Lindwurm v. Wexford Health Sources, Inc. , 84 F. App'x 46 ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    DEC 18 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    RICHARD L. LINDWURM,
    Plaintiff-Appellant,
    v.                                                  No. 02-8101
    (D.C. No. 00-CV-114-J)
    WEXFORD HEALTH SOURCES,                              (D. Wyo.)
    INC., a Pennsylvania corporation;
    CORRECTIONAL MEDICAL
    SERVICES, a Missouri corporation;
    JUDY UPHOFF, individually; VANCE
    EVERETT, individually; JIM DAVIS,
    individually; JOHN COYLE, MD,
    a Wexford/CMS physician at
    Wyoming State Penitentiary,
    individually,
    Defendants-Appellees.
    ORDER AND JUDGMENT           *
    Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.
    *
    The case is unanimously ordered submitted without oral argument pursuant to
    Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
    binding precedent, except under the doctrines of law of the case, res judicata, and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.
    Richard Lindwurm appeals     1
    the district court’s decision to grant summary
    judgment in favor of the defendants on his 
    42 U.S.C. § 1983
     claim alleging that
    the medical care Lindwurm received from defendants while incarcerated in the
    Wyoming Department of Corrections (DOC) violated the Eighth Amendment.                2
    We review the district court’s summary judgment decision de novo, viewing the
    record in the light most favorable to Lindwurm,        see , e.g. , Pittsburgh County Rural
    Water Dist. No. 7 v. City of McAlester     , 
    346 F.3d 1260
    , 1278 (10th Cir. 2003),
    and liberally construing Lindwurm’s pro se         pleadings, see Haines v. Kerner , 
    404 U.S. 519
    , 520-21 (1972). Summary judgment is appropriate only if “there is no
    genuine issue as to any material fact and . . . the moving part[ies are] entitled to a
    judgment as a matter of law.” Fed. R. Civ. P. 56(c).
    To support his Eighth Amendment claim, Lindwurm asserts that the
    defendants failed to provide him with prescribed pain and blood pressure
    medications and falsified his medical records to make it appear that he received
    1
    As preliminary matters, we DENY defendants’ motion seeking to dismiss this
    appeal under Fed. R. App. P. 31(c) because Lindwurm filed his brief late,   see ,
    e.g. , Bartell v. Aurora Pub. Sch. , 
    263 F.3d 1143
    , 1146 (10th Cir. 2001). We also
    consider Lindwurm’s supplemental authority, despite defendants’ objection.
    2
    Before the district court, Lindwurm also unsuccessfully asserted additional 
    42 U.S.C. § 1983
     and state-law tort claims. In this appeal, however, he does not
    challenge the district court’s decision granting defendants summary judgment on
    those claims.
    -2-
    these medications. The district court granted summary judgment in favor of the
    defendants. For the following reasons, we affirm.
    Prison officials’ “deliberate indifference to [prisoners’] serious medical
    needs” violates the Eighth Amendment and states a § 1983 cause of action.
    Estelle v. Gamble , 
    429 U.S. 97
    , 104-05 (1976). Such a claim “involves both an
    objective and a subjective component.”       Olsen v. Layton Hills Mall , 
    312 F.3d 1304
    , 1315 (10th Cir. 2002);    see also , e.g. , Farmer v. Brennan , 
    511 U.S. 825
    , 834
    (1994). A prisoner meets the objective component “if the deprivation is
    sufficiently serious--that is, 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.”    Olsen , 
    312 F.3d at 1315
    (quotation omitted). Here, because the district court’s conclusion that Lindwurm
    suffers serious medical problems, including hypertension and degenerative joint
    disease in his back and neck, is not in dispute, Lindwurm meets the objective
    component.
    However, to establish the subjective component of his Eighth Amendment
    claim, Lindwurm must also show that defendants acted with “deliberate
    indifference”--that is, that they knew of and disregarded “an excessive risk to
    [Lindwurm’s] health or safety.”     Farmer , 
    511 U.S. at 835, 837
    ; see also , e.g. ,
    Olsen , 
    312 F.3d at 1315
    . A review of the record reveals that, on occasion,
    -3-
    Lindwurm did not receive the medication doctors had prescribed for these
    conditions. Nonetheless, we agree with the district court that Lindwurm has not
    proffered sufficient evidence to create a triable fact as to whether defendants
    acted with deliberate indifference. The occasions during which Lindwurm did not
    receive all the medication doctors prescribed were isolated and brief. Moreover,
    Lindwurm has failed to establish that such lapses in medication posed “an
    excessive risk” to his health, let alone that defendants knew of this risk and
    disregarded it.   See , e.g. , McBride v. Deer , 
    240 F.3d 1287
    , 1289 (10th Cir. 2001)
    (affirming summary judgment for prison officials where plaintiff failed to
    demonstrate deliberate indifference).
    Furthermore, although a delay in providing medical treatment may support
    an Eighth Amendment claim, it will do so only if “the delay resulted in substantial
    harm.” Garrett v. Stratman , 
    254 F.3d 946
    , 950 (10th Cir. 2001) (quotation
    omitted). Lindwurm has failed to proffer any evidence suggesting that any brief
    and isolated delays in receiving his medications substantially harmed him.
    Finally, Lindwurm asserts defendants falsified his medical records to make
    it appear that he received prescribed medications that he did not in fact receive.
    “[A] showing of deliberate refusal to provide medical attention, . . . coupled with
    falsification of medical records may give rise to an Eighth Amendment violation .
    . . cognizable under 
    42 U.S.C. § 1983
    .”    Green v. Branson , 
    108 F.3d 1296
    , 1304
    -4-
    (10th Cir. 1997). While we will not sanction falsification of medical records,
    Lindwurm has not proffered sufficient evidence to create a triable fact as to
    whether defendants falsified his medical records. Moreover, Lindwurm has failed
    to show any “deliberate refusal to provide medical attention.”
    Summary judgment for defendants, therefore, was appropriate. The
    judgment of the district court is AFFIRMED. The mandate shall issue forthwith.
    Entered for the Court
    Carlos F. Lucero
    Circuit Judge
    -5-