Van Riper v. Correctional Medical Services , 44 F. App'x 445 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 28 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
COURTNEY J. VAN RIPER,
Plaintiff - Appellant,
v. No. 01-8088
(D.C. No. 00-CV-149-D)
CORRECTIONAL MEDICAL (D. Wyoming)
SERVICES, a Missouri corporation;
JOHN COYLE, M.D.; DEBRA
SWAN; BRENDA POWERS,
individually,
Defendants - Appellees,
and
JEFF DEISS,
Defendant.
ORDER AND JUDGMENT *
Before MURPHY , ANDERSON , and HARTZ , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
After examining the briefs and appellate record, this panel has determined
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.
Plaintiff Courtney J. Van Riper, a prisoner of the State of Wyoming
proceeding pro se , filed this suit under 28 U.S.C. § 1983 against defendants,
asserting that they were deliberately indifferent to his serious medical needs,
denied him physician-prescribed medication, denied him necessary medical
treatment, and retaliated against him. The district court granted summary
judgment in favor of defendants and plaintiff appeals. We have jurisdiction under
28 U.S.C. § 1291, and affirm.
PROPOSED ABATEMENT
Defendants have moved to abate the appeal on the basis that their liability
insurer, PHICO, was declared insolvent and is being liquidated by the State of
Pennsylvania. Defendants submit that the full faith and credit statute, 28 U.S.C.
§ 1738, requires this court to honor the February 1, 2002 order of the
Commonwealth Court of Pennsylvania purporting to stay all proceedings in which
PHICO has a duty to defend.
We deny the request. PHICO is not a party to this appeal. It was fully
briefed at the time of the motion to abate and the generation of further attorney
-2-
fees will be minimal. In any case, a state court simply has no power to enjoin an
action in federal court. Baker by Thomas v. Gen. Motors Corp. , 522 U.S. 222,
236 n.9 (1998). Although a federal court may very well decline to decide an
in rem action for property involved in ongoing state court insurance company
liquidation proceedings, see United States v. Bank of N.Y. & Trust Co. , 296 U.S.
463, 477-79 (1936), that is not the situation here. The liquidation of PHICO by
the State of Pennsylvania is in rem . See id. at 475. This civil rights and medical
malpractice case is in personam . A decision in rem does not ordinarily bar a
subsequent proceeding in personam . See Princess Lida v. Thompson , 305 U.S.
456, 466-67 (1939); Grimes v. Crown Life Ins. Co. , 857 F.2d 699, 701 n.2
(10th Cir. 1988).
Full faith and credit requires “that a federal court must give to a state-court
judgment the same preclusive effect as would be given that judgment under
the law of the State in which the judgment was rendered.” Migra v. Warren City
Sch. Dist. Bd. of Educ. , 465 U.S. 75, 81 (1984). But under Pennsylvania law,
res judicata requires identity of the causes of action, which does not exist here.
In re Iulo , 766 A.2d 335, 337 (Pa. 2001); cf. Balent v. City of Wilkes-Barre ,
669 A.2d 309, 315 (Pa. 1995) (holding that a distinction between an in rem and
an in personam proceeding that is merely technical does not bar application of
-3-
res judicata ). Therefore, full faith and credit does not require us to abate this
appeal in accordance with the state court’s order.
Pennsylvania law provides for a ninety-day stay of “[a]ll proceedings in
which the insolvent insurer is party or is obligated to defend a party.” Pa. Stat.
Ann. tit. 40, § 991.1819(a). PHICO was declared insolvent on February 1, so the
ninety days have now passed. The state court’s order somewhat ambiguously
ordered a stay “to the extent provided by applicable law.” See Aplees’ Mot. for
Stay, Attach. A at 10 ¶ 24. If the court meant the ninety-day statutory stay, then
the state court’s stay has already expired. In any event, defendants have not
argued that this court is required to defer to the state statute under the
McCarran-Ferguson Act, 15 U.S.C. § 1012(b), and we therefore need not consider
that possibility. In sum, a stay is neither jurisdictionally required nor prudentially
advisable inasmuch as PHICO is not a party to this case, but merely under a duty
to defend and, in light of the disposition on the merits, there are few, if any, new
fees to be generated.
MERITS
The magistrate judge denied plaintiff’s motion to file a second amended
and supplemental complaint on the basis that it was not filed in good faith and
-4-
would be unduly prejudicial to defendants. Defendants 1
later moved for summary
judgment. The magistrate judge thoroughly reviewed the evidence detailing the
history of plaintiff’s medical treatment. The magistrate judge concluded that
plaintiff failed to show that defendants consciously disregarded a substantial risk
to his health or denied him physician-prescribed medication or treatment; that
defendants’ conduct deviated from a medically-established standard of care or
was obviously deficient; that he was ever in acute distress from any of his medical
impairments; or that defendants’ actions were the proximate cause of any damages
he claimed. The magistrate judge further determined that plaintiff failed to show
that defendants falsified his medical records or retaliated against him because he
refused to be admitted to the prison infirmary for a diagnostic test. The
magistrate judge concluded that there were no genuine issues of material fact to
be tried, and that defendants were entitled to summary judgment. In light of
plaintiff’s objections to the magistrate judge’s recommendation, the district court
thoroughly reviewed the report de novo and adopted it. The court also affirmed
the decision of the magistrate judge not to allow plaintiff to file a second
amended and supplemental complaint. Accordingly, the court entered judgment
in favor of defendants.
1
Defendant Jeff Deiss was dismissed by stipulation of the parties.
-5-
Plaintiff argues on appeal, first, that the district court erred in dismissing
his Eighth Amendment claims of deliberate indifference because his evidence
demonstrated a pervasive denial of prescribed medication, a denial of urgently
needed medical attention, and prolonged physical pain and suffering and possible
permanent physical injury. Next, plaintiff asserts that the district court erred in
rejecting as completely conclusory his claims of falsified medical records even
though defendants did not deny the claims or present any evidence to the contrary.
Finally, plaintiff argues that the district court abused its discretion by allowing
defendants to submit additional affidavits after moving for summary judgment,
but limiting his claims and evidence to the supplemental complaint.
We review the grant of summary judgment de novo , using the same
standard as that applied by the district court. Whitesel v. Sengenberger , 222 F.3d
861, 867 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(c). We review the district court’s decision denying plaintiff leave to amend
his complaint for abuse of discretion. See Lambertsen v. Utah Dep’t of Corr. ,
79 F.3d 1024, 1029 (10th Cir. 1996).
-6-
We have carefully reviewed the parties’ materials in light of the record on
appeal. We are not persuaded by plaintiff’s claims of error, and affirm for
substantially the reasons stated in the magistrate judge’s thorough and
well-reasoned report and recommendation, as adopted by the district court.
The motion to abate the appeal is denied. The judgment of the district
court is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
-7-