Riper v. Wexford Health Sources, Inc. , 67 F. App'x 501 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 19 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
COURTNEY J. VAN RIPER,
Plaintiff-Appellant,
v. No. 01-8083
(D.C. No. 99-CV-91-D)
WEXFORD HEALTH SOURCES, (D. Wyo.)
INC., a Pennsylvania corporation;
JUDY UPHOFF, individually;
VANCE EVERETT, individually;
HERBERT COTTON, individually,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , PORFILIO , and O’BRIEN , Circuit Judges.
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.
*
This order and judgment is not binding precedent, except under the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.
Pro se appellant Courtney Van Riper challenges the district court’s decision
entering summary judgment for defendants in his civil rights action. We reverse
and remand.
Mr. Van Riper is an inmate at Wyoming State Penitentiary (WSP). He filed
this civil rights action on May 6, 1999, naming as defendants Wexford Health
Sources, Inc., which provided contract medical services for WSP; Herbert Cotton,
Wexford’s medical director; 1 Judith Uphoff, Director of the Wyoming Department
of Corrections (DOC); and Vance Everett, WSP’s warden. 2 Mr. Van Riper alleges
that both the Wexford and the DOC defendants violated his Eighth Amendment
rights by denying him necessary medical care, and that the DOC defendants
further violated his Eighth Amendment rights by placing him in unsafe conditions
such that he was assaulted by another inmate. 3
1
For the sake of simplicity, Wexford and Dr. Cotton will be referred to as
the Wexford defendants. Wexford ceased to provide services to WSP on June 15,
1999. R. Vol. 8, Doc. 141 (Sept. 28, 2001 Order Adopting Report and
Recommendations) at 7-8.
2
Ms. Uphoff and Mr. Everett will be referred to as the DOC defendants.
3
Mr. Van Riper originally also alleged that the DOC defendants violated his
due process rights, retaliated against him for filing grievances, and denied him
access to the courts. He voluntarily dismissed the claims of retaliation and denial
of access to the courts, and has declined to address his due process claim in his
appellate briefing, thus waiving it for purposes of appeal. See Grant v.
Pharmacia & Upjohn Co., 314 F.3d 488, 494 (10th Cir. 2002) (deeming waived
claim not briefed on appeal).
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Both the Wexford and DOC defendants moved for summary judgment but,
as explained below, failed to properly establish a record. Nevertheless, in two
separate reports and recommendations, the magistrate judge recommended that
summary judgment be entered for defendants on all claims. The district court
accepted the magistrate judge’s recommendations.
Mr. Van Riper now appeals, arguing that the district court erred in failing
to (1) conclude that the evidence supported a claim of deliberate indifference to
serious medical needs; (2) consider evidence that defendants altered medical
records; (3) conclude that the evidence supported a claim of unconstitutionally
unsafe conditions; (4) give due weight to a Department of Justice (DOJ) report
citing unconstitutional conditions at WSP; and (5) compel production of WSP’s
violence logs.
We review a grant of summary judgment de novo, affirming where “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 judgment as a matter of law.”
Fed. R. Civ. P. 56(c); Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177,
1180 (10th Cir. 2002). We view the evidence and the inferences drawn therefrom
in the light most favorable to the party opposing summary judgment. Hysten,
296 F.3d at 1180.
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In this case, defendants provided exhibits with their motion for summary
judgment but failed to properly certify those exhibits in accordance with
Rule 56(e). That failure leaves us as it left the district court. See R. Vol. 8,
Doc. 141 (Sept. 28, 2001 Order Adopting Report and Recommendations) at 10.
The allegations in Mr. Van Riper’s verified complaint 4 and the exhibits attached
to his opposition to defendant’s motion for summary judgment provide the
basis of decision. In the district court defendants conceded the unfavorable
state of the record but maintained they were entitled to summary judgment on
Mr. Van Riper’s version of the facts. That argument continues here. It is a
difficult row to hoe.
Medical Treatment
Prior to arriving at WSP, Mr. Van Riper was diagnosed with
gastrointestinal reflux disease (GERD), and chronic obstructive pulmonary
disease (COPD), as well as other conditions. He had been prescribed medication
to treat these conditions. Mr. Van Riper did not receive his prescribed medication
on numerous occasions, sometimes for weeks at a time. Defendants can offer no
explanation for this failing as they have presented no affidavits from either
4
A verified complaint stating facts that would be admissible at trial and that
are based on plaintiff’s personal knowledge has the same force and effect as an
affidavit for purposes of responding to a motion for summary judgment. See
Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988).
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medical or DOC personnel, or other evidence that would explain why these delays
in providing medication took place.
The Eighth Amendment prohibits the imposition of cruel and unusual
punishment. Prison officials violate the Eighth Amendment if they display
deliberate indifference in the face of an inmate’s serious medical needs. Riddle v.
Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). To establish this type of
Eighth Amendment claim, an inmate must show that (1) his medical needs were
serious, and (2) prison officials were deliberately indifferent to those needs. Id.
at 1203. In addition, in situations where, as here, treatment was delayed rather
than denied altogether, our case law requires that the inmate suffer “substantial
harm” as a result of the delay. Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.
2001).
The defendants appear to argue that they are entitled to summary judgment
because Mr. Van Riper’s medical needs were not serious. A medical need is
serious if it has been diagnosed by a physician as requiring treatment or is so
obvious that a layperson could recognize the need for a doctor’s attention.
Riddle, 83 F.3d at 1202. Here, there is no dispute that Mr. Van Riper was
diagnosed with GERD and COPD, among other conditions, and was prescribed
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medication to treat these conditions. 5 Therefore, the summary judgment evidence
meets the first element of this test.
Regarding the substantial harm requirement, “[w]e have held that the
substantial harm requirement may be satisfied by lifelong handicap, permanent
loss, or considerable pain.” Garrett, 254 F.3d at 950. Mr. Van Riper’s
allegations that he suffered through painful episodes of untreated bronchitis and
respiratory difficulty, as well as extensive periods of untreated, painful GERD
episodes are sufficient to create a fact issue on substantial harm. See Sealock v.
Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (concluding evidence of several
hours of suffering from severe chest pain following heart attack was sufficient to
defeat summary judgment on Eighth Amendment claim). 6
5
GERD is characterized by regurgitation of gastric contents into the
esophagus. The Merck Manual 232 (17th Ed. 1999). GERD can produce painful
esophageal ulcers that heal slowly and tend to recur. Id. GERD may also lead to
esophagitis, which can cause massive hemorrhages. Id. COPD is “characterized
by chronic bronchitis or emphysema and airflow obstruction that is generally
progressive.” Id. at 568. COPD may produce occasional acute chest illness, and
can lead to acute respiratory failure and death. Id. at 573-76.
6
Mr. Van Riper faults the district court for “dismissing the claims” that
defendants tampered with his medical records. Opening Br. at 20. While
falsification of medical records does not constitute a separate claim, it may
support Mr. Van Riper’s Eighth Amendment claim if determined to be relevant by
the district court on remand. See Green v. Branson , 108 F.3d 1296, 1303-04
(10th Cir. 1997) (showing of deliberate refusal to provide medical attention
coupled with falsification of medical records may give rise to an Eighth
Amendment violation).
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Deliberate indifference to serious medical needs is the unnecessary and
wanton infliction of pain. Riddle, 83 F.3d at 1203. An inadvertent failure to
provide adequate medical care does not rise to the level of an unnecessary and
wanton infliction of pain. Id. Similarly, conduct that at most establishes medical
malpractice does not meet the standard for an Eighth Amendment violation. Id.Here, the summary judgment evidence shows that both the Wexford and
the DOC defendants were made aware of the substantial delays in providing
Mr. Van Riper’s medication through his numerous grievances. Defendants offer
no explanation or justification, medical or otherwise, for the repeated delays.
Defendants, therefore, are not entitled to summary judgment on the issue of
deliberate indifference on this record. See Ramos v. Lamm, 639 F.2d 559, 575
(10th Cir. 1980) (“Deliberate indifference to serious medical needs is shown
when prison officials have prevented an inmate from receiving recommended
treatment . . . .”); Boretti v. Wiscomb, 930 F.2d 1150, 1155-56 (6th Cir. 1991)
(holding that alleged five-day delay in providing prescribed treatment–changing
dressing of wound and providing pain medication–created a triable issue of fact
regarding deliberate indifference); Ancata v. Prison Health Servs., Inc., 769 F.2d
700, 704 (11th Cir. 1985) (“The knowledge of the need for medical care and the
intentional refusal to provide that care has consistently been held to surpass
negligence and constitute deliberate indifference.”); Archer v. Dutcher, 733 F.2d
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14, 16 (2d Cir. 1984) (holding that if necessary medical treatment is denied for
nonmedical reasons, a case of deliberate indifference has been made out); cf. Hunt
v. Uphoff , 199 F.3d 1220, 1223-24 (10th Cir. 1999) (holding that allegations that
officials failed to provide insulin prescribed by prison doctor was sufficient to
state claim for deliberate indifference).
Unsafe Conditions
To establish that prison officials violated the Eighth Amendment by failing
to prevent harm to an inmate, “the inmate must show that (1) he is incarcerated
under conditions posing a substantial risk of serious harm, and (2) prison officials
acted” with deliberate indifference in the face of that risk. Grimsley v. MacKay,
93 F.3d 676, 680-81 (10th Cir. 1996). In other words, prison officials knew of
the risk but disregarded it. See Lopez v. LeMaster, 172 F.3d 756, 760-61
(10th Cir. 1999).
Here, Mr. Van Riper presents unchallenged allegations that (1) the assault
against him arose at least in part out of conditions of understaffing, (2) there had
been twenty-nine prior assaults at the facility also due in part to understaffing,
and (3) defendants Uphoff and Everett were aware of understaffing problem
because they had received a DOJ report highlighting this issue. See R. Vol. 7,
Doc. 118 (May 24, 2000 Report and Recommendation) at 18; see also R. Vol. 6,
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Doc. 104 at O-12 (DOJ report concluding that “[l]ack of adequate supervision by
staff [at WSP] greatly increases the likelihood of inmate-on-inmate violence”).
When prison officials create policies that lead to dangerous levels of
understaffing and, consequently, inmate-on-inmate violence, this is sufficient to
establish personal participation in an Eighth Amendment violation. See Lopez,
172 F.3d at 761 (holding that unsafe conditions claim survived summary judgment
where reports to prison officials revealed deficiencies in staff and back up,
training, and supervision of inmates). Again, summary judgment for defendants
is not warranted on this record.
Production of Violence Logs
In connection with his claim of unsafe conditions, Mr. Van Riper asserts
that it was error for the district court to deny his motion to compel the DOC
defendants to produce all of WSP’s violence logs. We review the denial of a
motion to compel for an abuse of discretion. See Munoz v. St. Mary-Corwin
Hosp., 221 F.3d 1160, 1169 (10th Cir. 2000). Here, the district court reasoned
that the violence logs should remain presumptively privileged pursuant to
Wyo. Stat. Ann. § 16-4-203(b)(i) because Mr. Van Riper had failed to argue the
relevance of the records. R. Vol. 8, Doc. 140 at 2-3. However, Mr. Van Riper
did argue in his motion to compel that this evidence was relevant to prove that the
DOC defendants were aware of the risk of inmate-on-inmate assault. R. Vol. 7,
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Doc. 114 at 3. Therefore, we conclude that the district court abused its discretion
in denying the motion on this ground.
Qualified Immunity
The Wexford defendants additionally argue that summary judgment in their
favor may be affirmed on the basis of qualified immunity. The district court
declined to address whether the Wexford defendants could invoke qualified
immunity, instead concluding that Mr. Van Riper had shown no rights violation at
all. Although we reverse the district court’s conclusion that Mr. Van Riper failed
to raise a triable issue as to whether his rights were violated, we express no
opinion on whether the Wexford defendants are entitled to qualified immunity.
The issue is not foreclosed.
For the reasons stated above, we REVERSE and REMAND this matter for
further proceedings consistent with this decision. The motion to supplement the
record is GRANTED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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