F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 8, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DAVID E. CALLAHAN,
Plaintiff-Appellant,
v. No. 05-6234
(D.C. No. CIV-03-1434-F)
SOUTHWESTERN MEDICAL (W.D. Okla.)
CENTER OF LAWTON; ROBERT
MORGAN, M.D.; JOHN DOE,
Does #1, #2, #3,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
Plaintiff David Callahan, an Oklahoma state prisoner appearing pro se,
filed a complaint, later amended, against Southwestern Medical Center (SWMC),
*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
one of SWMC’s physicians, and several unidentified SWMC employees, alleging
that defendants’ medical treatment of him violated his constitutional rights under
42 U.S.C. § 1983 and his rights under the Americans with Disabilities Act (ADA),
the Rehabilitation Act (RA), and the Civil Rights of Institutionalized Persons Act
(CRIPA). The district court dismissed the complaint, and we affirm.
Plaintiff was taken to SWMC for treatment in September 2001, after he was
found unconscious in his cell. Plaintiff alleged in his complaint that SWMC
personnel believed that he was faking his injuries and discriminated against him
by not taking his injuries seriously. He alleged that an unidentified male SWMC
employee insulted him and hit him on the tailbone, and that SWMC medical
personnel failed to diagnose his urinary tract infection and neck and back injuries.
SWMC moved to dismiss under Fed. R. Civ. P. 12(b)(6). In doing so,
SWMC presented evidence to the court outside of the pleadings. After giving
plaintiff notice and an opportunity to submit his own additional materials, which
plaintiff did, the district court converted the motion to dismiss into a motion for
summary judgment. See Whitesel v. Sengenberger, 222 F.3d 861, 866 (10th Cir.
2000). Adopting the magistrate judge’s report and recommendation (R&R), the
district court dismissed plaintiff’s § 1983 claim against SWMC because the
undisputed evidence demonstrated that SWMC is not a state actor acting under
color of state law, and, thus, is not liable under § 1983 for allegedly violating any
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of plaintiff’s constitutional rights. See Gallagher v. Neil Young Freedom
Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (“[T]he only proper defendants in a
Section 1983 claim are those who represent the state in some capacity[.]”
(quotation omitted)). It also dismissed plaintiff’s claims under the ADA and the
RA because plaintiff never asserted in his original or amended complaint that he
had a qualifying disability under the ADA or RA, but had only alleged claims
relating to his medical treatment, which are not cognizable under the ADA or RA.
See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005)
(inmate’s claims under the ADA and RA were properly dismissed for failure to
state a claim as they were based on medical treatment decisions). The district
court dismissed plaintiff’s CRIPA claim because SWMC is not a state-owned
facility or institution, as defined in CRIPA, see 42 U.S.C. § 1997(1)(A), and
plaintiff does not have a private right of action under CRIPA, see 42 U.S.C.
§ 1997a(c) (CRIPA complaint must be signed by Attorney General). Plaintiff did
not make any legal or factual arguments in his objections to the R&R or in his
appellate brief with respect to any of these issues; therefore, these issues are
waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7
(10th Cir. 1994) (stating that failure to raise an issue in an opening brief results in
waiver of that issue).
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The district court dismissed claims against Dr. Morgan and John Doe
Number Three because plaintiff never identified or timely served them. It also
dismissed the claims against John Does Number One and Two based on
insufficiency of service of process, insufficiency of process, and expiration of the
applicable statutes of limitation.
On appeal, plaintiff argues that he should be allowed to amend his
complaint to remove Dr. Morgan as a defendant and add a Dr. Fogle, whom he
claims is a physician at the prison who directed his medical treatment at SWMC.
Plaintiff never sought to add Dr. Fogle as a defendant at any stage of the
proceedings before the district court. We do not consider an issue that was not
raised before the district court, Walker v. Mather (In re Walker), 959 F.2d 894,
896 (10th Cir. 1992), and it is generally improper to add parties on appeal.
Plaintiff also argues he should be allowed to receive the names of the
unidentified John Doe defendants. Plaintiff’s amended complaint adding the John
Doe defendants was filed days before the expiration of the applicable two-year
statute of limitations. In an affidavit, SWMC averred that it could not identify
any of the John Doe defendants and could not even confirm whether they were
employed by SWMC. The magistrate judge granted plaintiff several extensions of
time in order to identify and serve the John Doe defendants, but he was unable to
do so. The district court eventually ruled that additional extensions of time were
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unwarranted because any attempt to file an amended complaint naming the
John Doe defendants would not relate back to the date of the amended complaint,
see Garrett v. Fleming, 362 F.3d 692, 696-97 (10th Cir. 2004), and, would,
therefore, be time-barred. We find no abuse of discretion in the district court’s
dismissal of claims against the unknown John Doe defendants. See id.; see also
Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995) (holding that a
district court’s dismissal for failure to effect service is reviewed for abuse of
discretion). Since it would now be futile to amend plaintiff’s complaint, he is not
entitled to be provided with the names of the John Doe defendants.
The judgment of the district court is AFFIRMED for substantially the
reasons set forth in the magistrate judge’s R&R dated April 29, 2005, and the
district court’s order dated July 7, 2005.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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