Tucker v. Meyer , 165 F. App'x 590 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 31, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CHARLES TUCKER,
Plaintiff-Appellant,
v. No. 05-7057
(D.C. No. 03-CV-202-P)
BRUCE MEYER; MS. MELTON; (E.D. Okla.)
TERRY MARTIN; GREG SHEIK,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff-appellant Charles Tucker 1 is a former Oklahoma state prisoner
with a back fusion, who spent part of his incarceration time at the Bruce Johnson
Correctional Center (BJCC) participating in a boot camp program. After his
release from prison, he filed a 42 U.S.C. § 1983 action seeking damages.
Mr. Tucker alleged that defendants BJCC physician Bruce Meyer, Warden Janice
Melton, supervisor Terry Martin, and unit manager Greg Sheik violated his Eighth
Amendment rights by their deliberate indifference to his back pain and serious
medical needs and violated his due process rights by assigning him to participate
in the boot camp program. 2 The district court granted defendants’ motion for
summary judgment.
On appeal, Mr. Tucker argues that there are genuine issues of fact whether
defendants (1) confessed an Eighth Amendment violation; (2) failed to provide
appropriate medical care; and (3) required him to submit to a prison boot camp
program without medical clearance and in violation of prison guidelines
concerning age and physical condition. Also, Mr. Tucker argues that the district
court failed to sufficiently discuss the issues.
1
Although Mr. Tucker was pro se when he filed his complaint, he has been
represented by counsel throughout most proceedings, including this appeal.
2
Mr. Tucker made other allegations and sued additional defendants. None of
those allegations or defendants are relevant to this appeal.
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We review the district court’s grant of summary judgment de novo,
reviewing the record in the light most favorable to Mr. Tucker. See Norton v.
City of Marietta, 432 F.3d 1145, 1152 (10th Cir. 2005) (per curiam). The district
court appropriately granted summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show[ed] that there [was] no genuine issue as to any material fact and that
the moving party [was] entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). Applying these standards, we affirm.
Mr. Tucker first argues that there is a genuine issue of material fact
whether defendants admitted violating his Eighth Amendment rights. The state
district court granted Mr. Tucker post-conviction relief, releasing him from prison
and ordering that he serve the remainder of his suspended sentence under the
supervision of parole and probation authorities. Mr. Tucker maintains that
because he sought post-conviction relief claiming that due to his physical
limitations his due process and equal protection rights had been violated by
placement in the boot camp and because he was granted post-conviction relief it
follows that his Eighth Amendment rights were violated and defendants must have
confessed as much. After reviewing the record, we do not reach the same
conclusion. The assistant district attorney apparently confessed post-conviction
relief, but there is no indication why she did so. The state court provided no
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explanation for its decision granting post-conviction relief, and we will not
speculate that the basis for its decision is as Mr. Tucker suggests. Even if the
state court found due process and equal protections violations, that alone will not
establish a genuine issue of fact regarding an Eighth Amendment violation.
Moreover, defendants, who were not parties to the post-conviction proceedings,
deny that they violated Mr. Tucker’s Eighth Amendment rights.
Next, Mr. Tucker argues that there is a genuine issue of material fact
whether defendants violated his rights by assigning him to a boot camp program
without considering his age and physical condition and without providing proper
medical clearance. Defendants, however, did not make the assignment. Rather,
persons at the Lexington Assessment and Reception Center (LARC) made the
decision to send Mr. Tucker to BJCC and to the boot camp program after LARC
medical personnel physically assessed Mr. Tucker.
Third, Mr. Tucker argues that there is a genuine issue of fact whether he
received appropriate medical care after he started the BJCC boot camp program.
He contends that defendants were deliberately indifferent to his medical needs by
denying him pain management program medications, substituting over-the-counter
medications, delaying requested medical assistance over a weekend, taking only
an x-ray and not an MRI of his back after he complained of pain, and allowing
him to participate in the boot camp.
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“A prison official’s deliberate indifference to an inmate’s serious medical
needs is a violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). “This is
true whether the indifference is manifested by prison doctors in their response to
the prisoner’s needs or by prison guards in intentionally denying or delaying
access to medical care . . . .” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)
(footnote omitted). Deliberate indifference claims have both subjective and
objective components. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir.
2005). “The objective component is met if the deprivation is ‘sufficiently
serious.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotation
omitted)). “The subjective component is met if a prison official knows of and
disregards an excessive risk to inmate health or safety.” Id. (quotation omitted).
Contrary to Mr. Tucker’s assertion, the record shows that he was not on a
pain management program when he arrived at BJCC. While he was at LARC, he
was taken off methadone, a pain drug he had used for only three weeks. He was
treated with Lortab, Flexeril, Ibuprofen, and hot packs. Later, he was weaned off
Lortab. His back pain resolved at LARC, and he requested that he be taken off
Flexeril.
The record also shows that Dr. Meyer was not deliberately indifferent to
Mr. Tucker’s medical needs. Dr. Meyer promptly treated Mr. Tucker’s medical
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needs with over-the-counter and prescription medications. Dr. Meyer restricted
him from running, running in place, side straddle hops, windmills, sit-ups, and
double-time marching. On two occasions, Dr. Meyer relieved Mr. Tucker of all
activity for the day. The doctor ordered x-rays, which showed Mr. Tucker’s back
fusion, but indicated no presence of acute problems. Mr. Tucker’s expert witness
testified at his deposition that Dr. Meyer provided humane treatment in good
faith, and that Dr. Meyer’s failure to order an MRI was not inhumane, see
generally Estelle, 429 U.S. at 107 (deciding that whether to order additional tests
is matter for medical judgment and failure to order tests is not cruel and unusual
punishment). To the extent Mr. Tucker was dissatisfied with the type of medical
care he received, such a difference of opinion does not constitute deliberate
indifference. See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir.
1999).
Mr. Tucker makes no specific assertions against Mr. Martin or Mr. Sheik
on appeal. The record shows no genuine issues of material fact concerning their
alleged deliberate indifference to his medical needs.
Mr. Tucker’s only specific assertions against Wardon Melton are that “[i]t
never occurred to . . . the Warden . . . that the pain management program
prescribed by private physicians might be based on truth,” Aplt. Br. at 13, and
that she “acquiesce[d] and then approv[ed] of the disciplinary misconduct
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demonstrat[ing] both direct involvement and deliberate indifference,” id. at 18.
As indicated above, Mr. Tucker was not on a pain management program when he
arrived at BJCC. The fact that he received a misconduct citation for refusing to
participate in the boot camp when released by Dr. Meyer to do so does not show
deliberate indifference by Warden Melton in light of the constitutionally adequate
medical care he received.
Lastly, we reject Mr. Tucker’s argument that the district court failed to
sufficiently explain its decision, thereby precluding effective review.
Accordingly, we AFFIRM the district court’s judgment.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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