Duffield v. Jackson

FILED
United States Court of Appeals
Tenth Circuit

November 4, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESSIE D. DUFFIELD,

Plaintiff-Appellant,
v. No. 08-6002
MICHAEL JACKSON, M.D., Medical
Director; JEFF TROUTT, D.O., Chief
Medical Officer; KATRYNA FRECH,
R.N., Correctional Health Services
Administrator; ROY ARIAN, P.A.C.,
Physician’s Assistant and JOHN DOE,
Physicians and Staff, OU Medical
Center,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:07-CV-00090-R)

Submitted on the briefs: *

Jessie D. Duffield, Pro Se, Plaintiff-Appellant.

Jill Tsiakilos, Assistant Attorney General, Oklahoma City, OK for Defendants-
Appellees.

*
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.
Before TACHA, KELLY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Plaintiff Jessie D. Duffield, proceeding pro se, brought a 42 U.S.C. § 1983

suit against several members of the medical staff at the James Crabtree

Correctional Center (“JCCC”) in Helena, Oklahoma, claiming that they violated

his Eighth Amendment right to be free from cruel and unusual punishment by

showing deliberate indifference to his medical condition. After referring the case

to a magistrate judge who issued a report and recommendation, the district court

dismissed Mr. Duffield’s claim against some defendants and granted summary

judgment in favor of others. Mr. Duffield appeals these dismissals and grants of

summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Mr. Duffield, who has been an inmate in the custody of the Oklahoma

Department of Corrections since February 26, 1999, was transferred to the JCCC

on November 17, 2005. Soon after his transfer he began complaining of hip and

lower back pain, and later he also complained of an ear infection. He sought

medical attention for both ailments, and a series of examinations and treatments

by JCCC physicians followed for the next year. Though he received treatment,

Mr. Duffield alleges that he has not been treated in a “humane manner,”

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Complaint at 2, because the medical staff has failed to provide him the treatment

and medication necessary to relieve the pain from his hip and lower back, has not

sent him to an outside specialist who might prescribe a more effective course of

treatment, and has provided such cursory treatment of his ear as to amount to

“deliberate indifference.” Id. Mr. Duffield sued Dr. Michael Jackson, the

medical director of the JCCC; Dr. Jeff Troutt, a JCCC doctor who attended to Mr.

Duffield; Nurse Katryna Frech, an administrator who facilitated Mr. Duffield’s

medical requests; Roy Arian, a Physician’s Assistant who attended to Mr.

Duffield; and John Doe, the physicians and staff at the Oklahoma University

Medical Center, where Mr. Duffield had a consultation with an ear specialist.

The district court referred Mr. Duffield’s claim to a magistrate judge for

preliminary review pursuant to 28 U.S.C. § 636(b)(1)(B). On October 30, 2007,

the magistrate judge issued a Report and Recommendation in which he

recommended that the defendants’ motions for dismissal and motions for

summary judgment be granted. Specifically, he recommended that the claims

against Dr. Jackson, Nurse Frech, and John Doe be dismissed because Mr.

Duffield had failed to allege that any of them was personally involved in the

alleged deliberate indifference, and he recommended summary judgment for Mr.

Arian and Dr. Troutt because Mr. Duffield had failed to produce evidence

showing a genuine issue of material fact that either men had exhibited deliberate

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indifference. He also denied without prejudice Mr. Duffield’s request for limited

discovery for service and for appointment of counsel.

The magistrate judge’s Report and Recommendation ended with an explicit

message to Mr. Duffield that advised him of his right to object to the report and

the consequences of failing to do so:

The Plaintiff is advised of his right to file an objection to this Report
and Recommendation with the Clerk of this Court by November 19,
2007, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1.
The Plaintiff is further advised that failure to make timely objection
to this Report and Recommendation waives his right to appellate
review of both factual and legal questions contained herein. Moore
v. United States, 950 F.2d 656 (10th Cir. 1991).

Report and Recommendation at 35. The November 19, 2007 deadline came and

went without any objection from Mr. Duffield. On November 27, 2007, the

district court entered an order that adopted the magistrate judge’s report and

recommendation in its entirety. Three days later, on November 30, the court

received an undated letter from Mr. Duffield in which he disputed some of the

report’s factual findings and claimed that the Department of Corrections no longer

had legal aides who could assist him. R. at 24. On December 11, Mr. Duffield

filed a motion for a thirty-day extension in which to object to the Report and

Recommendation. The district court denied his request, citing the fact that “the

deadline for objection passed without a request for extension and . . . Plaintiff

was not diligent in seeking an extension.” Order of December 12, 2007. Mr.

Duffield filed an objection to the denial of an extension on December 19, 2007,

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which the district court struck as repetitive on December 21. Mr. Duffield now

appeals the final order, the order denying his extension of time, and the order

striking his objection to the order denying an extension of time.

II. Analysis

A. Waiver of Appellate Review

Mr. Duffield disputes the factual findings recommended by the magistrate

judge and adopted by the district court, arguing that there is a genuine issue of

material fact as to whether the behavior of each defendant rose to the level of

deliberate indifference to his medical conditions. The record unequivocally

shows, however, that Mr. Duffield failed to timely object to the magistrate’s

report. “[W]e have adopted a firm waiver rule when a party fails to object to the

findings and recommendations of the magistrate.” Moore v. United States, 950

F.2d 656, 659 (10th Cir. 1991). The failure to timely object to a magistrate’s

recommendations “waives appellate review of both factual and legal questions.”

Id. There are two exceptions when the firm waiver rule does not apply: “when (1)

a pro se litigant has not been informed of the time period for objecting and the

consequences of failing to object, or when (2) the ‘interests of justice’ require

review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005);

Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996). Neither exception

applies to Mr. Duffield’s case.

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 Though Mr. Duffield is a pro se litigant, the magistrate judge was careful to

inform him of both the time period for objecting and the consequences of failing

to object, which we have held is sufficient. See, e.g. Wardell v. Maggard, 470

F.3d 954, 958 (10th Cir. 2006); Morales-Fernandez, 418 F.3d at 1119. The report

“stated in clear English,” id. at 1119, that Mr. Duffield had until November 19 to

object and that failure to do so would waive his right to appellate review of all

factual and legal questions. Report and Recommendation at 35. Thus, he cannot

avail himself of the first exception to the waiver rule.

We are also unpersuaded that the “interests of justice” exception demands

that we overlook the waiver rule in Mr. Duffield’s case. Although “interests of

justice” is “a rather elusive concept,” Morales-Fernandez, 418 F.3d at 1120, we

have considered factors such as “a pro se litigant’s effort to comply, the force and

plausibility of the explanation for his failure to comply, and the importance of the

issues raised.” Id. Mr. Duffield does not claim to have been unaware of the

filing deadline, nor does he claim to have attempted to comply with it. The fault

rests with him alone. The only explanation he offers is that the law clerks who

had been assisting the inmates at his facility were transferred to another facility.

While we appreciate the difficulties of proceeding pro se, Mr. Duffield could have

at the least made the factual challenges that he eventually made a week after the

deadline had expired, especially as he presumably made the objections at that

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time without assistance from legal professionals. He also could have requested an

extension. He did neither of these things.

When we consider whether the importance of the issues raised might trigger

the “interests of justice” exception, we have said that, “[i]n many respects, the

interests of justice analysis we have developed, which expressly includes review

of a litigant’s unobjected-to substantive claims on the merits, is similar to

reviewing for plain error.” Id. To show plain error, Mr. Duffield would have to

show “(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005).

We cannot say that the decision in this case to grant the defendants’

motions to dismiss and motions for summary judgment were plain error. For a

prisoner to show that his lack of medical attention violated his Eight Amendment

right to be free from cruel and unusual punishment, he must show “unnecessary

and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104 (1976)

(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). A prison doctor’s

“negligent diagnosis or treatment of a medical condition do[es] not constitute a

medical wrong under the Eighth Amendment,” Ramos v. Lamm, 639 F.2d 559,

575 (10th Cir. 1980), as “[m]edical malpractice does not become a constitutional

violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106.

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Furthermore, “[i]ndividual liability under § 1983 must be based on personal

involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d

1416, 1423 (10th Cir. 1997). This means that Mr. Duffield must show not only

that his medical care rose to the level of “unnecessary and wanton,” Estelle, 429

U.S. at 104, but also that there is an “affirmative link” between each defendant

and the constitutional deprivation. Green v. Branson, 108 F.3d 1296, 1302 (10th

Cir. 1997) (quoting Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)).

The magistrate identified ample undisputed evidence of medical attention

that the JCCC staff gave to Mr. Duffield. He received repeated examinations

from Dr. Troutt and Mr. Arian, underwent lab-work and x-rays, was prescribed

several different medicines, and saw an outside specialist for his ear infection.

Mr. Duffield disagrees with some of the diagnoses and treatments and argues that

they did not relieve the pain. Whether the JCCC staff was medically negligent is

not the question, though; Mr. Duffield did not file a medical malpractice claim, he

filed a § 1983 claim alleging cruel and unusual punishment.

Mr. Duffield also points to specific errors in the magistrate judge’s

findings. He argues that the delay in sending him to the ear specialist, the failure

to send him for a repeat examination by that specialist, and the failure to ever

send him to an orthopedic specialist all show deliberate indifference. However,

the “contention that he was denied treatment by a specialist is . . . insufficient to

establish a constitutional violation.” Ledoux v. Davies, 961 F.2d 1536, 1537

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(10th Cir. 1992). The decision that a patient’s condition requires a specialist is a

decision about the patient’s course of treatment, and “negligent diagnosis or

treatment of a medical condition do[es] not constitute a medical wrong under the

Eighth Amendment.” Ramos, 639 F.2d at 575. We cannot say that the magistrate

judge committed plain error in finding that the JCCC’s failure to consult more

with outside specialists did not amount to deliberate indifference.

Mr. Duffield also contests the factual findings by arguing that the

defendants lied about providing him certain treatments—specifically, Rocephin

injections for his ear. The magistrate judge considered Mr. Duffield’s allegation

of lying, however, and determined that the records of these injections in the

medical charts overwhelmed Mr. Duffield’s claim that he could not remember

receiving the injections. Report at 32. He also found that even if Mr. Duffield

had never received the injections, it would be immaterial to showing deliberate

indifference, as he produced no evidence that the doctors knew he was not

receiving the prescribed treatment. Id. Again, we cannot say that this finding

was plain error.

Finally, we cannot say that it was plain error to dismiss the claims against

Dr. Jackson, Nurse Frech, and John Doe because Mr. Duffield had failed to allege

personal participation in the deprivation of medical care. A § 1983 claim requires

an “affirmative link,” Green, 108 F.3d at 1302, between the defendant and the

constitutional violation, and it was not plain error to find that Mr. Duffield failed

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to allege affirmative links for these three defendants. Dr. Jackson supervised the

JCCC medical operation, but supervisor status is not sufficient to create § 1983

liability. Id. Nor can we say that the magistrate plainly erred when he found that

Mr. Duffield’s suspicions that Dr. Jackson promulgated an unwritten policy

against referring inmates to specialists and following specialists’ advice were

anything more than speculative, especially since Mr. Duffield did receive a

specialist consult. See Report at 7–9. Nurse Frech facilitated Mr. Duffield’s

various requests for medical services, and the finding that she lacked an

affirmative link with his diagnosis and treatment because she simply directed Mr.

Duffield to the proper procedures for filing his requests was also not plain error.

Id. at 9–11. John Doe, the staff and physicians at the Oklahoma University

Medical Center, treated Mr. Duffield when he came for a specialist consult, but

his allegation that their examination was cursory does not sufficiently allege

deliberate indifference rather than mere medical malpractice. Id. at 11–12.

Therefore, we cannot say that it was plain error to dismiss Mr. Duffield’s claims

against these three defendants.

B. Denial of Motion for Extension

Mr. Duffield’s argument that the district court erred by denying his motion

for a thirty-day extension in which to object to the magistrate judge’s Report and

Recommendation, which would thereby enable him to preserve appellate review

of the issues, also fails. Mr. Duffield did not file his motion until December 7,

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2007, several weeks after the November 19 deadline to object had elapsed. Had

he filed a more timely notice for extension, he perhaps would have received it,

but we find no abuse of discretion by the district court in denying his untimely

motion for an extension.

III. Conclusion

Accordingly, we AFFIRM the district court’s final order, order denying an

extension of time, and order striking the objection to the order denying an

extension of time. We DENY his motion to supplement the record on appeal.

Mr. Duffield’s motion to proceed in forma pauperis is GRANTED, and we

remind Mr. Duffield that he is obligated to continue making partial payments

until the entire fee has been paid.

Entered for the Court,

Michael W. McConnell
Circuit Judge

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