Persaud v. Doe

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 24, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

R AM A NA N D PER SA U D ,

Plaintiff - Appellant,
No. 06-6234
v. (D.C. No. CIV-05-09-R)
(W .D. Okla.)
JOHN DOE; T. BU TTS; DR. TO M F.
G O FO RTH ; L. WA L KER ; T. KELSO;
C. W ILLIAM S; E. BARBY; J.
PA RK ER ; U N ITED STA TES OF
A M ER ICA,

Defendants - Appellees.

OR D ER AND JUDGM ENT *

Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **

Ramanand Persaud, a federal inmate appearing pro se, appeals from the

district court’s grant of summary judgment in favor of defendants, John Doe, T.

*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Butt, 1 Tom F. Goforth, L. W alker, T. Kelso, C. W illiams, E. Barby, J. Parker, and

the United States of America. On February 19, 2004, federal authorities

transferred M r. Persaud from a Federal Correctional Institute (“FCI”) in Elkton,

Ohio (“FCI Elkton”) to an FCI in Schuykill, Pennsylvania (“FCI Schuykill”). En

route, M r. Persaud was housed temporarily for nearly two months at the Federal

Transfer Center at Oklahoma City, Oklahoma (“FTC OKC”). M r. Persaud claims

that during transfer defendant Doe’s actions, or lack thereof, caused injury to his

left ankle and that he subsequently received inadequate medical treatment upon

arrival at FTC OKC.

As a result, M r. Persaud brought an action against defendants pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1),

alleging that: during his transfer between federal prisons, defendants secured his

legs using metal ankle cuffs, rather than flexicuffs, as allegedly required in his

medical records; the metal ankle cuffs caused severe pain and bleeding because

they rubbed against steel screws previously surgically inserted in his left ankle;

and that defendants w ere deliberately indifferent to his medical needs during this

time. The district court referred the matter to a magistrate judge and, after

resolving M r. Persaud’s objections to the magistrate’s report and

1
In the caption to this case, M s. Butt is referred as M s. Butts. Seeing as
the defendants’ submissions consistently refer to her as M s. Butt, however, we
will do the same.

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recommendation, granted summary judgment to defendants. Our jurisdiction

arises under 28 U.S.C. § 1291, and we affirm.

W e review a district court’s grant of summary judgment de novo, applying

the same standards as the district court. Hackworth v. Progressive Cas. Ins. Co.,

468 F.3d 722, 725 (10th Cir. 2006). Summary judgment is appropriate only

where there exists no genuine issue of material fact, and the moving party is

entitled to judgment as a matter of law . Fed. R. Civ. P. 56(c).

I. M r. Persaud’s B ivens claims against D efendants Butt and Goforth

M r. Persaud’s Bivens claims against Defendants Butt and Goforth allege

that both defendants w ere deliberately indifferent to his serious medical needs in

violation of the Eighth A mendment. At the time of M r. Persaud’s transfer, M s.

Butt was the associate warden at FTC OKC and Dr. Goforth was the Clinical

Director of the medical clinic at OKC. Both M s. Butt and Dr. Goforth argued

below that they were entitled to summary judgment because M r. Persaud failed to

bring forth sufficient evidence that they were directly or personally involved in

any decisions about M r. Persaud’s medical care, and the district court agreed.

In order to establish Bivens liability, a plaintiff is required to bring forth

evidence that an individual defendant directly and personally participated in the

purported constitutional violation. See Steele v. Fed. Bureau of Prisons, 355 F.3d

1204, 1214 (10th Cir. 2003), cert. denied, 543 U.S. 925 (2004). As to M s. Butt,

M r. Persaud alleges in his complaint that, nearly a month after he arrived at FTC

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OKC, M s. Butt “personally saw and interviewed [M r.] Persaud in regards to the

leg injury, advising [M r.] Persaud to contact [Dr.] Goforth.” R. Doc. 1 at 14; see

also id. at 8. M r. Persaud also maintains that M s. Butt claimed she would take

steps to get him on a flight to Philadelphia as soon as possible. Id. at 8. For her

part, M s. Butt notes that M r. Persaud’s medical records do not indicate that he

complained to her about an injury or that she referred him for medical care. R.

Doc. 49, Ex. 2 at 1. M oreover, she has no memory of M r. Persaud or of an

inmate with the injury he describes. Id. Viewing the evidence in the light most

favorable to M r. Persaud, he has failed to create a genuine issue of material fact

as to M s. Butt’s direct and personal involvement in any alleged deliberate

indifference to his medical needs.

The evidence only indicates that M s. Butt, when presented w ith M r.

Persaud’s complaint, attempted to help him (as she would any inmate) by

informing him of the proper individual (Dr. G oforth) to contact within FTC OKC.

After all, M s. Butt is not a medical doctor and could not have treated M r. Persaud

herself. Also, the fact that M s. Butt may have promised to transport him to

Philadelphia in an expeditious manner does not constitute deliberate indifference

given that he was seen at FTC OKC. As a result, the district court correctly

determ ined that M s. B utt is entitled to judgment as a matter of law.

The only concrete allegation M r. Persaud asserts against Dr. Goforth is that

the doctor “personally review ed oral statements and written documentation in

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regards to [M r.] Persaud’s leg injury.” R. Doc. 1 at 17; see also Aplt. Br. at 20.

Dr. Goforth claims that “[t]he medical records indicate that I never saw or

examined plaintiff while he was at the FTC.” R. Doc. 49 Ex. 1 at 2. The doctor

also claims that M s. Butt never mentioned M r. Persaud, let alone referred M r.

Persaud to him. Id. Taking M r. Persaud’s allegation at face value, the evidence

indicates only that Dr. Goforth reviewed M r. Persaud’s medical file (and later

expressed the opinion that the treatment received by M r. Persaud was within the

applicable standard of care, i.e. non-negligent). Id. This is insufficient, as a

matter of law, to directly and personally implicate Dr. Goforth in the alleged

deliberate indifference to M r. Persaud’s medical needs, and Dr. Goforth was

entitled to summary judgment.

II. M r. Persaud’s Bivens claims against defendants Barby, Kelso, Parker and

W alker

M r. Persaud also claims that defendants Barby, Kelso, Parker and W alker

were deliberately indifferent to his serious medical needs in violation of the

Eighth Amendment. 2 The government sought summary judgment on the grounds

that during his stay at FTC OKC, M r. Persaud was seen five times by medical

personnel for various complaints, and was treated appropriately, particularly

2
In his appellate brief, M r. Persaud also argues that Sandra J. Craiger, a
physician’s assistant at FTC OKC, was also deliberately indifferent to his medical
needs. See Aplt. Br. at 8-9. M s. Craiger, however, has not been named as a
defendant in this action.

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given that he did not mention the problem during some of those visits. The

government also maintained that his problem was caused not by the metal ankle

cuffs, but rather by his increase in w ork, which aggravated a pre-existing injury

which had been treated with surgical screws to stabilize the bone. Finally, the

government maintains that in M ay 2004, M r. Persaud had successful surgery to

remove the loose surgical screws from his left ankle. The district court granted

summary judgment to these defendants on the ground that M r. Persaud “failed to

point to any evidence of deliberate indifference by these Defendants of a serious

health risk to [M r. Persaud] or evidence which creates a genuine issue for trial.”

R. Doc. 86 at 2.

The Eighth Amendment creates an obligation on the part of prison officials

to provide adequate health care to inmates. Estelle v. Gamble, 429 U.S. 97, 103

(1976). This does not mean, however, that a mere complaint that a physician has

been negligent in diagnosing or treating a medical condition states a valid claim

of medical mistreatment under the Eighth Amendment. Id. at 106. Rather, “a

prisoner must allege acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Id. This standard is met when (1) there is

a medical need “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,” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.

2000), and (2) a prison official “knows of and disregards an excessive risk to

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inmate health or safety,” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

On February 23, 2004, four days after M r. Persaud arrived at FTC OKC,

defendant Barby, an advanced registered nurse practitioner, treated M r. Persaud.

This was the one and only time M r. Barby treated M r. Persaud. W hile M r.

Persaud maintains that he informed the medical staff at FTC OKC of his ankle

pain during each of his medical checkups, the medical records do not bear this

out. M r. Persaud’s medical chart for the February 23 checkup with M r. Barby

does not indicate that M r. Persaud complained of ankle pain. Rather, the chart

indicates only that M r. Persaud was provided with an over-the-counter

antihistamine. R. Doc. 39 Ex. 2 at 3. Because M r. Persaud has brought forth no

evidence, other than conjecture, to indicate that M r. Barby knew of M r. Persaud’s

ankle pain, summary judgment in M r. Barby’s favor w as appropriate.

M s. Kelso, also an advanced registered nurse practitioner employed at FTC

OKC, saw M r. Persaud on two occasions— February 26, 2004 and M arch 2, 2004.

M r. Persaud’s medical record indicates that M r. Persaud, again, did not complain

of ankle pain during his visit with M s. Kelso on February 26. Instead, he

complained of athlete’s foot and was prescribed an antifungal cream. Id. M r.

Persaud’s first complaint to FTC OKC staff regarding ankle pain occurred during

his M arch 2 visit with M s. Kelso. See id. As to that visit, M s. Kelso states that

“[u]pon examination, I found the pedal pulse to be normal. No deformity was

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evident and the skin was intact (no broken skin).” R. Doc. 48 Ex. 3 at 1. 3 In

response to his complaint, M s. Kelso prescribed M r. Persaud over-the-counter

pain medication and wrapped the ankle. R. Doc. 39 Ex. 2 at 3. Based on the

foregoing, no reasonable jury could find that M s. Kelso was deliberately

indifferent to M r. Persaud’s medical needs. W hen informed of M r. Persaud’s

ankle pain, M s. Kelso responded with treatment— though M r. Persaud disputes the

efficacy of that treatment, he cannot establish deliberate indifference.

Accordingly, the district court properly entered summary judgment for M s. Kelso.

M s. Parker, an advanced registered nurse practitioner employed at FTC

OKC as an independent contractor, saw M r. Persaud on two occasions. During

the first visit, on M arch 18, 2004, M s. Parker notes that “[M r. Persaud] did not

complain of or present symptoms consistent with significant ankle pain.” R. Doc.

53 Ex. A at 2. M r. Persaud’s medical records indicate that, nonetheless, M s.

Parker, consistent with prison policy, prescribed M r. Persaud an over-the-counter

pain medication. R. Doc. 39 Ex. 2 at 4. The medical records show that during

M r. Persaud’s second visit with M s. Parker, on M arch 23, 2004, M r. Persaud did

not complain of ankle pain, and was prescribed antifungal cream for athlete’s

foot. Id. View ing the evidence in the light most favorable to M r. Persaud, it

appears that M s. Parker cannot be deemed deliberately indifferent and was thus

3
A week later, on M arch 9, 2004, in a visit with defendant C. W illiams,
M r. Persaud rated the pain he was experiencing in his ankle, on a scale of one
through ten, as a four. R. Doc. 39 Ex. 2 at 3.

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properly granted summary judgment.

Finally, defendant W alker, a physician’s assistant with the Bureau of

Prisons, treated M r. Persaud on M arch 26, 2004. This was the last time M r.

Persaud was treated at FTC OKC. M r. W alker’s notes in the medical records

pertaining to M r. Persaud’s M arch 26 checkup are devoid of any mention of ankle

pain. See R. Doc. 39 Ex. 2 at 4; see also R. Doc. 48 Ex. 4 at 1. Rather, according

to M r. W alker, he examined M r. Persaud and prescribed him antibiotic ointment

for chapped lips or skin. R. Doc. 48 Ex. 4 at 1; see also R. Doc. 39 Ex. 2 at 4.

M r. Persaud has brought forth absolutely no evidence, other than his own

uncorroborated allegations, that M r. W alker was even aware that M r. Persaud was

suffering ankle pain. And this lack of evidence as to aw areness is fatal to M r.

Persaud’s deliberate indifference claim against M r. W alker.

III. M r. Persaud’s claims against defendants Doe and W illiams.

M r. Persaud also pressed deliberate indifference claims against John Doe,

an unknown release and delivery officer at FCI Elkton, and C. W illiams, a

member of the medical staff at FTC OKC. The district court dismissed these

claims without prejudice for failure to timely and properly effect service of

process. See R. Doc. 86 at 4. Because M r. Persaud’s appellate brief makes no

mention of the district court’s dismissal as to these claims and does not argue why

the district court may have been in error, the district court’s dismissal of these

claims is affirmed. See Adler v. W al-M art Stores, Inc., 144 F.3d 664, 679 (10th

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Cir. 1998) ( “Arguments inadequately briefed in the opening brief are waived . . .

.”); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994) (observing that

appellant’s pro se status does not excuse him from “comply[ing] with the

fundamental requirements of the Federal Rules of Civil and Appellate

Procedure”); Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.

1990) (holding issue not argued in appellate brief is waived).

IV. M r. Persaud’s FTCA claims against the United States of America

Like the district court, we liberally construe M r. Persaud’s complaint to

allege two FTCA claims against the United States: (1) negligence based on an

unknown release and delivery officer’s failure to use flexicuffs, instead of metal

cuffs, on M r. Persaud’s ankles during transport, and (2) negligence based on the

failure of the FTC OKC medical staff to properly treat M r. Persaud’s alleged

ankle injury.

The “test established by the Tort Claims Act for determining the United

States’ liability is whether a private person would be responsible for similar

negligence under the laws of the State where the acts occurred.” Rayonier, Inc. v.

United States, 352 U.S. 315, 319 (1957). Negligence, of course, is a recognized

cause of action in Oklahoma, requiring a plaintiff to show “(1) a duty owed by the

defendant to protect the plaintiff from injury, (2) a failure properly to exercise or

perform that duty, and (3) an injury to plaintiff proximately caused by the

defendant’s breach of that duty.” Akin v. M issouri Pac. R.R. Co., 977 P.2d 1040,

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1054 (Okla. 1998).

As noted, M r. Persaud first claims that the United States should be held

liable because its employee, the unknown release and delivery officer, failed to

restrain M r. Persaud’s ankles with flexicuffs during transport. M r. Persaud

argues that, at the time of transport, there existed a medical directive requesting

that prison personnel use flexicuffs on his ankles, and that the release and

delivery officer was negligent in denying “reasonable requests to follow

medically directed conduct.” R. Doc. 1 at 10. While M r. Persaud is correct that,

at one time, there existed a M edical Report of Duty Status (“Report”) that

requested prison officials to use flexicuffs, that Report expired on December 3,

2003. See R. Doc. 39 Ex. 2 at 25. The existence of that Report demonstrates that

M r. Persaud was more than capable of informing medical personnel as to his

ankle pain and that, when appropriate, the staff would recommend the use of

flexicuffs. No other report in M r. Persaud’s medical file, however, requests that

flexicuffs be used. See id. at 26-32. In fact, the form filled out exclusively for

the purpose of M r. Persaud’s transfer between FCI Elkton and FCI Schuykill

indicates no medical condition whatsoever. See id. at 31. The logical conclusion,

therefore, is that M r. Persaud failed to inform the medical staff at FCI Elkton that

he had an ankle condition or that he did indeed inform them but they either

disregarded the information or concluded that his condition was not so severe as

to merit a recommendation of flexicuffs. M r. Persaud has not brought suit,

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however, against the United States based on any purported negligence of the

medical staff at FCI Elkton. Rather, he bases his claim on the actions of an

officer involved in his transfer, but considering the lack of an unexpired

recommendation or requirement of flexicuffs in M r. Persaud’s medical files at the

time of transfer, there is no evidence that the release and delivery officer failed to

take a m edically directed action. As such, the basis for M r. Persaud’s first

negligence claim against the United States fails.

M r. Persaud also asserts a negligence claim against the United States based

on an alleged failure of the medical staff at FTC OKC to properly treat his ankle

wounds. In Oklahoma, the elements of a medical malpractice claim are identical

to those in any other negligence claim. See Roberson v. Jeffrey M . W altner,

M .D., Inc., 108 P.3d 567, 569 (Okla. Civ. App. 2005). Additionally, “in all but

the extraordinary medical malpractice case, the plaintiff has the burden of

producing expert testimony to support a prima facie case of negligence.” Id.

This is not an “extraordinary medical malpractice case,” and because M r. Persaud

has failed to present any expert evidence, his second basis for a negligence claim

against the United States similarly fails. See Hill v. SmithKline Beecham Corp.,

393 F.3d 1111, 1117 (10th Cir. 2004) (concluding that “the Colorado review

statute is applicable to professional negligence claims brought against the United

States under the FTCA” and dismissing the plaintiff’s FTCA claim for failure to

file a certificate of review).

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V. M r. Persaud’s M otion for Sanctions

M r. Persaud argues that the district court erred in failing to sanction

defendants as a result of their alleged failure to turn over certain requested

documents. W e review for an abuse of discretion the district court’s ruling

rejecting M r. Persaud’s motion for sanctions. See, e.g., Augustine v. United

States, 810 F.2d 991, 996 (10th Cir. 1987) (“The refusal to impose sanctions is

solely within the discretion of the trial court, to be reversed only when that

discretion is abused.”). It appears that M r. Persaud’s primary basis for sanctions

is defendants’ purported failure to turn over an expired “Duty Status Report”

along with “all documents regarding [his] transfer to [FCI] Schuykill . . . .” Aplt.

Br. at 21-22. M r. Persaud, however, was given a copy of a special report,

compiled specifically for this litigation by the Bureau of Prisons, which contains

numerous medical records relating to M r. Persaud’s transfer to FCI Schuykill and

his subsequent medical care. Among the medical records contained within the

special report was the expired M edical Duty Status Report. See R. Doc. 39 Ex. 2

at 25. M r. Persaud also fails to indicate w hat documents relating to his transfer to

FCI Schuykill defendants have failed to hand over. Thus, the district court did

not abuse its discretion in denying M r. Persaud’s motion for sanctions.

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 AFFIRM ED. W e grant M r. Persaud IFP status, and remind him of his

continuing obligation to make partial payments until the filing fee is paid.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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