Harold v. CU Hospital , 680 F. App'x 666 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RONALD HAROLD, individually and as
the widower and next of kin for wife, the
late Olive Harold,
Plaintiff - Appellant,
v. No. 16-1314
(D.C. No. 1:15-CV-01919-LTB)
UNIVERSITY OF COLORADO (D. Colo.)
HOSPITAL; CITY AND COUNTY OF
DENVER; MAYOR MICHAEL
HANCOCK; DENVER DEPARTMENT
OF HUMAN SERVICES; DON MARES;
DENVER DEPARTMENT OF HUMAN
SERVICES, ADULT PROTECTION
UNIT; JUANITA-RIOS JOHNSTON;
QUALITY PARTNERS HEALTH CARE
SERVICES, LLC; VIVAGE QUALITY
HEALTH CARE PARTNERS;
HIGHLINE REHABILITATION & CARE
CENTER; JEFFREY A. RICHARDSON;
KIM M. RUSSELL; LISA MARIE
DIPONIO; DAVID M. BERNHART, JR.
ESQ.; REBECCA PARKER; TAMMY
MONTGOMERY; ERIN EGAN; STACY
GIBBS; DERRIC MONTANO,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
_________________________________
Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
_________________________________
Ronald Harold has waged a protracted, pro se legal battle against the people and
institutions that he holds responsible for the death of his wife, Olive Harold. In 2015,
Mrs. Harold died while a ward of the state living at the Highline Rehabilitation and Care
Community in Denver, Colorado. Mr. Harold asserts constitutional claims based on the
State’s making his wife its ward, on the State’s obtaining civil protection orders against
him, and for the State’s mistreating him and his wife while she was a ward. Under 42
U.S.C. § 1983, he sues against an array of defendants, from the City and County of
Denver to the medical professionals who attended to his wife. Despite Mr. Harold’s
detailed allegations, the district court has repeatedly concluded that they lack merit,
asking Mr. Harold several times to revise them to state actionable claims. Mr. Harold has
twice sought and been denied appointed counsel. After giving Mr. Harold these
opportunities to amend, the district court resolved the case based on Mr. Harold’s Second
Amended Complaint, dismissing all his asserted claims as legally frivolous. Because each
of the claims fails to meet some requirement of § 1983, we must agree.
BACKGROUND
A. Olive Harold
In October 2014, Olive Harold was admitted to the University of Colorado
Hospital, suffering from a urinary-tract infection. While there, she attracted the attention
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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of Denver County Adult Protection Services. In December, the Denver Probate Court
granted Adult Protection services a temporary, two-month guardianship of Mrs. Harold.
Mrs. Harold was moved to the Highline Rehabilitation and Care Center (Highline), also
in Denver. Mr. Harold apparently got into an escalating series of disputes with various
officials about his wife’s status and treatment and his visiting rights. The Denver Probate
Court held that Mrs. Harold should be a ward of the state and issued temporary and then
permanent civil protection orders against Mr. Harold. On November 12, 2015, Mrs.
Harold died at Highline.
B. Ronald Harold’s Lawsuit
On September 3, 2015, Mr. Harold sued Highline and the other defendants in
federal court, soon before his wife’s death. A magistrate judge found his Complaint
deficient and ordered Mr. Harold to try to cure several of its deficiencies. On October 23,
2015, Mr. Harold filed an Amended Complaint, as well as a Motion for Leave to Proceed
in forma pauperis (IFP) under 28 U.S.C. § 1915. The magistrate judge again ordered Mr.
Harold to amend to cure deficiencies in his Amended Complaint. Before doing so, Mr.
Harold filed an Emergency Motion to stay the protection order against him and to move
his wife to a different facility. The district court denied both motions, finding that it had
no subject-matter jurisdiction to overturn decisions of a state probate court. The
magistrate judge then denied as premature Mr. Harold’s request for counsel, which had
been pending since the first Complaint.
On January 13, 2016, after two time extensions, Mr. Harold filed his second
Amended Complaint. The magistrate judge granted Mr. Harold IFP status, and ordered
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him to amend his Amended Complaint. Mr. Harold asked for another time extension and
again asked for appointed counsel. The magistrate judge granted additional time, but
denied appointed counsel. On the last day for Mr. Harold to file a third Amended
Complaint, he instead asked for more time to file it, so he could obtain his wife’s medical
records. He also requested that the court order release of those medical records to him.
The magistrate judge, citing the early stage of the case and the hundreds of pages Mr.
Harold had already filed without stating a claim, declined to order the release of the
medical records, but granted Mr. Harold a final 30-day extension to file a third Amended
Complaint. The court also warned that “any additional unreasonable delay tactics will be
frowned upon by the court and may result in dismissal of this action.” R., vol. 1 at 218.
Despite this warning, Mr. Harold waited until the last business day before the June
3, 2016 deadline to seek yet another time extension. This time the district court refused to
grant it and noted that it could dismiss Mr. Harold’s action without prejudice for failure
to follow a court order. Instead, the district court turned to Mr. Harold’s second Amended
Complaint, concluded that all claims were legally frivolous, and dismissed them with
prejudice under 28 U.S.C. § 1915. Mr. Harold appealed.
DISCUSSION
A. Time Extension
Mr. Harold based his final request for a time extension—the only one denied—on
his alleged need to review transcripts from the Denver Probate Court. “When an act may
or must be done within a specified time, the court may, for good cause, extend the time.”
Fed. R. Civ. P. 6(b)(1). We review denials of such extensions for an abuse of discretion.
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Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 1193 (10th Cir. 1998). Mr. Harold
alleges that he needed extra time to review the transcripts of the seven Denver Probate
Court hearings (he now appears to have all seven) because they concern the State’s
making his wife a ward of the state and its obtaining civil protection orders against him.
This may well be true, but the probate-hearing transcripts could not support his claims
under § 1983. As the courts have repeatedly explained to Mr. Harold, the Rooker-
Feldman doctrine prevents lower federal courts from reviewing state-court judgments if
the federal suit depends upon the federal courts rejecting those state-court judgments.
See, e.g., Campbell v. City of Spencer, 682 F.3d 1278, 1281-84 (10th Cir. 2012). Mr.
Harold has not indicated how the Denver Probate Court transcripts could supply a valid
jurisdictional basis to overturn the local court’s decisions about Mr. Harold and his wife
in a § 1983 action. So the district court did not abuse its discretion in denying what surely
would have been a futile time extension.
B. Appointed Counsel
Mr. Harold twice requested and was denied appointed counsel. The district court
has discretion on the appointment of counsel for those who cannot afford it. 28 U.S.C. §
1915(e)(1). We review the refusal to appoint counsel for an indigent plaintiff in a civil
case for abuse of discretion. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
The plaintiff has the burden of demonstrating that his claim is sufficiently meritorious to
warrant appointed counsel. Id. “Only in those extreme cases where the lack of counsel
results in fundamental unfairness will the district court’s decision be overturned.” Id. at
839. Mr. Harold has not met his burden. His claims may be factually complex, but
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despite repeated attempts, he has not managed to state the basic elements of a § 1983
claim. The magistrate judge had discretion to consider the legal merits of Mr. Harold’s
claims in weighing the appointment of counsel and, finding none, did not abuse its
discretion in twice denying counsel.
C. § 1983 Claims
Because Mr. Harold was proceeding IFP when he filed his complaints, 28 U.S.C. §
1915(e)(2)(B)(i) mandates that the district court dismiss his claims if it determines that
they are frivolous. An IFP claim is frivolous if it is based on a meritless legal theory or
baseless factual contentions. Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997).
We generally review a § 1915 frivolousness dismissal for abuse of discretion, unless the
dismissal turns on a legal issue and then we review de novo. Fogle v. Pierson, 435 F.3d
1252, 1259 (10th Cir. 2006).1 Our review should examine whether “factual allegations
could be remedied through more specific pleading” and therefore whether a “district
court abused its discretion by dismissing the complaint with prejudice or without leave to
amend.” Denton v. Hernandez, 504 U.S. 25, 34 (1992).
1
Though, in two unpublished cases, we have also called that standard into
doubt, seeing as the Supreme Court case that created it, Denton v. Hernandez, 504
U.S. 25, 33-34 (1992), was based on an older version of the relevant statute. Lowe v.
Sockey, 36 Fed. Appx. 353, 356 (10th Cir. 2002) (unpublished); Basham v. Uphoff,
No. 98-8013, 1998 WL 847689, at *4 n.2 (Dec. 8, 1998) (unpublished). Denton found
that § 1915 gave the district court discretion over IFP frivolousness dismissals, but
the 1995 Prison Litigation Reform Act (PLRA) removed the discretionary language
from the statute. Lowe, 36 Fed. Appx. at 356. The Sixth Circuit has found that the
PLRA now compels a de novo review standard. McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997) (Partially overruled on other grounds by LaFountain v.
Harry, 716 F.3d 944, 951 (6th Cir. 2013)). We find that Mr. Harold’s claims would
be frivolous under either standard, and so do not decide the standard of review issue.
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Mr. Harold’s second Amended Complaint presented thirty-nine claims for relief
against twenty defendants.2 Even construing the allegations liberally because Mr. Harold
was pro se, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), the district court
rejected all the claims. Mr. Harold brought two types of claims: those on behalf of his
wife and those on behalf of himself. The district court dismissed the former because the §
1983 claims of a deceased Colorado victim must be brought by the personal
representative of the victim’s estate, and Mr. Harold has not shown himself qualified to
act in that capacity. See Cobello v. Pelle ex rel. Boulder Cty. Bd. of Comm’rs, No. 06-cv-
02600-MJW-MEH, 2008 WL 926522, at *3 (D. Colo. March 31, 2008) (unpublished).
The district court broke Mr. Harold’s claims made on his own behalf into seven
categories and dismissed each for a § 1983 deficiency. First, Mr. Harold’s claim against
the Denver Probate Court Judge Elizabeth Leith was barred by absolute judicial
immunity. That claim could have proceeded only if Mr. Harold showed that Judge Leith
had acted non-judicially or in the clear absence of all jurisdiction, which she did not do.
See Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Second, Eleventh Amendment immunity
barred the claims against the Denver Department of Human Services and its Adult
Protection Unit, the University of Colorado Hospital, and state officials acting in their
official capacity. Third, the claims against the city and county of Denver alleged
violations by the employees of those entities, not the required showing that those entities
had policies or customs causally linked to the alleged injury. See City of Canton, Ohio v.
2
The Amended Complaint’s caption mentions only nineteen, but its text also
includes allegations against the Denver Probate Court Judge Elizabeth Leith.
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Harris, 489 U.S. 378, 385-86 (1989). Fourth, the claims against the mayor of Denver and
the directors of the Department of Human Services and its Adult Protection unit did not
allege the required personal participation, exercise of control or direction, or failure to
supervise. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Fifth, Mr. Harold’s claims against non-state actors did not adequately allege state
action. A person who has allegedly deprived a victim of federal constitutional rights must
have been acting under color of state law to be a proper § 1983 defendant. Connecticut v.
Gabbert, 526 U.S. 286, 290 (1999). If private conduct has caused the alleged violation in
a § 1983 action, the conduct must be “fairly attributable” to the State. Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). The conduct may be by a state
official or by someone who “has acted together with or has obtained significant aid from
state officials” or may be “otherwise chargeable to the State.” Id. A plaintiff seeking to
tie private conduct to state action must make more than conclusory allegations—the
plaintiff must plead “facts tending to show agreement and concerted action” between the
private and state actors. Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (quoting
Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)). The district court
found that Mr. Harold did not do so when he named as defendants three organizations
(Quality Partners Health Care Services, LLC, Vivage Quality Health Care Partners, and
Highline Rehabilitation and Care Community) and seven people (Derric Montano, Stacy
Gibbs, Erin Egan, Lisa DiPonio, Jeffrey Richardson, Rebecca Parker, and Tammy
Montgomery). Instead, Mr. Harold made conclusory allegations that are insufficient to
support a § 1983 claim.
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Sixth, Mr. Harold’s claims against Kim Russell, the Denver County Human
Services worker assigned to his wife’s case, alleged acts that were “inextricably
intertwined” with state-court proceedings and thus were barred by the Rooker-Feldman
doctrine, see Campbell, 682 F.3d at 1282, or simply failed to allege constitutional
violations. Seventh, Mr. Harold’s claims against David Bernhart, Jr., an attorney for the
Denver Department of Human Services, also failed under the Rooker-Feldman doctrine.
In his appellate brief, Mr. Harold provides little legal argument against the district
court’s dismissals. He mostly repeats his allegations and states that they are sufficient for
the case to go forward. As best we can tell, though, he does present two specific
arguments. He argues that he needs no special paperwork to bring claims on behalf of his
wife, and that the private healthcare provider defendants acted under color of law because
they were subject to federal Medicare and Medicaid laws and associated state rules and
laws. Mr. Harold provides no legal backing for either argument, but considering his pro
se status, we will examine them.
Mr. Harold argues that he needs “no special paperwork or documents” to assert
claims on behalf of his wife. Appellant Br., Attachment at 2. He is mistaken. A federal §
1983 lawsuit is not a substitute for a state claim. Section 1983 remedies are “to the party
injured.” 42 U.S.C. § 1983. The estate of a deceased victim must be the one to bring suit.
Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1506-07 (10th Cir. 1990). No one
disputes that Ronald Harold was Olive Harold’s husband, but Mr. Harold must still show
that he is the personal representative of her estate if he seeks to bring federal § 1983
claims on her behalf.
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Next, Mr. Harold argues that government regulation and funding of the private
healthcare actors involved in his case suffice to satisfy § 1983’s color-of-law
requirement. This is not so. Neither being subject to government regulation, Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982), nor being totally dependent on government
contracts and funds, Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982), makes a
private company’s acts under the color of state law. Mr. Harold’s private healthcare
defendants do not qualify as state actors.
Mr. Harold has repeatedly failed to present claims that fulfill the requirements of a
§ 1983 action, and his arguments on appeal do not change that. After Mr. Harold’s
multiple chances to amend his Complaint, we cannot say that the district court abused its
discretion in concluding that further amendment would be futile. The district court was
right to dismiss the claims with prejudice.
D. Medical Records
Mr. Harold also appears to challenge the magistrate judge’s May 2016 order
denying him access to his wife’s medical records. We review pretrial discovery rulings
for an abuse of discretion. King v. PA Consulting Grp., Inc., 485 F.3d 577, 590 (10th Cir.
2007). At the time of the denial, Mr. Harold had yet to establish that he had any non-
frivolous claims. The magistrate judge did not abuse his discretion in finding that, given
the early status of the case and legitimate doubts about whether Mr. Harold would be able
to state any valid claim, ordering the release of medical records would have been
premature.
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E. IFP Status
Mr. Harold was initially granted leave to proceed IFP in this action. But on appeal,
after the district court found all his claims frivolous, it denied him IFP status. Further, the
district court certified that any appeal taken from its denial of Mr. Harold’s claims would
not be in good faith. See 28 U.S.C. § 1915(a)(3). Mr. Harold appealed anyway, and filed
a motion to proceed IFP. Even a party who has been certified as not appealing in good
faith can request IFP status on appeal so long as he shows both a financial inability to pay
and a reasoned, nonfrivolous argument, and follows the procedure mandated by Fed. R.
Civ. P. 24(a)(5). Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078-79 (10th
Cir. 2007).3 But we agree with the district court that Mr. Harold has not shown the
existence of a reasoned, nonfrivolous argument and so he cannot proceed IFP.
CONCLUSION
We affirm the district court’s denials of Mr. Harold’s requests for appointed
counsel, a time extension, and his wife’s medical records. And because Mr. Harold,
despite repeated opportunities, has set forth no claim that fulfills all the requirements that
§ 1983 demands, we must affirm the district court’s dismissal with prejudice of his
3
“Upon its face, § 1915(a)(3) would appear to foreclose our consideration of
[a motion to proceed IFP]; its mandatory language denies the availability of an
appeal in forma pauperis upon the district court’s certification of a lack of good faith,
and it provides no escape hatch of appellate review or reconsideration. Federal Rule
of Appellate Procedure 24(a)(5), on the other hand, purports to expressly permit our
consideration of [such] a motion . . . . The palpable conflict between these provisions
is resolved in favor of the procedures dictated by Rule 24(a)(5), by virtue of the fact
that its most recent reenactment postdates that of § 1915(a)(3).” Rolland, 497 F.3d at
1078.
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claims as legally frivolous, and deny him IFP status.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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