FILED
United States Court of Appeals
Tenth Circuit
June 9, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
CLARENCE E. GRISSOM, JR.,
Plaintiff-Appellant,
v. No. 10-3245
(D.C. No. 5:09-CV-03128-SAC)
RAY ROBERTS, Warden, El Dorado (D. Kan.)
Correctional Facility; DANIEL A.
JACKSON, CSI, El Dorado
Correctional Facility; (FNU) BOKOR,
A.R.N.P., Correct Care Solutions, El
Dorado Correctional Facility;
GEORGE MCNICKLE, M.D., El
Dorado Correctional Facility; DON
THOMPKINS, El Dorado Correctional
Facility; R. SHERMAN, CSII, El
Dorado Correctional Facility; C.
CASTLMAN, COII, El Dorado
Correctional Facility,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Clarence E. Grissom, Jr., a Kansas state prisoner proceeding pro se, appeals
from the dismissal of his civil rights action. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Mr. Grissom filed an action under 42 U.S.C. § 1983. The district court
screened his form complaint and numerous other filings under 28 U.S.C. § 1915A
and entered a screening order. In that order, the district court identified three
claims in his form complaint: (1) use of excessive force on August 27, 2008, at
the El Dorado Correctional Facility; (2) denial of medical care for injuries
sustained during that incident; and (3) creation of a false disciplinary report to
cover up the incident.
These claims were based on the following allegations. Defendants Daniel
A. Jackson and C. Castlman, both correctional officers, told Mr. Grissom to come
to his cell door to be restrained while they removed his wheelchair. Mr. Grissom
resisted the order, responded obscenely, and threw water at Officer Jackson.
Officer Jackson, who knew that Mr. Grissom suffers from chronic obstructive
pulmonary disease, used pepper spray on him. Officer Jackson then called a
“Condition 30,” which resulted in the arrival of a team of correctional officers.
Unidentified members of that team hit Mr. Grissom with an electric shield while
he was in his wheelchair, then forcibly removed him from his cell and carried him
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to the shower, where they held him under hot water. He sustained a broken nose
and facial bruises.
Thereafter, Mr. Grissom was laid down, his underwear was cut off, and he
was rolled onto his side so that defendant Bokor, an advanced registered nurse
practitioner (A.R.N.P.), could administer an albuterol inhaler. A.R.N.P. Bokor
looked at his face but provided no treatment. The next day, both of his eyes were
black and blue, and his right eye was swollen shut. He requested medical
treatment but was denied. Later, Officer Jackson, Officer Castlman, and A.R.N.P.
Bokor created an allegedly false disciplinary report to justify their actions,
charging Mr. Grissom with battery and disobeying orders. Mr. Grissom was
found guilty and given sixty days of disciplinary segregation, forty dollars in
fines, and ninety days “‘L.G.T.’” R. at 167. 1 Based on these allegations,
Mr. Grissom requested damages and the termination of defendants’ employment.
In its screening analysis, the district court first concluded that it lacked
power to order that any defendants be fired. The court also determined that
Mr. Grissom’s request that he be permitted to use his wheelchair while in
segregation, which was set forth in an attachment to his form complaint, was
improperly joined, identified no named defendant, and stated no supporting facts.
The court further concluded that for the same reasons, still other claims, scattered
throughout the attachments to his complaint and other filings, were improperly
1
Apparently, “L.G.T.” means “loss of good time.”
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raised. The court informed Mr. Grissom that it would not consider any claims
referred to only in his attachments, and that instead, he must file an amended
complaint in order to add claims or defendants; motions, exhibits, or other papers
were not proper for that purpose. The court also provided him an overview of
joinder under the Federal Rules of Civil Procedure.
The district court then dismissed two defendants, Correct Care Solutions
and the El Dorado Minimum Clinic, because neither was a “person” for § 1983
purposes, a necessary element of a § 1983 claim. Id. at 176 (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 66, 71 (1989)). Further, the court pointed out
that Mr. Grissom failed to adequately identify the personal participation of
defendants Roberts, McNickle, Thompkins, or Sherman. See R. at 176 (citing,
inter alia, Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)). Thus, the
court gave Mr. Grissom an opportunity to file a supplemental complaint alleging
the necessary participation.
The district court also instructed Mr. Grissom that a supplemental
complaint was necessary to correct other shortcomings in his pleadings. As to his
excessive force claim, the court reasoned that Mr. Grissom’s own statements and
exhibits showed that “he was combative, disruptive, and very disrespectful”; he
refused to obey orders”; he “had a history of battering or attempting to batter
correctional officers”; and he “refused to be restrained and had thrown a cup of
water on Jackson.” R. at 179-80. “Under such circumstances,” the court
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concluded, “the use of some physical force such as pepper spray can hardly be
considered repugnant to the conscience of mankind.” Id. at 180. 1 Moreover, the
court noted that Mr. Grissom had not alleged severe pain or lasting injury as a
result of the pepper spray, as required under Sampley v. Ruettgers, 704 F.2d 491,
495 (10th Cir. 1983). Therefore, the court concluded, Mr. Grissom had not
advanced sufficient factual allegations to show an Eighth Amendment violation
based on Officer Jackson’s use of pepper spray or his call for a Condition 30.
Turning to the physical injuries Mr. Grissom alleged were caused by the
forced removal from his cell, the district court observed that he had not described
acts by any specific defendant that caused those injuries. Rather, he alleged he
was beaten by a team of correctional officers. Therefore, the court permitted him
to file a supplemental complaint to provide additional factual allegations of
personal participation by named defendants.
The district court next concluded that Mr. Grissom’s allegations did not
support his claim that he was denied medical treatment in violation of the Eighth
Amendment. Mr. Grissom’s filings indicated that A.R.N.P. Bokor immediately
gave him an albuterol inhaler and examined his broken nose and facial injuries.
Mr. Grissom did “not describe any additional treatment as having been prescribed
or obviously necessary for his broken nose or facial abrasions” or “any
1
The district court apparently drew this standard from a line of Supreme
Court cases discussed in Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
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‘substantial harm’ suffered as a result of any delay in treating his broken nose or
facial injuries.” Id. at 184 (applying standards set out in Ramos v. Lamm,
639 F.2d 559, 575 (10th Cir. 1980), and Garrett v. Stratman, 254 F.3d 946, 950
(10th Cir. 2001)). Nor had he identified the officer who denied his request for
medical treatment the next day as one of the named defendants. Again, the
district court instructed Mr. Grissom that he could file a supplemental complaint
to remedy these deficiencies.
The district court further concluded that Mr. Grissom’s claim that Officers
Jackson and Castlman and A.R.N.P. Bokor filed a false disciplinary report could
be raised only in a writ of habeas corpus because it “involve[d] good time and the
possibility of entitlement to a speedier release.” R. at 185 (citing Preiser v.
Rodriguez, 411 U.S. 475 (1973)). The court also reasoned that Mr. Grissom could
not recover damages on this claim unless he could show that his conviction of the
charged offenses was “‘invalidated.’” R. at 186 (quoting Heck v. Humphrey,
512 U.S. 477, 487 (1994), and citing Edwards v. Balisok, 520 U.S. 641 (1997),
for its extension of Heck to loss of good time credit in prison setting)). 2
Based on its analysis, the district court gave Mr. Grissom thirty days in
which to file a supplemental complaint. Mr. Grissom filed a timely supplement,
2
Mr. Grissom also filed two motions requesting an injunction or a temporary
restraining order with regard to the conditions of his later confinement at a
different correctional facility. The court denied the motions on the ground that
neither one provided a sufficient factual or legal basis for such relief.
Mr. Grissom has not challenged these denials on appeal.
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and he also filed numerous other papers outside the allotted time. The district
court reviewed all of these filings and concluded that Mr. Grissom had not
remedied the deficiencies in his complaint and had ignored most of the directions
in the court’s screening order. The court found no mention of defendants
McNickle, Thompkins, or Sherman in any of the additional filings, and no
allegation that defendant Roberts had personally participated in any of the events
underlying the three claims set out in the initial form complaint. Thus, the court
dismissed the claims as to these defendants. Similarly, the court could find no
specification of “which named defendant, if any, took acts that actually caused
the injuries to his nose and face during [the] forced [cell] move.” R. at 490-91.
Nor did the court find any additional allegations showing “either that [Officer]
Jackson used more force than was reasonably necessary under the[] circumstances
or that [he] applied the pepper spray and called a Condition 30 other than in a
‘good faith effort’ to restore institutional order.” Id. at 491. 3 Accordingly, the
district court dismissed the excessive force claim without prejudice for failure to
state a claim on which relief may be granted.
The district court next concluded that Mr. Grissom failed to remedy the
deficiencies in his claim that he was denied medical treatment. Although he
appeared to claim that Officer Jackson had denied his request to see A.R.N.P.
3
The district court apparently was relying on Sampley, 704 F.2d at 495,
which it had cited in its screening order, see R. at 178.
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Bokor, he also stated that he had another inmate contact A.R.N.P. Bokor, who
said there was nothing she could do “‘to fix [his] broken nose because it ha[d]
been broken twice before and it wouldn’t do any good to fix it.’” Id. at 493
(quoting Supplement to Complaint, id. at 192). The court determined that this
concession, read in light of Mr. Grissom’s continued failure “to allege that any
particular treatment was prescribed or medically necessary for his broken nose
beyond the immediate examination that was provided,” id. at 493, indicated
nothing more than a difference of opinion on a matter of medical judgment, which
is not actionable under the Eighth Amendment, see Estelle v. Gamble, 429 U.S.
97, 106-07 (1976). Consequently, Officer Jackson’s alleged denial of
Mr. Grissom’s request for treatment also failed to state a claim under the Eighth
Amendment. Therefore, the district court dismissed the claim of denial of
medical treatment.
The court next considered a multitude of claims described in the numerous
filings Mr. Grissom submitted in response to the screening order, concluding that
none of them were included in the original complaint, none had been added by a
proper amendment, and none were properly joined because Mr. Grissom did not
show they were related to the incident underlying the claims in his original
complaint. Accordingly, the court dismissed all those claims without prejudice.
This appeal followed.
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II. DISCUSSION
We review de novo the district court’s dismissal for failure to state a claim.
Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). “We review the complaint
for plausibility; that is, to determine whether the complaint includes enough facts
to state a claim to relief that is plausible on its face.” Id. (quotation omitted).
In his appellate brief, Mr. Grissom provides a selective restatement of his
factual allegations, but the full extent of his legal argument is that he thought
what he did “was fair,” and he disagrees with “the way [he] was judged for not
understanding the procedure.” Aplt. Br. at 4. These limited “arguments” are
insufficient to merit appellate review, even taking into account that Mr. Grissom
is not represented by an attorney. See Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840-41 (10th Cir. 2005) (concluding that pro se appellant forfeited
right to appellate review of dismissal of complaint because he did not present any
reasoned arguments supported by record citations or legal authority).
Nonetheless, we have exercised our discretion to review the record and the
applicable law, see id. at 841, and we see no error in the district court’s handling
of this case. The court is commended for its considerable patience in providing
Mr. Grissom a detailed explanation, in plain English, of the deficiencies in his
complaint, and in providing him an opportunity to cure those deficiencies.
Accordingly, we AFFIRM the judgment of the district court for
substantially the same reasons set out in its screening order and its dismissal
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order. Mr. Grissom’s motion to proceed on appeal without prepayment of fees is
granted, and we remind him that he is obligated to continue making partial
payments until the entire fee has been paid.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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