment,
see Tuckel v. Grover, 660 F.3d 1249, 1251 (10th Cir. 2011), and abuse-of-discretion
review of the refusal to exercise supplemental jurisdiction, Koch v. City of Del City,
660 F.3d 1228, 1248 (10th Cir. 2011), we affirm in all but one very limited respect.
The dismissal of the state tort claims was expressly made “with prejudice”—a
disposition we vacate and remand for it to be made “without prejudice.”
I. Ms. Buckelew’s Challenges to Scope of the Appeal
Ms. Buckelew contends we lack jurisdiction to review the district court’s order
granting summary judgment in her favor, because Mr. Wishneski did not specifically
designate that order in his notice of appeal. But “a notice of appeal which names the
final judgment is sufficient to support review of all earlier orders that merge in the
1
“A Martinez report is a judicially authorized investigative report prepared by
prison officials to help the court determine if a pro se prisoner’s allegations have any
factual or legal basis.” Simkins v. Bruce, 406 F.3d 1239, 1240 n.2 (10th Cir. 2005)
(internal quotation marks omitted).
2
It is not entirely clear whether Mr. Wishneski asserted the civil conspiracy
claim under federal law or state law or both. The distinction does not matter for our
disposition here. We also note that even if it were considered solely a state claim, the
district court’s election to resolve it on the merits while declining supplemental
jurisdiction over other state claims would not be impermissible. See Nielander v.
Board of Cnty. Comm’rs, 582 F.3d 1155, 1172 (10th Cir. 2009).
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final judgment,” and “all earlier interlocutory orders merge into final orders and
judgments except when the final order is a dismissal for failure to prosecute.” Miami
Tribe of Okla. v. United States, 656 F.3d 1129, 1137 (10th Cir. 2011) (internal
quotation marks omitted). Thus it is enough here that the notice expressly appeals
from the final judgment entered by the district court when it disposed of all
remaining claims in the case against Dr. Andrade.
As a non-jurisdictional fall-back position, Ms. Buckelew contends that
“[Mr.] Wishneski has failed to adequately articulate a basis for appealing the
dismissal of his claims against [her].” Def./Aplee. Buckelew’s Answer Br. at 7;
see also id. at 8-9 (elaborating on this point). But Mr. Wishneski does specifically
challenge, albeit briefly, the dismissal of Ms. Buckelew from the case, and also
addresses the disposition of the civil conspiracy claim, which implicates
Ms. Buckelew just as it does her alleged co-conspirator, Dr. Andrade. As discussed
below, we ultimately find no merit in Mr. Wishneski’s position (and we do properly
hold him to the limited contentions he raises), but we decline to deny outright all
appellate review on these matters. See generally Adams ex rel. D.J.W. v. Astrue,
659 F.3d 1297, 1301 n.1 (10th Cir. 2011) (applying general rule requiring liberal
construction of pro se filings to pro se appellate brief); Fogle v. Pierson, 435 F.3d
1252, 1262 (10th Cir. 2006) (same).
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II. Factual Background
After undergoing detoxification from the anti-anxiety drug Klonopin at a
Corrections Department mental health facility, Mr. Wishneski was discharged on
February 11, 2010, with a recommendation that he avoid addictive, mood-altering
substances. On March 25, 2010, Dr. Andrade saw him for complaints of left shoulder
pain and prescribed Tramadol, an opiate used for moderate pain. Dr. Andrade
changed the prescription to MS Contin (morphine sulfate) on May 10, 2010, when
Mr. Wishneski continued to complain of pain.
On July 25, 2010, two pills were discovered in Mr. Wishneski’s cell during a
shakedown and were later identified as MS Contin by a nurse at the medical unit.
The nurse left a note for Dr. Andrade informing him that Mr. Wishneski was
hoarding his medication. Disciplinary proceedings for abuse of medication followed,
but were dismissed by the hearing officer, Ms. Buckelew, on August 9, 2010, due to
the reporting officer’s failure to submit a chain of custody report. Mr. Wishneski
alleges he later overheard Ms. Buckelew tell Dr. Andrade over the phone that the
dismissal was based on a technicality and did not mean he had not committed the
offense. Noting he had prescribed the MS Contin on Mr. Wishneski’s agreement not
to misuse the medication, which staff reports now indicated Mr. Wishneski had done,
Dr. Andrade exercised his medical judgment to put Mr. Wishneski back on Tramadol.
He considered the Tramadol to be an alternative treatment appropriate for
Mr. Wishneski’s pain management needs. A medical expert confirmed in an affidavit
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that this treatment decision was consistent with the applicable medical standard of
care.
After two months during which Mr. Wishneski complained of continued pain,
Dr. Andrade reconsidered. Assured by Mr. Wishneski that he would not misuse the
medication and understood it would be discontinued if he did, Dr. Andrade again
prescribed MS Contin. About six months later, Dr. Andrade noted reports that
Mr. Wishneski was selling his medication. Over several appointments, Dr. Andrade
settled on alternative medication, including Tylenol and the nonsteroidal
anti-inflammatory drug (NSAID) Meloxicam, and took Mr. Wishneski off
MS Contin. When Mr. Wishneski continued to complain of pain, Dr. Andrade
replaced the Meloxicam with the NSAID Naproxen. Other medications, such as the
prescription NSAID Indocin and the topical analgesic cream Zostrix, were also tried.
Mr. Wishneski was repeatedly found noncompliant with his medication.
On several occasions in 2010 and 2011, Dr. Andrade recommended that
Mr. Wishneski see an orthopedic surgeon about his shoulder, that MRIs be obtained,
and/or that surgery be done, but these recommendations were denied by the regional
medical director. Finally, an MRI in September 2011 showed impingement
syndrome in the left shoulder and Mr. Wishneski had surgery in January 2012.
III. Claims against Ms. Buckelew
Mr. Wishneski sought damages for pain and suffering allegedly caused by the
discontinuation of his MS Contin prescription. He asserted two broad claims against
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Ms. Buckelew based on her communication with Dr. Andrade regarding the
abuse-of-medication disciplinary proceeding she dismissed for lack of the requisite
chain-of-custody documentation for the pills found in his cell. First, he claimed that
dismissing the charge and then informing Dr. Andrade that the dismissal was not
necessarily an exoneration, leading Dr. Andrade to discontinue the MS Contin,
violated several constitutional rights.3 Second, he claimed that Ms. Buckelew and
Dr. Andrade had actually conspired to violate his rights. The magistrate judge broke
these two claims down into four components for purposes of analysis: a claim for
deliberate indifference to medical needs under the Eighth Amendment; an ancillary
claim for the same conduct invoking the First, Fifth, and Fourteenth Amendments; a
civil conspiracy claim; and an “official capacity” claim implicating the liability of
Ms. Buckelew’s private corporate employer. We focus our review on the magistrate
judge’s recommendation, which was adopted by the district court in granting
Ms. Buckelew’s motion for summary judgment.
A. Claim under the First, Fifth, and Fourteenth Amendments
The magistrate judge categorically rejected Mr. Wishneski’s attempt to inject
ancillary constitutional claims into an Eighth Amendment case about prison medical
3
In addition to the federal constitutional provisions, the complaint also cites in
conclusory fashion “the laws of the State of New Mexico” and the state constitution.
R. Vol. 1 at 17. Although the magistrate judge discussed only the former,
Mr. Wishneski neither objects to this exclusive focus on federal law nor explains how
reliance on state law would cure the dispositive legal deficiencies of his claims. We
therefore limit our review to the magistrate judge’s analysis of the relevant federal
constitutional law.
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care. We have repeatedly eschewed duplicative analyses of Eighth Amendment
claims under other constitutional provisions, explaining that “claims concerning
conditions of confinement [such as prison medical care] ‘remain[] bounded by the
Eighth Amendment, the explicit textual source of constitutional protection in the
prison context.’” Barney v. Pulsipher, 143 F.3d 1299, 1310 n.10 (10th Cir. 1998)
(quoting Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995), and citing Riddle
v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)).
Mr. Wishneski has abandoned his inapposite First Amendment claim. As for
due process, we need not decide whether such a claim can ever properly be asserted
with respect to prison disciplinary matters carrying punitive consequences for inmate
medical care, because here it is clear the Eighth Amendment is the overarching
constitutional value at issue. As explained in our discussion of the Eighth
Amendment claim below, discontinuance of Mr. Wishneski’s MS Contin prescription
was a medical decision made by Dr. Andrade. There is no evidence of any prison
policy, disciplinary directive, or pressure from Ms. Buckelew constraining
Dr. Andrade’s exercise of professional judgment in that regard. Under the authorities
cited, any challenge to his decision is properly brought under the Eighth Amendment.
B. Official Capacity Claim
A private party acting under color of state law to violate the constitutional
rights of another is subject to suit under 42 U.S.C. § 1983. See Wyatt v. Cole,
504 U.S. 158, 161-62 (1992); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
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(1982). But in this circuit, as in most others, to hold a corporation liable under
§ 1983 for employee misconduct, a plaintiff must demonstrate the existence of the
same sort of custom or policy that permits imposition of liability against
municipalities under Monell v. Department of Social Services, 436 U.S. 658, 694
(1978). See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003);
DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d 714, 722-23
(10th Cir. 1988); see also Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 790 n.2
(7th Cir. 2014) (collecting cases). The magistrate judge treated the official capacity
claim against Ms. Buckelew as a claim against her corporate employer and rejected it
for lack of the requisite showing of a causative custom or policy. This is, on its face,
a correct application of the governing law, and Mr. Wishneski does not raise any
meaningful challenge to it on appeal.
C. Individual Capacity Claim under the Eighth Amendment
“Prison officials violate the Eighth Amendment when they are deliberately
indifferent to the serious medical needs of the prisoners in their custody.” Simmat v.
U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) (internal quotation
marks omitted); see also Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). As relevant
here, a non-medical prison officer can be liable for such a violation by “preventing an
inmate from receiving medical treatment or denying access to medical personnel
capable of evaluating the inmate’s condition.” Self v. Crum, 439 F.3d 1227, 1231
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(10th Cir. 2006); see, e.g., Blackmon v. Sutton, 734 F.3d 1237, 1245 (10th Cir. 2013);
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980).
The discontinuance of Mr. Wishneski’s prescription for MS Contin was a
medical decision made by Dr. Andrade. Ms. Buckelew did not deny Mr. Wishneski
access to Dr. Andrade or prevent him from receiving treatment from Dr. Andrade.
While communication with Ms. Buckelew about Mr. Wishneski’s reported abuse of
medication and the result of the ensuing disciplinary proceeding may have informed
Dr. Andrade’s decision, there is no evidence whatsoever that Ms. Buckelew somehow
prevented Dr. Andrade from exercising his own professional judgment in the matter.
Mr. Wishneski insists on appeal that Ms. Buckelew’s communication was the
proximate cause for the discontinuance of the MS Contin, but that is neither a fair
description of the factual record nor a legally sufficient basis for constitutional
liability. Dr. Andrade’s subsequent independent exercise of medical judgment was
clearly the operative proximate cause and, in any event, a prison officer’s accurate
report of facts to a doctor (whatever action the doctor may take thereon) can hardly
be the basis for finding a constitutional violation by the officer. Mr. Wishneski cites
no authority that would support a constitutional claim against Ms. Buckelew on the
facts, and we are aware of none. Summary judgment was properly entered in favor of
Ms. Buckelew on the merits of the Eighth Amendment claim.
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D. Civil Conspiracy Claim
Mr. Wishneski also asserted that the communication between Ms. Buckelew
and Dr. Andrade constituted a civil conspiracy to deprive him of the MS Contin that
he alleges was constitutionally required for his condition. The magistrate judge
concluded that this claim failed for lack of the agreement that is the sine qua non of
conspiracy. See generally Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir.
2010) (discussing civil conspiracy under 42 U.S.C. §§ 1983 & 1985); Santa Fe
Techs., Inc. v. Argus Networks, Inc., 42 P.3d 1221, 1235 (N.M. Ct. App. 2001)
(discussing civil conspiracy under New Mexico law). We agree that the relevant
evidence and allegations, involving nothing more than Ms. Buckelew informing
Dr. Andrade of the facts and allegations relating to Mr. Wishneski’s disciplinary
prosecution for abuse of medication, are insufficient as a matter of law to support a
civil conspiracy claim.
In sum, the district court properly granted summary judgment on all claims
asserted against Ms. Buckelew. We turn now to the claims involving Dr. Andrade.
IV. Claims against Dr. Andrade
The complaint nominally asserted four claims against Dr. Andrade: a due
process claim, a civil conspiracy claim, an Eighth Amendment claim, and a state tort
claim for intentional infliction of emotional distress. As with Ms. Buckelew, the
magistrate judge recognized and addressed an additional, official capacity claim.
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We affirm the district court’s disposition of these claims for basically the reasons
stated by the magistrate judge.
A. Due Process Claim
We have little to add here to what we said in connection with the due process
claim against Ms. Buckelew. Of course, Mr. Wishneski’s due process claim against
Dr. Andrade necessarily has a somewhat different focus. It appears to rest on the
notion that a prison doctor cannot take account of reports of medicinal abuse when
deciding on a proper treatment unless the inmate has been charged and found guilty
of the abuse in a disciplinary proceeding. That is a facially dubious and legally
unsupported premise. But in any event, the critical point is that the issue whether
Dr. Andrade impermissibly substituted other medications for MS Contin after noting
reports regarding his patient’s misuse of the drug is fundamentally an issue about
medical care and, as such, is to be resolved under Eighth Amendment standards
specifically formulated to address such issues. See Barney, 143 F.3d at 1310 n.10
and cases cited therein.
B. Official Capacity Claim
We also need say very little more about the official capacity claim against
Dr. Andrade. To be sure, he had a different corporate employer than Ms. Buckelew,
but the record is just as devoid of evidence regarding any relevant custom or policy
of Dr. Andrade’s employer as it is of such evidence relating to Ms. Buckelew’s
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employer. And without such evidence, the official capacity claim must fail.
See Dubbs, 336 F.3d at 1216; DeVargas, 844 F.2d at 722-23.
C. Individual Capacity Claim under the Eighth Amendment
In terms of constitutional basis and target defendant, the Eighth Amendment
claim asserted against Dr. Andrade is Mr. Wishneski’s most apt claim. But the facts
of record cannot sustain a triable case under the controlling deliberate-indifference
standard.
Under that standard, “a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment.” Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (internal
quotation marks omitted). Even more to the point here, “[d]isagreement with a
doctor’s particular method of treatment, without more, does not rise to the level of an
Eighth Amendment violation.” Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir.
2010) (internal quotation marks omitted). And in assessing the chosen method of
treatment, it must be kept in mind that a doctor is required to take only “reasonable
measures to abate” the inmate’s medical condition. Callahan, 471 F.3d at 1159.
Accordingly, insofar as Mr. Wishneski challenges Dr. Andrade’s medical
judgment in substituting other medications for the MS Contin the doctor suspected
had been misused, he clearly cannot prevail. Indeed, another panel of this court
reached the same conclusion under the same principles on similar facts in Todd v.
Bigelow, 497 F. App’x 839, 841-42 (10th Cir. 2012) (unpublished), cert. denied,
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133 S. Ct. 1251 (2013).4 To the extent Mr. Wishneski contends his claim goes
beyond just a matter of proper medical judgment, by alleging Dr. Andrade denied the
opiate pain medication to punish him for misconduct that the prison could not or
would not prosecute, his claim rests on rank speculation contrary to the actual
medical evidence in the record. That is not an adequate basis upon which to oppose
summary judgment. See Self, 439 F.3d at 1230 (“To defeat a motion for summary
judgment, evidence, including testimony, must be based on more than mere
speculation, conjecture, or surmise.” (internal quotation marks omitted)).
Mr. Wishneski insists he needed discovery to show Dr. Andrade’s real motive
in discontinuing the MS Contin was punishment. But he offers no explanation as to
how discovery might have led to evidence indicating Dr. Andrade was lying about
the medical judgment behind his relevant treatment decisions. Baseless speculation
offered in opposition to summary judgment is not somehow excused by yet more
speculation that discovery might uncover evidence that could be used to oppose
summary judgment—“a plaintiff cannot defeat a motion for summary judgment
by . . . amplifying [his conclusory allegations] with speculation about what discovery
might uncover,” Bryant v. O’Connor, 848 F.2d 1064, 1067 (10th Cir. 1988).
Furthermore, Fed. R. Civ. P. 56(d) (formerly Rule 56(f)) specifies a procedure,
requiring a motion with supporting affidavit, for litigants who seek to forestall
4
The unpublished Todd decision is not, of course, binding precedent, but its
striking congruence with our disposition warrants citation for its persuasive value.
See generally Fed. R. App. P. 32.1 and 10th Cir. R. 32.1(A).
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summary judgment by claiming a need for additional discovery, and litigants who fail
to properly avail themselves of this procedure may not later challenge summary
judgment on this basis. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir.
2010) (noting requirements of rule apply to pro se litigants). Mr. Wishneski did not
comply with Rule 56(d) motion in the summary judgment proceedings here.
D. Civil Conspiracy Claim
Mr. Wishneski claims Dr. Andrade conspired with Ms. Buckelew to deprive
him of his constitutional rights. This claim fails against Dr. Andrade for the same
reason it failed against Ms. Buckelew: the record is devoid of evidence of the
requisite agreement between the alleged conspirators.
E. State Tort Claim
After disposing of all of Mr. Wishneski’s federal claims, the district court
elected not to exercise supplemental jurisdiction over any remaining state law claims.
Mr. Wishneski does not argue that this discretionary decision was in error and thus
has waived any objection to its procedural or substantive correctness.
But “parties cannot waive lack of subject matter jurisdiction,” Henry v. Office
of Thrift Supervision, 43 F.3d 507, 511-12 (10th Cir. 1994), and this court has a
“responsibility to correct an action by the district court that exceeds its jurisdiction,”
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006). We have
such an action here: after declining to exercise jurisdiction over the state law claims,
the district court dismissed them “with prejudice”—a disposition that necessarily
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requires jurisdiction, id. (reaffirming “our duty to correct a district court disposition
erroneously entered ‘with prejudice’ on jurisdictional grounds”). We therefore
vacate the dismissal of affected state tort claims and remand them for entry of a
judgment of dismissal without prejudice.
V. Additional Procedural Matters
Mr. Wishneski raises several procedural objections. First, he contends the
district court should have appointed counsel for him.5 Appointment of counsel in
civil cases is the rare exception, not the rule. “It is not enough that having counsel
appointed would have assisted [the prisoner] in presenting his strongest possible case,
[as] the same could be said in any case.” Steffey v. Orman, 461 F.3d 1218, 1223
(10th Cir. 2006) (internal quotation marks omitted) (alterations in original). Rather,
appointment of counsel is required “[o]nly in those extreme cases where the lack of
counsel results in fundamental unfairness.” Id. (internal quotation marks omitted).
“In evaluating a prisoner’s request for appointed counsel, the court should consider
5
Mr. Wishneski never asked the district court to appoint counsel. Rather, he
asked the magistrate judge to stay the proceedings to give him time obtain his own
counsel. He now insists the request should have been construed as a motion to
appoint counsel, but, as explained later in this decision, he did not seek district court
review of the magistrate judge’s denial of the request and we thus lack jurisdiction to
consider the matter. He also insists the district court should have acted sua sponte to
appoint counsel. That point directly challenges (in)action by the district court, so we
have jurisdiction to consider it. We therefore reach and decide whether appointment
of counsel was appropriate in this case. See generally Rucks v. Boergermann,
57 F.3d 978, 979 (10th Cir. 1995) (holding appellate court “may independently
examine the propriety of . . . a request [for appointment of counsel]” where district
court failed to provide rationale for not appointing counsel).
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the merits of the prisoner’s claims, the nature and complexity of the factual and legal
issues, and the prisoner’s ability to investigate the facts and present his claims.” Id.
at 1224 (internal quotation marks omitted). Considering these factors in light of the
strict governing standard, we conclude that appointment of counsel was not
warranted here—and certainly not as a matter of sua sponte obligation for the district
court. Mr. Wishneski’s claims lack merit and their inadequacy is not a function of
complex legal or factual issues imposing a significant burden of development or
presentation on him. The facts and law dispositive of his case were sufficiently
explored by the court without the need for additional elaboration by counsel.
Second, Mr. Wishneski challenges Dr. Andrade’s removal of the case from
state to federal court several months after a deputy sheriff attempted to serve both
defendants by leaving copies of the summons and complaint at LCCF in November
2011. Removal had to be sought within thirty days of service of the summons or
receipt of the complaint. See 28 U.S.C. § 1446(b) (2011) (now at § 1446(b)(1)6).
Neither defendant signed the summonses to indicate receipt. Ms. Buckelew
nevertheless made a timely appearance and did not seek removal. But Dr. Andrade,
averring that he did not receive a copy of the summons and complaint through service
or otherwise until April 23, 2012, entered his appearance on that date. Within thirty
6
The December 2011 amendments to § 1446 do not apply to this case, which
was commenced in state court well before their effective date (thirty days after
enactment). See Federal Courts Jurisdiction and Venue Clarification Act of 2011,
Pub. L. No. 112-63, Title I, § 105, 125 Stat. 758, 962 (Dec. 7, 2011).
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days, on May 18, 2012, he filed a notice of removal based on federal-question
jurisdiction, noting Ms. Buckelew’s consent to removal.
Mr. Wishneski raises two objections to removal: (1) Dr. Andrade’s affidavit
was an inadequate basis on which to decide when service was effected on him;7 and
(2) removal was improper given the then-upcoming trial date scheduled for the claim
against Ms. Buckelew. As for the first objection, Mr. Wishneski complains that
Dr. Andrade’s affidavit was “self serving” and “bare bones,” Aplt. Opening Br. at 13,
but neither of these informal criticisms goes to its legal sufficiency. Dr. Andrade
properly addressed factual matters within his personal knowledge, see Sanchez v.
Vilsack, 695 F.3d 1174, 1180 n.4 (10th Cir. 2012), and the district court was not
required, as Mr. Wishneski suggests, to obtain additional affidavits to corroborate
Dr. Andrade. As for the second objection, the initial trial setting for the claim against
Ms. Buckelew, soon obviated by her own motion for summary judgment, did not
deprive Dr. Andrade of his statutory right to remove the case upon timely notice (and
Ms. Buckelew’s consent) under § 1446.
Mr. Wishneski’s third procedural objection concerns his mental health records.
He complains they should not have been submitted and considered in connection with
7
Mr. Wishneski does not challenge the use of Dr. Andrade’s service date to
initiate a second thirty-day removal period consistent with the newly added and
not-yet-effective provision in § 1446(b)(2)(B) (“Each defendant shall have 30 days
after receipt by or service on that defendant . . . to file the notice of removal.”).
See supra note 6. At the time, there was a split in authority on that point and this
circuit had not taken a position. We need not do so here.
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Dr. Andrade’s motion for summary judgment (the magistrate judge did, however,
grant Mr. Wishneski’s motion to seal the records). We agree with the district court’s
commonsense assessment that the records were potentially relevant to Dr. Andrade’s
decision to prescribe/discontinue medications for Mr. Wishneski. Including such
records was thus entirely consistent with the purpose of the Martinez report: “to help
the court determine if a pro se prisoner’s allegations have any factual or legal basis,”
Simkins, 406 F.3d at 1240 n.2 (internal quotation marks omitted).
Finally, Mr. Wishneski complains briefly of some matters decided by the
magistrate judge under 28 U.S.C. § 636(b)(1)(A) for which he failed to seek district
court review. These include orders denying his request for a temporary stay of the
case to secure counsel and his motion to amend (more accurately, supplement) the
complaint to add claims based on post-filing events. Absent the parties’ consent
under § 636(c), we lack jurisdiction to directly review orders issued by the magistrate
judge. S.E.C. v. Merrill Scott & Assocs., 600 F.3d 1262, 1269 (10th Cir. 2010);
see also 28 U.S.C. § 1291 (specifying our jurisdiction to review district court orders).
Mr. Wishneski complains that the magistrate judge did not include in his orders the
mandatory warning that a failure to file timely objections with the district court
would work a waiver of any unvoiced objections (pursuant to our “firm waiver rule”).
See Jones v. Salt Lake Cnty., 503 F.3d 1147, 1152 (10th Cir. 2007) (noting firm
waiver rule is inapplicable to pro se party not given such warning). Mr. Wishneski
confuses our waiver rule for magistrate judge recommendations reviewed by the
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district court under § 636(b)(1)(B)—a non-jurisdictional rule for which equitable
conditions and exceptions are appropriate—with the prohibition on our direct review
of magistrate judge decisions issued under § 636(b)(1)(A) that a district court judge
has not considered—a jurisdictional limitation for which equitable conditions and
exceptions are inapposite.8 See generally Watkins v. Leyba, 543 F.3d 624, 627
(10th Cir. 2008) (“Courts have ‘no authority to create equitable exceptions to
jurisdictional requirements.’” (quoting Bowles v. Russell, 551 U.S. 205, 214 (2007))).
VI. Conclusion
For the reasons stated above, the judgment of the district court is affirmed in
all respects but one. The dismissal with prejudice of the state tort claims over which
the district court refused to exercise supplemental jurisdiction is vacated and those
claims are remanded for entry of a judgment of dismissal without prejudice.
Mr. Wishneski’s pending motion for leave to appeal in forma pauperis (IFP) is denied
as moot, because the district court has already granted him IFP status for this appeal.
See Fed. R. App. P. 24(a)(2). We remind him that he is obligated to continue making
partial payments until the entire fee is paid.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
8
The basic distinction between the two statutory provisions is summarized in
First Union Mortgage Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000).
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