Vreeland v. Fisher , 682 F. App'x 642 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 16, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DELMART E.J.M. VREELAND, II,
Plaintiff - Appellant,
v. No. 16-1131
(D.C. No. 1:13-CV-02422-PAB-KMT)
THOMAS C. FISHER, M.D.; KAREN A. (D. Colo.)
JOHNSON; DEA ARAGON; JOAN M.
SHOEMAKER; HEART OF THE
ROCKIES REGIONAL MEDICAL
CENTER; THE DOUGLAS COUNTY
SHERIFF, Mr. Weaver; KARI BARONI;
MICHAEL FRENCH; RICK RAEMISCH,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Delmart E.J.M. Vreeland, II, appeals from the district court’s final judgment in
his pro se action under 42 U.S.C. § 1983 and state law. Vreeland’s claims relate to
his medical care while incarcerated in the Douglas County Jail and a Colorado
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Department of Corrections (“CDOC”) prison facility. The district court dismissed
most of Vreeland’s claims and then granted summary judgment against him on the
remaining claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Vreeland filed his complaint on September 5, 2013, alleging that he was
denied medical treatment while incarcerated at the Douglas County Jail from October
2004 to October 2008. He claimed that the defendants there (“Douglas Defendants”)
drafted and circulated a letter (“Letter”) falsely stating that he had a history of
malingering, and that this Letter caused him to be denied medical treatment. In
October 2008, Vreeland was transferred to a CDOC prison. He claimed that he
learned in March 2010 that a doctor there, Dr. Fisher, had received a copy of the
Letter and also denied him medical treatment because of it.
On February 27, 2012, Vreeland became ill. The next day he had his appendix
removed by Dr. Johnson at the Heart of the Rockies Regional Medical Center
(“HRRMC”). According to Vreeland, once he was released back to the CDOC, no
medical staff there would see him. Vreeland alleged that once Dr. Fisher finally did
see him that Fisher told him that any surgery complications should be treated by Dr.
Johnson and HRRMC, not by the CDOC. The next year, a different doctor ordered
blood work that indicated Vreeland had an infection. According to Vreeland, he had
suffered from the infection since the surgery. Vreeland then sued, bringing Eighth
Amendment and state-law medical malpractice claims against Dr. Fisher, and Eighth
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Amendment claims against the Douglas Defendants, Dr. Johnson, and HRRMC.1
II. Discussion
On appeal, Vreeland argues that the district court erred in dismissing all of his
claims against the Douglas Defendants, Dr. Johnson, and HRRMC, and some of his
claims against Dr. Fisher. He also contends the district court erred in denying certain
non-dispositive motions, in denying his motion to amend, and in granting summary
judgment against him on the remaining Eighth Amendment claims. We construe
Vreeland’s complaint liberally given his pro se status.
We review de novo a district court’s dismissal of claims under Fed. R. Civ. P.
12(b)(6) and its grant of summary judgment under Fed. R. Civ. P. 56(a). Alexander
v. Oklahoma, 382 F.3d 1206, 1213, 1215 (10th Cir. 2004). We also review de novo a
court’s denial of leave to amend on the basis that amendment would be futile. Cohen
v. Longshore, 621 F.3d 1311, 1314-15 (10th Cir. 2010). Finally, we review for an
abuse of discretion most of Vreeland’s other contentions challenging the court’s
denial of his non-dispositive motions. See Gutierrez v. Cobos, 841 F.3d 895, 908
(10th Cir. 2016) (Rule 56(d) motion); Creative Consumer Concepts, Inc. v. Kreisler,
563 F.3d 1070, 1080 (10th Cir. 2009) (stay motion); Duffield v. Jackson, 545 F.3d
1234, 1240 (10th Cir. 2008) (motion for extension of time); Bolden v. City of Topeka,
441 F.3d 1129, 1149 (10th Cir. 2006) (motion to extend discovery).
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Vreeland also brought claims against other CDOC employees, but he does
not challenge the dismissal of these claims. Nor does he attempt to show error in the
district court’s disposition of his conspiracy claims.
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A. Failure to Object to Magistrate Judge’s Report and
Recommendation
We apply a firm waiver rule when a party fails to timely and specifically
object to the findings and recommendations of a magistrate judge. Casanova v.
Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010). This rule applies both to factual and
legal questions. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th
Cir. 1996). Here, the magistrate judge recommended that some of Vreeland’s claims
should be dismissed. Vreeland did not object to many of these recommendations,
and to those he did, his objections are inconsistent with the arguments he now raises
on appeal. Although there are two exceptions to the firm-waiver rule—when a
litigant is not informed of it and when the interests of justice require review—neither
applies here. See Duffield, 545 F.3d at 1237. Accordingly, Vreeland has waived the
following arguments:
First, that his claim against the Douglas Defendants should not be time-barred
because he did not discover some of their conduct and resulting injury until
December 2011. See Aplt. Opening Br. at 20. Vreeland did not raise this issue in his
objection to the magistrate judge’s Recommendation regarding the Douglas
Defendants’ motion to dismiss. See R., Vol. 2 at 246-48.
Second, that certain claims against Dr. Fisher concerning Vreeland’s
epididymal cyst, asthma, and chronic pain should not be time-barred because they
occurred within the limitations period. When responding to the magistrate judge’s
Recommendation, Vreeland did not point to any allegations in his complaint
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regarding Dr. Fisher’s denial of medical care for these conditions after September 5,
2011. See R., Vol. 2 at 223-27, 256-59, 299-301.
Third, that amendment of his complaint to add a state-law malpractice claim
against Dr. Johnson would not be futile. See R., Vol. 7 at 314-15. Although
Vreeland complained about the timing of the defendants’ responses to his motion, his
inability to file a reply, and the magistrate judge’s “accept[ance of] the responses as
true,” id., vol. 9 at 19, these objections were not specific enough to focus the district
court’s attention on his argument regarding the denial of his motion to amend. See
One Parcel of Real Prop., 73 F.3d at 1060.
Fourth, that HRRMC should be subject to respondeat superior liability under
§ 1983. See Aplt. Opening Br. at 23. Vreeland failed to raise this objection to the
magistrate judge’s Recommendation. See R., Vol. 2 at 219.
And fifth, that an independent expert should be appointed to assist him.
Vreeland argued that his inability to be examined by a private doctor impeded his
ability to retain an expert witness, but the magistrate judge expressly rejected that
contention and Vreeland did not object. See R., Vol. 3 at 282.
B. Dismissal of Claims as Time-barred
The district court dismissed some of Vreeland’s claims as time-barred.
Vreeland does not dispute that his § 1983 claims are subject to Colorado’s two-year
limitations period. See Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994).
“Section 1983 claims accrue when the plaintiff knows or has reason to know of the
injury that is the basis of the action.” Id. A court can dismiss a claim as time-barred
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if that determination “is apparent on the face of the complaint.” Dummar v. Lummis,
543 F.3d 614, 619 (10th Cir. 2008).
1. Time-Barred Claims Against the Douglas Defendants
The district court held that all of Vreeland’s claims against the Douglas
Defendants were time-barred. It determined that Vreeland knew by October 2008
both of the existence of the Letter and that he was suffering from untreated physical
injuries. Accordingly, Vreeland was required to bring his claims no later than
October 2010. Yet Vreeland did not file his complaint until September 2013.
As he did before the district court, Vreeland invokes the so-called “continuing
violation” doctrine, contending that his claims against the Douglas Defendants were
not time-barred because the Letter continued to cause him injury during the two-year
period before he filed suit. But as the district court correctly noted, even if the
doctrine applied to § 1983 claims, the doctrine only is “triggered by continual
unlawful acts, not continual ill effects from the original violation.” Mata v.
Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (internal quotation marks omitted).
2. Time-Barred Claims Against Dr. Fisher
The district court also dismissed some of Vreeland’s claims against Dr. Fisher
as time-barred, holding once again that the continuing violation doctrine, even if
applicable, did not save Vreeland’s claims against Dr. Fisher that were based on
injuries that occurred more than two years before he filed suit.
Vreeland does not challenge this holding. Instead, he appears to argue that the
court failed to recognize that each denial of medical care started a new limitations
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period as to the resulting injury. This contention misconstrues the district court’s
ruling, which held that Vreeland’s claims survived to the extent they related to events
that took place within two years of the date he filed his complaint. See R., Vol. 2 at
299. As for Vreeland’s contentions regarding that holding and its relation to medical
care for his epididymal cyst, asthma, and chronic pain, as we have noted above,
Vreeland failed to properly object to the magistrate judge’s Recommendation.
C. Dismissal of Claim Against Dr. Johnson
The district court dismissed for failure to state a claim Vreeland’s Eighth
Amendment claim of deliberate indifference against Dr. Johnson because Vreeland
pled no facts that suggested that Dr. Johnson could require the CDOC to refer
Vreeland back to HRRMC. On appeal, Vreeland does not address this holding,
instead arguing that Dr. Johnson was a state actor. The dismissal must be affirmed.
D. Rulings on Non-Dispositive Motions
The only claims that survived the district court’s dismissal order were
Vreeland’s Eighth Amendment claims against Dr. Fisher for failure to adequately
treat his complications following surgery. Vreeland argues that the court erred in
denying several of his subsequent non-dispositive motions.
1. Denial of Motion to Appoint Independent Expert
Vreeland maintains that he asked the district court to appoint an independent
expert because the CDOC was impeding his ability to retain a private doctor to
examine him and act as his expert witness. The district court denied Vreeland’s
motion, in part, because he did not identify a doctor willing to act as an expert and he
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did not demonstrate why the court should seek an independent expert. Vreeland does
not argue, nor can we conclude, that the district court abused its discretion in denying
his motion on these grounds. See Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir.
2016).
2. Denial of Motion to Compel
Vreeland next contends that the district court erred in denying his motion to
compel, in its rulings on his request for additional time to depose Dr. Fisher and Dr.
Fisher’s expert witness and regarding the expert witness’s failure to fully comply
with a subpoena, and by failing to hold a hearing on his motion to compel. We have
reviewed the record and find no abuse of discretion, let alone prejudice to Vreeland.
3. Denial of Motions to Extend Time to Respond to Dr. Fisher’s
Summary Judgment Motion, for Relief Pursuant to
Fed. R. Civ. P. 56(d), to Reopen Discovery, and to Stay
Proceedings
Dr. Fisher filed his summary judgment motion on August 5, 2015, after which
the district court granted Vreeland two extensions of time to file a response. See R.,
Vol. 6 at 1367 n.3. In denying his motion to compel on January 29, 2016, the
magistrate judge ordered Vreeland to respond to Dr. Fisher’s summary judgment
motion no later than February 16, 2016. Vreeland then moved for a 13-day
extension, citing the press of other litigation, his need to file objections to the
magistrate judge’s order denying his motion to compel, and his limited access to the
prison law library. The district court denied the motion.
Instead of submitting a substantive response to Dr. Fisher’s summary judgment
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motion, Vreeland filed several new motions seeking relief under Rule 56(d), to
reopen discovery based on new evidence, and to stay the proceedings. In his
Rule 56(d) motion, Vreeland argued that he needed additional discovery to respond
to Dr. Fisher’s summary judgment motion. In support of his request for additional
discovery based on new evidence, Vreeland referenced a declaration he filed for in
camera review, but he did not explain what the new evidence was.
The district court denied Vreeland’s Rule 56(d) motion, holding that it was
procedurally improper and substantively deficient because it failed to set forth
specific reasons why Vreeland could not present the facts necessary to oppose Dr.
Fisher’s summary judgment motion. The court also denied Vreeland’s motion to
reopen discovery and his motion to stay the proceedings.
Rather than addressing the district court’s bases for denying a particular
motion, Vreeland argues on appeal that the court’s refusal to grant his various
motions and requests “doomed his case.” We have either already addressed these
contentions or are not persuaded that the district court abused its discretion.
E. Grant of Summary Judgment on Claims Against Dr. Fisher Related
to Post-Operative Care
Vreeland contends that the district court erred in granting Dr. Fisher summary
judgment on his Eighth Amendment claims related to his medical treatment after his
surgery. Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
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Vreeland argues that the undisputed facts came from Dr. Fisher’s summary
judgment motion.2 But Vreeland has failed to point to any specific deficiency in the
recitation of facts. He also argues that he was unable to show a genuine issue of
material fact due to Dr. Fisher’s conduct and the district court’s denial of an
extension of time to respond, contentions we have rejected.
On the merits, the district court held that Vreeland failed to show a genuine
dispute of material fact with respect to his claims that Dr. Fisher was deliberately
indifferent to his medical needs. We examine each claim in turn.
1. Post-Surgical Infection
The district court held there was no evidence that Vreeland had an infection
for 17 months following his surgery in February 2012. The court reviewed the
evidence, including lab tests indicating that Vreeland had normal white blood cell
counts in March 2012, shortly after the surgery, and again in July 2013, as well as
expert testimony that those test results indicated lack of an infection. Therefore,
based on the undisputed evidence, the court held that Vreeland failed to satisfy the
objective component of the deliberate-indifference test by demonstrating he had a
2
Vreeland contends that the court should have adopted his factual summary,
but he filed only a two-page response to the summary judgment motion, which did
not set forth any response to Fisher’s factual summary. As we have observed, “a pro
se plaintiff requires no special legal training to recount the facts surrounding his
alleged injury,” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), so not
responding to the facts in a summary judgment motion should not be excused lightly.
See Fed. R. Civ. P. 56(c). Despite his failure to file a substantive response to
Fisher’s motion, the district court treated his sworn complaint and his proposed
amended complaint as affidavits in opposition to summary judgment. We express no
opinion on this procedure.
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medical need that was sufficiently serious. See Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000). Vreeland argues that the court erred in relying on the opinion
of Dr. Fisher’s expert when he was unable to retain his own expert, but as we have
already concluded, Vreeland has not shown error in the denial of his motion for
appointment of an independent expert.
2. Weight Loss
The district court held there was no evidence that Vreeland lost a significant
amount of weight as a result of Dr. Fisher’s failure to provide post-surgical care, and
pointed to evidence in Vreeland’s medical record that his weight barely fluctuated
between the surgery and the end of 2012. Vreeland contends that he lost at least 20
pounds, as indicated by exhibits he attached to his objections to the magistrate
judge’s Recommendation. The district court declined to consider the late-filed
evidence, see Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996), and explained
that the evidence—which indicated Vreeland’s weight three years before and three
years after the surgery—was irrelevant in any event. Vreeland fails to show error.
3. Denial of Bandages
Vreeland alleged that Dr. Fisher refused to give him bandages for his
incisions, yet he admits that he obtained a sufficient number of bandages from a
nurse thereafter. He has not shown substantial harm from Dr. Fisher’s alleged denial.
See Sealock, 218 F.3d at 1210.
4. Denial of Pain Medication
Dr. Fisher presented evidence from Vreeland’s CDOC medical records
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indicating that he saw Vreeland on March 13, 2012, two weeks after the surgery, at
which time Vreeland reported he had no severe pain, cramps, fever, or other
symptoms. The examination notes indicate that Dr. Fisher found no abdominal
tenderness or distension and stated that Vreeland was taking aspirin and ibuprofen for
pain. Looking to allegations in the proposed amended complaint, the district court
held that a factual dispute existed regarding the symptoms that Vreeland reported to
Dr. Fisher.
Even so, the district court held that Vreeland’s version of events nonetheless
failed to demonstrate a genuine dispute of material fact. The court reasoned that,
even if Vreeland was experiencing more pain than was reflected in Dr. Fisher’s notes,
Vreeland’s evidence failed to satisfy the objective component because Vreeland’s
pain was not caused by a sufficiently serious medical condition. Vreeland challenges
this holding, and we choose to affirm on an alternate basis fully supported by the
record.
It is uncontroverted that Vreeland received pain medication. As Vreeland
concedes in his opening brief, he was not denied all pain medication; instead, he
acknowledges that he was given ibuprofen for his post-surgical pain. Aplt. Opening
Br. at 48. The choice of pain medication by the medical staff in these circumstances
simply does not demonstrate subjective deliberate indifference. See Self v. Crum,
439 F.3d 1227, 1232 (10th Cir. 2006).
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AFFIRMED. Vreeland’s motion for leave to file three reply briefs is denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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