Richard v. Bokor , 379 F. App'x 719 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
May 19, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TRAVONE L. RICHARD,
Plaintiff-Appellant,
v.
No. 09-3381
(D.C. No. 5:09-CV-03139-SAC)
(FNU) BOKOR, Doctor/Physician, El
(D. Kan.)
Dorado Correctional Facility; FNU
LNU, State Official,
Defendants - Appellees.
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Travone L. Richard, a Kansas state prisoner proceeding pro se, appeals
from the district court’s dismissal of his 42 U.S.C. § 1983 complaint alleging that
Ms. Bokor, a prison health care provider, violated his constitutional rights by
providing him inadequate medical treatment. Because we agree with the district
*
After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
court’s conclusion that Mr. Richard has failed to state a claim on which relief
may be granted, we affirm.
* * *
Mr. Richard is incarcerated in the Special Management Housing Unit of the
El Dorado, Kansas state correctional facility. In February 2009, Mr. Richard
sought medical treatment for a chronic illness that causes sores in his mouth. He
was scheduled for an initial medical visit with Ms. Bokor, but that visit ended
before it began, due to Mr. Richard’s disruptive behavior. Mr. Richard’s second
visit with Ms. Bokor also ended early, again due to his disruptive behavior.
During his third visit, Ms. Bokor offered to start Mr. Richard on antibiotics, but
he refused. Then, in his fourth visit, Mr. Richard finally accepted treatment and
Ms. Bokor prescribed various medications to treat his mouth sores. Two days
later, Mr. Richard asked Ms. Bokor to increase the dosage of one of his
medications, but she declined his request. Over the next week, Ms. Bokor
scheduled two follow-up visits with Mr. Richard, but he refused to attend either
of them. Eventually, Mr. Richard says, a different health care provider increased
his dosage as requested.
Following this series of events, Mr. Richard filed administrative grievances
against Ms. Bokor and, when those proved unsuccessful, filed a complaint in
federal district court alleging that Ms. Bokor provided him inadequate medical
care in violation of his constitutional rights under the Eighth and Fourteenth
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Amendments. He also sought and was granted leave to proceed in forma
pauperis. The district court dismissed Mr. Richard’s complaint pursuant to 28
U.S.C. § 1915(e), which governs proceedings in forma pauperis and provides that
“the court shall dismiss the case at any time if the court determines that . . . the
action or appeal . . . fails to state a claim on which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B)(ii). Mr. Richard now seeks to appeal the district court’s
dismissal of his complaint.
* * *
Before addressing the merits of Mr. Richard’s appeal, we must first assure
ourselves of jurisdiction to do so. Mr. Richard filed his notice of appeal after the
thirty day deadline required by Federal Rule of Appellate Procedure 4(a)(1), a
fact that would normally deprive us of jurisdiction to entertain his appeal. See
Bowles v. Russell, 551 U.S. 205, 214 (2007). At the time he filed his notice of
appeal, however, Mr. Richard also filed a “motion to reopen case,” which the
district court construed as a motion for an extension of time to file his notice of
appeal. D. Ct. Order of Feb. 4, 2010 at 1-2.
Federal Rule of Appellate Procedure 4(a)(5) allows the district court to
extend the deadline for filing a notice of appeal if “a party so moves no later than
30 days after the time prescribed by this Rule 4(a) expires; and . . . that party
shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(i)-(ii). The
district court found that Mr. Richard had mistakenly filed his notice of appeal
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with the state district court within the initial Rule 4(a)(1) deadline and that he had
filed his “motion to reopen” within the Rule 4(a)(5) deadline. Based on this, the
district court held that Mr. Richard had met Rule 4(a)(5)’s requirements, granted
him an extension of time, and accepted his notice of appeal as timely filed.
Because the district court’s extension of time did not constitute a “clear abuse of
discretion,” Romero v. Peterson, 930 F.2d 1502, 1505 (10th Cir. 1991), we agree
that Mr. Richard’s notice of appeal was timely filed, and we thus properly possess
jurisdiction over his appeal.
* * *
To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). And to make out a
constitutional claim alleging inadequate medical treatment, a prisoner must
demonstrate that the prison staff acted with “deliberate indifference to [his]
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Martinez v.
Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).
The test for “deliberate indifference” includes two components — one
objective, the other subjective. See Callahan v. Poppell, 471 F.3d 1155, 1159
(10th Cir. 2006). The objective component requires that the defendant’s medical
needs be “sufficiently serious to implicate the Cruel and Unusual Punishment
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Clause.” Id. (internal quotation marks omitted). “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) (internal quotation marks omitted). The subjective component
requires that the official “knew [the prisoner] faced a substantial risk of harm and
disregarded that risk, by failing to take reasonable measures to abate it.”
Callahan, 471 F.3d at 1159 (quotation marks omitted).
We agree with the district court that Mr. Richard has failed to state an
actionable claim under these standards. 1 Even assuming (without deciding) that
his mouth sores presented a “sufficiently serious” medical need, Mr. Richard has
not demonstrated that Ms. Bokor disregarded any substantial risk of harm
associated with this medical need. In fact, Mr. Richard’s pleadings establish just
the opposite: Ms. Bokor prescribed medication to treat Mr. Richard’s mouth
sores and even scheduled follow-up appointments. These efforts were
occasionally thwarted by Mr. Richard’s own disruptive behavior and refusal of
1
Because Mr. Richard’s filings in the district court and this court were
prepared pro se, we afford them a “solicitous construction.” Van Deelen v.
Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). We do not, however, “supply
additional factual allegations to round out [Mr. Richard’s] complaint or construct
a legal theory on [his] behalf.” Whitney v. State of New Mexico, 113 F.3d 1170,
1175 (10th Cir. 1997).
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treatment. Yet, that hardly establishes that Ms. Bokor was indifferent to his
medical needs.
Given all this, Mr. Richard is left, in the end, only with his assertion that
Ms. Bokor should have increased the dosage for his medicine when he requested.
But this court long ago explained that “a mere difference of opinion between the
prison’s medical staff and the inmate as to the diagnosis or treatment which the
inmate receives does not support a claim of cruel and unusual punishment.”
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); see also Estelle, 429 U.S. at
106 (explaining that even “[m]edical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”). And the facts alleged in Mr.
Richard’s complaint suggest no more than this.
* * *
We affirm the district court’s dismissal of Mr. Richard’s complaint.
Because the district court granted Mr. Richard leave to proceed in forma pauperis
on appeal, we remind him of his obligation to continue making partial payments
until the entire filing fee for this appeal is paid. See 28 U.S.C. § 1915(b).
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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