White v. Buser

FILED
United States Court of Appeals
Tenth Circuit

April 1, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

MARVIN JAMES WHITE,

Plaintiff - Appellant,
v. No. 09-3322
(D.C. No. 5:08-CV-03152-MLB)
JANE G. BUSER, Acting Unit (D. Kansas)
Manager, USP - Leavenworth;
WILLIAM McCOLLUM, M.D., USP -
Leavenworth; JOHN DRENAN [sic],
Administrator of Health Services, USP
- Leavenworth; DUKE TERRELL,
Warden, USP - Leavenworth,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

*
This order and judgment is not binding precedent except under the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.
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioner and appellant, Marvin James White, 1 a federal prisoner

proceeding pro se, appeals the grant of summary judgment in favor of the

defendants in this Bivens 2 action alleging indifference to his medical needs. We

affirm.

BACKGROUND

Mr. White’s pro se brief provides no factual recitation of the case.

Accordingly, our factual recitation is based primarily on the district court’s fact

findings, as supplemented by the record and the defendants’ brief. At all times

relevant to this appeal, Mr. White was incarcerated at the United States

Penitentiary in Leavenworth.

I. Mr. White’s Medical Treatment:

On November 10, 2005, Mr. White was seen by the medical staff at the

Penitentiary for an intake screening. Mr. White told the medical staff that he was

not taking any medications but that he occasionally had some non-specific back

1
Appellant/Petitioner’s Opening Brief dated January 14, 2010, indicates his
“true name” is James Richard White.
2
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971).

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problems. The medical staff checked on Mr. White again on November 23, 2005,

and classified him as a Care Level 1 inmate with no restrictions. Mr. White’s

medical records indicate that he first complained of back pain on March 20, 2006.

On that date, Mr. White sought medical care so that he could get a lower bunk

pass. On March 30, 2006, x-rays were taken and they revealed that Mr. White

had “Degenerative Disc Disease” ( “DDD”). Accordingly, the prison medical

staff scheduled an appointment with an orthopaedic specialist on May 8, 2006.

Mr. White failed to attend that appointment.

On March 23, 2007 (basically one year later), Mr. White again sought

medical care in order to obtain a lower bunk pass. The medical staff declined his

request for a bunk pass because Mr. White did not have any specific complaints

or symptoms. Mr. White was again seen by the prison medical staff on May 14,

2007, when he complained of lower back pain, a pinched nerve and the inability

to walk more than fifty feet at a stretch. He was prescribed Piroxicam, a

nonsteroidal anti-inflammatory (“NSAID”) drug. Defendant Dr. William

McCollum, the Clinical Director at USP Leavenworth, concurred in this treatment

plan.

On June 20, 2007, Mr. White arrived at the USP Leavenworth Health

Services Department in a wheelchair and was treated for his complaint of pain in

his lower back. Mr. White also claimed he had some numbness in his buttocks

and the back of his legs. Mr. White was again diagnosed as having DDD, and he

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was given a deep intramuscular injection of 30 mg. of Ketorolac, another NSAID

medication commonly used for severe lower back pain. Mr. White was evaluated

again, on June 30, 2007, with continued lower back pain, and he was given a

larger dose of Ketorolac. He was also moved to the first floor, to make walking

easier. Defendant Dr. McCollum again concurred in the evaluation and treatment

plan for Mr. White.

Mr. White’s problems continued. On July 2, 2007, Mr. White was

evaluated in the Health Services Department after complaining of pinched nerves

in his back and an inability to walk on his own. Mr. White informed the medical

personnel that his pain radiated down his right leg. He was diagnosed with lower

back pain, DDD, and a possibly herniated disc. He was then provided with a

wheelchair, an early meal pass, a lay-in/idle pass, a prescription for Indomethacin

(another NSAID), as well as a prescription for Acetaminophen.

On July 3, 2007, Dr. McCollum requested an x-ray of Mr. White’s lower

spine, which revealed no abnormalities. That same day, an orthopaedic specialist

examined Mr. White. Mr. White told him about his history of lower back pain,

including the pain radiating down his leg and his inability to walk for any

distance. Mr. White also complained of weakness in his buttocks and urinary

incontinence, including his need to use a towel in the place of a diaper. The

specialist recommended a myleogram and a computer tomography, to be

performed as soon as possible. The specialist further recommended that Mr.

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White continue with the wheel chair and the early meal passes, and consider

undergoing surgery for his back. Dr. McCollum consulted with the specialist,

who indicated that Mr. White probably was suffering from compression or

inflamation of nerves on the lower spinal portion of the spinal canal, and would

need a CT scan with a probable follow-up surgical intervention.

Dr. McCollum then arranged an outside hospital visit with a specialist on

July 9, 2007. Mr. White was transported there, where a scan revealed that he had

“congenital spinal stenosis with mild-to-moderate stenosis at the L2-L3 and L3 to

L4.” The CT further revealed that Mr. White had a “complete obstruction to the

thecal sac at L3-L4 from what appeared to be a large disc herniation.” On

July 10, 2007, the specialist completed a successful Laminectomy and Disketomy.

Mr. White recovered well from the surgery, but continued to have numbness in

his legs and feet, weakness in his lower extremities, especially his left side, and

difficulty ambulating. Mr. White continues to have numbness in his extremities

and incontinence, and he believes that these problems are the result of the delay

in surgery, allegedly caused by the defendants.

II. Mr. White’s Grievance Proceedings:

USP Leavenworth maintains a grievance procedure. Defendant Jane Buser

was Mr. White’s correctional counselor at Leavenworth, and she assisted him

with the grievance process. She has no medical training or background. The first

step in the grievance process is the Informal Resolution Form (BP-8), which is

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used to document the inmate’s grievance and the staff’s efforts to informally

resolve the grievance. On June 6, 2007, Ms. Buser provided Mr. White with a

BP-8 form. Mr. White filled out the form, in which he claimed that he had been

trying to obtain medical care for his back since 2003. In particular, Mr. White

stated:

Disc and syactic [sic] nerve problems. Slipped disc and or
bulging disc. Now, there may be calcium build up around the syactic
[sic] nerve. This time I been this was since July 28, 2006. I would
like to be seen by the Orthopedics Dr: Call-Out. Back brace, X-rays
of syactic [sic] nerve section.

Doc. 35, Ex. D. The BP-8 was dated June 12, 2007, and was signed by Mr. White

on that date, although Ms. Buser did not receive the grievance until June 27,

2007. Ms. Buser reviewed the grievance and contacted the Health Services

Department to determine if Mr. White had signed up for sick call. After speaking

with the Health Services Department, Ms. Buser responded to the grievance on

June 29, 2007, by telling Mr. White, “per medical, return to sick call/triage, get

an appointment time or call out with a provider and request a consultation with a

doctor.” Id.

On July 1, 2007, Mr. White filed his request for Administrative Remedy

with the Warden. Mr. White’s request documented his physical problems with his

back and the care he received on June 20 and 30 of 2007. Mr. White requested an

MRI and an appointment with an orthopedic physician. As indicated above,

Mr. White did, in fact, see an orthopaedic specialist on July 3, 2007, and was

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operated on a week later. On August 22, 2007, Acting Warden Jack Fox issued a

denial of Mr. White’s grievance. Warden Fox stated that the treatment and

surgery performed on Mr. White was sufficient. Defendant Duke Terrell, the

Warden at Leavenworth until August 2007, did not review Mr. White’s grievance.

On September 4, 2007, Mr. White filed an appeal with the Regional

Director. Mr. White documented the chronological events of his own medical

care and stated that the delay in surgery resulted in nerve damage and

incontinence. On October 26, 2007, the Regional Director denied Mr. White’s

appeal and stated that the medical staff was responsive to his needs. On

November 29, 2007, Mr. White filed an Administrative Remedy Appeal with the

Office of General Counsel, complaining that the Health Services Department had

failed to send him out for surgery in a timely manner. On April 7, 2008, the

Administrator of National Inmate Appeals denied Mr. White’s appeal, because a

review of the matter failed to find any clinical indication that Mr. White had been

denied appropriate medical care or been subjected to delay in treatment.

Mr. White filed no other grievances relating to his medical treatment.

On June 19, 2008, Mr. White filed this complaint against six defendants

initially, 3 alleging violations of his Fifth and Eighth Amendment rights.

Mr. White claims that Ms. Buser violated his rights by failing to get medical

3
The district court judge ultimately dismissed Mr. White’s claims against
defendants Michael Nally (the Regional Director) and Harrell Watts (the
Administrator of National Appeals).

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attention for him when she observed him sitting at the bottom of the steps in pain.

Mr. White also alleges that Ms. Buser could have made a call to get him (Mr.

White) treatment immediately.

Mr. White alleges that Dr. McCollum denied his requests for medical care

by not releasing him for surgery on July 5. He also claims that McCollum has not

provided him with his medical files.

Finally, Mr. White claims that John Drennan, the Administrator of Health

Services, and Duke Terrell, the Warden of USP Leavenworth from July 2005 until

August 2007, violated his rights by failing to provide medical care in a timely

manner.

The defendants filed a motion to dismiss or, alternatively, a motion for

summary judgment. After observing that “exhaustion is required for all prisoner

suits seeking redress for prison circumstances or occurrences, regardless of

whether they involve general circumstances of incarceration or particular

episodes,” the court then stated that Mr. White “was required to exhaust his

administrative remedies through the BOP’s three-step grievance process before

filing a federal suit.” Memorandum & Op at 9, R. Vol. 3 at 90. The court then

concluded that Mr. White had failed to exhaust all of his claims relating to his

medical treatment at USP Leavenworth, except for his claims concerning “the

delay of medical treatment and surgery.” Id. at 10. With respect to those claims,

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the court found that the “only defendant involved in [Mr. White’s] treatment was

McCollum.” Id. at 13. With respect to Dr. McCollum, the court found:

the Tenth Circuit [has] held that a delay of five months for surgery
did not equate to deliberate indifference when the record presented
evidence of a reasonable response to plaintiff’s complaints of pain.
In this case, plaintiff was provided with adequate medical care.
When plaintiff’s pain was not subsided with medications, McCollum
ordered further testing and a consultation with an outside expert.
When the expert opined that surgery was necessary, plaintiff
underwent surgery only five days later. This delay is not abnormal
given that plaintiff was seen by the specialist on a Thursday and
scheduled for a CT on Monday. Plaintiff then underwent surgery on
Tuesday. This course of treatment does not arise to the level of a
constitutional violation.

Id. at 13-14. We note that, in his appeal, Mr. White does not specifically

challenge the district court’s conclusion that he had only exhausted his deliberate

indifference claim against Dr. McCollum, and not against the other defendants.

On appeal, Mr. White makes a generalized argument that the district court

erred in its decision, but he provides no specifics. We are aware that, because he

is a pro se advocate, Mr. White’s pleadings must be liberally construed. See Hall

v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10 th Cir. 1991). Nonetheless, he is

expected to construct his own arguments and adhere to the rules of procedure. Id.

Lacking any more specific argument by Mr. White, we simply consider the

propriety of the district court’s decision. Included in his generalized

disgruntlement with the district court’s decision is an argument that the district

court denied him due process by deciding his case on a motion to dismiss or

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motion for summary judgment, rather than letting him present all of his evidence

to a jury.

DISCUSSION

As indicated above, the district court held that Mr. White had failed to

exhaust his administrative remedies for the majority of his claims. More

specifically, Mr. White only exhausted his Eighth Amendment deliberate

indifference claim against Dr. McCollum. Thus, the district court correctly

dismissed all of his other claims as unexhausted. See Jones v. Bock, 549 U.S.

199 (2007).

Furthermore, the record on summary judgment clearly supports the district

court’s conclusion that Dr. McCollum was not deliberately indifferent to Mr.

White’s back problems. And, the district court correctly found that there is no

evidence that defendants Buser, Drennan or Terrell had any personal participation

in the only exhausted claim regarding Mr. White’s medical treatment.

Finally, we conclude that the district court did not abuse its discretion in

not appointing counsel for Mr. White and in deciding this matter on summary

judgment. Mr. White has no free-standing due process right to have his case tried

by a jury.

Accordingly, we affirm the district court’s grant of summary judgment, for

substantially the reasons stated in the district court’s memorandum and order.

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Mr. White has filed a motion to proceed further without prepayment of fees

and/or costs. We grant his motion, but remind him that he is obligated to

continue making partial payments until he has paid the full amount.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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