Sealock v. State Of Colorado

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 11 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RICHARD J. SEALOCK,

Plaintiff-Appellant,

v. No. 99-1185

STATE OF COLORADO; ROY
ROMER, as Governor of the State of
Colorado; COLORADO
DEPARTMENT OF CORRECTIONS;
RENEE HUBER, an individual; ROY
HAVEN, an individual; NANCY
FRENCH, an individual; JOSEPH
BARRETT, an individual; STEVE
RUIZ, an individual,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 97-S-111)

Submitted on the briefs:

Robert C. Ozer of Ozer & Ozer, P.C., Denver, Colorado, for Plaintiff-Appellant.

Ken Salazar, Colorado Attorney General, Grace A. Belsches, Special Assistant
Attorney General, Denver, Colorado, for Defendants-Appellees.

Before BALDOCK , HENRY , and MURPHY , Circuit Judges.
HENRY , Circuit Judge.

Appellant Richard J. Sealock appeals from the district court’s order

granting summary judgment to the appellees on his complaint brought pursuant to

42 U.S.C. § 1983. We affirm in part, and reverse in part. 1

I.

The facts of this case, adduced for summary judgment purposes, are

presented in the light most favorable to appellant, and we have given him the

benefit of every reasonable inference therefrom. See Mann v. United States ,

204 F.3d 1012, 1016 (10th Cir. 2000). At the time of the events giving rise to

this case, appellant was incarcerated at Arrowhead Correctional Facility.

Appellant awoke at 1:30 a.m. on January 23, 1996. He was sweating so heavily

that his bed and clothing were soaked. He felt unwell. Appellant asked his

roommate at the facility, Zack Bernal, to summon a correctional officer.

1
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.

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 In response to Bernal’s entreaty, Officer Nancy French appeared at

appellant’s cell. She observed that appellant was sweating, vomiting and

appeared very pale. Appellant told her he had a crushing pain in his chest, he had

trouble breathing, and he had been vomiting all night. 2
French told him that there

was nothing she could do, and that he would have to wait until six a.m. because

there was no one at Clinical Services. She told appellant to let her know if he got

worse.

Appellant lay in bed for another hour; the chest pain got worse. 3
He asked

Bernal to go back and get French again. She showed up about five minutes later

with the shift commander, Sergeant Barrett. Bernal told Barrett that appellant

was having a heart attack. Appellant told Barrett he was having chest pain and

might be having a heart attack. Barrett told appellant there was nothing he could

do for him. Barrett stated there was no one at Clinical Services, it would take an

hour to get the van warmed up, and it was snowing outside. Barrett offered

appellant an antacid, which he declined. Appellant testified that Barrett told him:

“Just don’t die on my shift. It’s too much paper work.” Appellant’s App., Vol. I

at 103.

2
French denies that appellant told her about his chest pain, trouble
breathing or vomiting. She claims he merely stated that he didn’t feel good.
3
French’s version of events does not contain the one-hour delay.

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 Sometime later, French told appellant she had spoken to someone about his

situation, who had told her to give him two Tylenol. She gave him the Tylenol

and told him that he could see a physician’s assistant at six a.m.

Appellant arrived at the infirmary at six a.m. There, he told nurse Renee

Huber that he had chest pain and couldn’t breathe. She told him that he had the

flu and that there was nothing she could do for him until the physician’s assistant

arrived at 8:00 a.m. Huber made the following notes after examining appellant:

C/O throat pain, nausea & vomiting. States he’s been throwing up all

night & now having dry heaves.

Temp. 96.2 Pulse 76 Resp. 18 B/P 110/68

Lungs clear. Skin warm & dry. Had dry heave episode in

clinic expelling clear fluid. States that he had sweats all night &

unable to sleep. States he was having [a lot] of throbbing pressure

pain in chest and throat–burning sensation. Unable keep [illegible]

or Tylenol down.

Appellant’s App., Vol. II at 335.

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 Huber spoke to P.A. Roy Havens at approximately 8:00 a.m. Huber

testified that she read Havens the above notes, including the reference to

“throbbing pressure pain in chest and throat.” Havens testified, however, that

Huber never mentioned chest pain to him over the telephone. If she had, he said,

he would have called an ambulance immediately.

Based on the information he received from Huber, Havens ordered Huber to

give appellant a shot of Phenergan. She gave him the shot and at Havens’

instruction, ordered a lay-in for the rest of the day. Appellant stayed in bed until

the next day, January 24th. He testified he felt so bad that he thought he was

dying.

The next day, the infirmary approved another 24 hour lay-in. Appellant

was told that he would be seen at noon or 1:00 p.m. Appellant arrived at the

infirmary at 1:00 p.m. He told the nurse there that his chest was killing him, he

couldn’t breathe, and that the pain had traveled into his arms.

P.A. Quackenbush arrived and administered an EKG. He told appellant

there had been some changes in his heart. He gave appellant nitroglycerin and

ordered an ambulance. Appellant was taken to St. Thomas More Hospital and

later to Parkview Hospital, where it was determined that he had suffered a major

heart attack. Appellant asserts that after he returned from Parkview, appellee

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Steve Ruiz forced him to climb stairs, in violation of his doctor’s orders, which

caused him further chest pain and a return to the hospital.

Appellant thereafter brought this civil rights action against the appellees.

In addition to his § 1983 claim, he alleged pendent state law claims and a claim

for declaratory judgment that Colo. Rev. Stat. § 24-10-106(1.5)(a) is

unconstitutional. A magistrate judge assigned to the case recommended that

summary judgment be granted on all of appellant’s § 1983 claims, except the

claim against Sergeant Barrett. The district court rejected the magistrate judge’s

recommendation as to Sergeant Barrett and granted summary judgment for

appellees on all of appellant’s claims.

II.

Summary judgment is appropriate if 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 a judgment as a
matter of law. We review a grant of summary judgment de novo ,
applying the same standard as the district court. We examine the
record to determine whether any genuine issue of material fact was in
dispute; if not, we determine whether the substantive law was
applied correctly, and in so doing we examine the factual record and
reasonable inferences therefrom in the light most favorable to the
party opposing the motion. However, where the non moving party
will bear the burden of proof at trial on a dispositive issue that party
must go beyond the pleadings and designate specific facts so as to
make a showing sufficient to establish the existence of an element
essential to that party's case in order to survive summary judgment.

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McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998)

(quotations and citations omitted).

III.

A prison official’s deliberate indifference to an inmate’s serious medical

needs violates the Eighth Amendment. See Estelle v. Gamble , 429 U.S. 97, 102

(1976). “Deliberate indifference” involves both an objective and a subjective

component. The objective component is met if the deprivation is “sufficiently

serious.” Farmer v. Brennan , 511 U.S. 825, 834 (1994). A medical need is

sufficiently serious “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.” Hunt v. Uphoff , 199 F.3d 1220,

1224 (10th Cir. 1999) (quoting Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir.

1980) (further quotation omitted)). The subjective component is met if a prison

official “knows of and disregards an excessive risk to inmate health or safety.”

Farmer , 511 U.S. at 837.

1. Nancy French

In his report and recommendation dated February 9, 1999, the magistrate

judge recommended that summary judgment be granted in favor of all of the

appellees, with the exception of Joseph Barrett. Appellant filed timely objections

to the magistrate judge’s recommendations. In these objections, however, he did

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not contest the magistrate judge’s recommendations that summary judgment be

granted in favor of appellee Nancy French. For this reason, under our “firm

waiver rule,” he is barred from challenging the district court’s order granting

summary judgment to French on his Eighth Amendment claim. See Vega v.

Suthers , 195 F.3d 573, 579-80 (10th Cir. 1999); United States v. One Parcel of

Real Property , 73 F.3d 1057, 1059 (10th Cir. 1996). We therefore affirm

summary judgment in favor of French.

2. Joseph Barrett

Appellant asserts that appellee Joseph Barrett unconstitutionally delayed his

receipt of medical treatment. Although Barrett disclaims any recollection of the

events, the following reasonable inferences concerning his conduct may be drawn

from the testimony of other witnesses for purposes of summary judgment

consideration. Barrett observed appellant at a time when he was very pale,

sweating and had been vomiting. Both appellant and Zack Bernal, appellant’s

roommate, told Barrett that appellant was or might be having a heart attack. 4

Barrett refused to transport appellant immediately to a doctor or a hospital

4
The district court oppugned this testimony as “20/20 hindsight
testimony of Plaintiff and Bernal.” Appellant’s App., Vol. II at 488. It is not the
task of a court considering summary judgment to weigh the evidence. See True v.
United States , 190 F.3d 1165, 1176 (10th Cir. 1999).

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because it was snowing outside and it would take time to warm up the prison van

for transportation. Finally, Barrett told appellant not to die on his shift.

We consider, first, whether appellant’s need was “sufficiently serious” to

meet the objective element of the deliberate indifference test. Delay in medical

care only constitutes an Eighth Amendment violation where the plaintiff can show

that the delay resulted in substantial harm. See Olson v. Stotts , 9 F.3d 1475, 1477

(10th Cir. 1993). The district court concluded that appellant failed to show that

the delay in receiving medical treatment caused him any injury.

Appellant presented general evidence that time is of the essence when

someone is experiencing a heart attack. He did not present specific medical

evidence of damage to his heart resulting from the delay. Even if appellant failed

to show that his heart was damaged by the delay, however, we believe he has

shown that his need was sufficiently serious to require prompt medical attention. 5

Appellant presented evidence that he suffered from severe chest pain which

he reasonable believed was caused by a heart attack. The pain and suffering

imposed by Barrett’s failure to get him treatment lasted several hours. The Eighth

Amendment forbids “unnecessary and wanton infliction of pain .” Wilson v.

5
To the extent appellees make a causation-based argument that
Barrett’s action or inaction did not cause appellant any injury, this argument also
must fail. Although Barrett did not cause appellant’s heart attack, there is factual
evidence from which a jury could conclude that the delay occasioned by his
inaction unnecessarily prolonged appellant’s pain and suffering.

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Seiter , 501 U.S. 294, 297 (1991) (emphasis added; quotation omitted); cf. also

Jones v. Johnson , 781 F.2d 769 (9th Cir. 1986) (holding pain and suffering and

inability to work resulting from untreated hernia stated cause of action under

Fourteenth Amendment). Certainly, not every twinge of pain suffered as the

result of delay in medical care is actionable. The evidence in this case, however,

sufficiently establishes the objective element of the deliberate indifference test. 6

The facts, as discussed above, also demonstrate for summary judgment

purposes that Barrett knew of and disregarded the excessive risk to appellant’s

health that could result from the delay. There is evidence that Barrett was

informed that appellant might be having a heart attack, and that he was present

when appellant displayed symptoms consistent with a heart attack. Barrett

allegedly refused to drive appellant to the hospital, and told appellant not to die

on his shift. Appellant has met the subjective element of the deliberate

indifference test for purposes of summary judgment. We therefore reverse

summary judgment in favor of Barrett on appellant’s Eighth Amendment claim.

3. Renee Huber

6
We are aware of the limitation on actions by prisoners for mental and
emotional injuries without a prior showing of physical injury. See 42 U.S.C. §
1997e(e). Assuming without deciding that physical pain constitutes “mental or
emotional injury” within the meaning of the statute, appellant satisfies the
statutory requirement because he has made a prior showing of physical injury, i.e.
his heart attack.

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 We agree with the district court that Renee Huber is entitled to summary

judgment. At worst, she misdiagnosed appellant and failed to pass on information

to P.A. Havens about appellant’s chest pain. Appellant has failed to show that

she was deliberately indifferent to his serious medical needs.

4. Roy Havens

The district court found that P.A. Roy Havens was at most negligent and

was therefore not liable for deliberate indifference. Our cases recognize two

types of conduct constituting deliberate indifference. First, a medical

professional may fail to treat a serious medical condition properly. Where this

sort of conduct is alleged, the medical professional has available the defense that

he was merely negligent in diagnosing or treating the medical condition, rather

than deliberately indifferent. See, e.g. , Estelle , 429 U.S. at 105-06.

The second type of deliberate indifference occurs when prison officials

prevent an inmate from receiving treatment or deny him access to medical

personnel capable of evaluating the need for treatment. See, e.g. , Ramos , 639

F.2d at 575. Ordinarily, a medical professional will not be liable for this second

kind of deliberate indifference, because he is the person who provides the

treatment. If, however, the medical professional knows that his role in a

particular medical emergency is solely to serve as a gatekeeper for other medical

personnel capable of treating the condition, and if he delays or refuses to fulfill

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that gatekeeper role due to deliberate indifference, it stands to reason that he also

may be liable for deliberate indifference from denying access to medical care.

At his deposition, P.A. Havens testified as follows:

[I]f there’s a nonexplained chest pain, there’s a standard thing we all
do; that is, they should call the ambulance, and paramedics will come
out. In the mean time, they can go ahead and do an EKG and have
that finished for the ambulance and take to the hospital. The
standard procedure is, they all go to the hospital for a cardiac
workup. The reason I’m expounding on that is, if we’ve got
somebody with nausea, vomiting and throbbing severe chest pain, the
red lights [come] on. It’s time to take them to the hospital. I don’t
need to see him. I don’t need to do anything more. He needs
emergency at that time. Call the ambulance. That is the standard
procedure I would do for any chest pain I don’t have a reason for.

Appellant’s App., Vol. II at 380 (emphasis added).

If I would have been told those words [chest pain], then,
there’s just one thing we do. It’s not like I’m going to sit and think
about this for [a while], or I’m going to call somebody, no. There’s
one thing we do, we send them, that’s it. There’s no negotiating, at
least not for me, ever. In four years, chest pain that I don’t know
why, the nurse doesn’t know why, they go. Even if they were there
this morning, they came back, they’ve got more chest pain, back
again.

Id. at 382.

From this candid testimony, we conclude that if Havens knew that appellant

had unexplained chest pain, it would have been more than mere “malpractice” or

“negligence” to fail to call an ambulance. Havens admits that if he had been told

about chest pain, he would not have needed to conduct further diagnosis or

treatment of appellant; his duty was to get help for appellant from paramedics and

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other medical sources. He knew that unexplained chest pain posed a serious risk

to appellant’s health. Failure to summon an ambulance would have disregarded

that risk, arguably constituting deliberate indifference to a serious medical need.

Havens testified that he was never told about the unexplained chest pain.

This may be true. There is a conflict in the evidence, however, because Huber

stated that she did tell him about the chest pain. 7
Moreover, the medical record

from which she read to him includes a reference to throbbing chest pain. 8
We

cannot resolve this factual issue on summary judgment. If Havens did know

about the chest pain, by his own testimony he may have been deliberately

indifferent in failing to summon the ambulance. For this reason, we must reverse

summary judgment in favor of Havens.

5. Steve Ruiz

Appellant’s claim against Ruiz suffers from the same procedural deficit as

his claim against Nancy French. Appellant failed to object to the magistrate

7
Huber stated, unlike Havens, that she did not consider the chest pain
to be a cardiac symptom. Thus, as noted above, she at most made a misdiagnosis,
and may have failed to communicate properly with Havens. These errors do not
rise to the level of deliberate indifference on her part.
8
Havens testified that after he heard that appellant had suffered a
heart attack, he went back over appellant’s chart. He did not find any mention of
throbbing chest pain. Upon re-reading the chart a second time, however, he
discovered the notation mentioning chest pain in Huber’s notes, which he did not
remember reading the first time.

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judge’s recommendation that summary judgment be granted to Ruiz. We

therefore affirm summary judgment in favor of Ruiz.

IV.

Appellant also contends that the district court erred in granting summary

judgment on his claim that Colo. Rev. Stat. § 24-10-106(1.5)(a) is

unconstitutional. This section of the Colorado statutes excludes from the state’s

waiver of sovereign immunity for tort suits actions brought by “claimants who

have been convicted of a crime and incarcerated in a correctional facility or jail

pursuant to such conviction.” Id. It further provides that “such correctional

facility or jail shall be immune from liability.” Id. Appellant complains that he is

treated differently from those injured by operation of a correctional facility who

have not been convicted of a crime and incarcerated pursuant to their conviction.

The district court carefully analyzed appellant’s claim. It concluded that

the rational basis test applied to appellant’s equal protection claim, and that

§ 24-10-106(1.5)(a) is rationally related to legitimate state interests. Having

conducted a de novo review of the issue, we agree. For substantially the same

reasons detailed in the district court’s order of February 9, 1998, we affirm the

grant of summary judgment on appellant’s equal protection claim.

Appellant further argues, however, that § 24-10-106(1.5)(a) deprives him of

a property interest without due process, and denies him access to the courts in

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violation of the Equality of Justice provision of the Colorado constitution. 9
As

appellant admits, his due process claim fails if the challenged provision is

rationally related to a legitimate state purpose. We have already affirmed the

district court’s finding that the provision meets this test.

We also affirm the district court’s rejection of appellant’s claim concerning

access to the courts. Article II, Section 6 of the Colorado Constitution provides

in pertinent part that “[c]ourts of justice shall be open to every person, and a

speedy remedy afforded for every injury to person, property or character.” This

section does not create any substantive right in a prospective litigant; rather, it

creates “a procedural right to a judicial remedy whenever the [Colorado] General

Assembly creates a substantive right under Colorado law.” Simon v. State

Compensation Ins. Auth. , 903 P.2d 1139, 1143-44 (Colo. Ct. App. 1994), rev’d on

other grounds , 946 P.2d 1298 (Colo. 1997). Moreover, the section does not

prevent the general assembly from changing a law which creates a right, or from

placing valid limitations on a remedy. See Norsby v. Jensen , 916 P.2d 555,

563-64 (Colo. Ct. App. 1995). Appellant fails to show that the Colorado general

assembly violated Article II, Section 6 when it adopted § 24-10-106(1.5)(a)

limiting the state’s waiver of immunity in 1994.

9
Appellees argue that appellant failed to raise these issues in the
district court. This is incorrect. See Appellant’s App., Vol. I at 93-95.

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 The judgment of the United States District Court for the District of

Colorado is AFFIRMED in part, REVERSED in part, and REMANDED for

further proceedings in accordance with this opinion.

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