FILED
United States Court of Appeals
Tenth Circuit
December 4, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MARVIN K. SHUE,
Plaintiff - Appellant,
v.
No. 13-8064
(D.C. No. 2:11-CV-00307-SWS)
LARAMIE COUNTY DETENTION
(D. Wyo.)
CENTER; SERGEANT PORTER,
Laramie County Detention Center
Deputy Sheriff, in his official
capacity,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
*
Having examined the briefs and appellate record, this panel has
decided 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This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Marvin Shue, proceeding pro se, 1 appeals from the district court’s dismissal
of his 42 U.S.C. § 1983 action for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6). Mr. Shue additionally seeks leave to proceed in
forma pauperis (“IFP”) in this appeal. For the reasons that follow, we affirm the
district court’s order dismissing Mr. Shue’s action and deny him IFP status.
I
At all material times, Mr. Shue was incarcerated in pretrial detention at the
Laramie County Detention Center (“LCDC”) in Wyoming. Prior to his
incarceration at the LCDC, Mr. Shue had suffered a leg injury and undergone
surgery. Following his incarceration, he was given a post-surgery evaluation by
medical professionals, who determined that Mr. Shue should be restricted from all
physical activity and housed on a low-level floor and in a low-level bunk.
Mr. Shue suffered three injuries to his leg during his pretrial detention.
First, on the day of a scheduled court appearance, LCDC personnel left a pair of
leg restraints on the floor of a hallway, while instructing prisoners to line up
against a wall. Mr. Shue tripped over the restraints while obeying the order to
line up, causing injuries to his neck, back, and previously-injured left leg.
Second, following this hallway fall, the LCDC officers delayed getting Mr.
1
Though he was represented for much of the district court proceedings
by appointed counsel, Mr. Shue is litigating this appeal pro se. We liberally
construe his pro se filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
2
Shue medical treatment until after his court appearance, though he was obviously
limping. And, third, LCDC officers moved Mr. Shue to an upper-level floor a
few weeks after his injury and stated that they did not care about his medical
restriction to a low-level bunk and a low-level floor. While complying with the
move, Mr. Shue fell and further injured his left leg. Mr. Shue was ordered back
to a low-level cell the next morning. That evening, Sergeant Porter 2 apologized
to Mr. Shue, admitted that there was no reason for the cell move, and explained
that the move was a mistake by LCDC personnel.
Mr. Shue filed a § 1983 prisoner civil-rights complaint naming the LCDC
and Sergeant Porter—in his official capacity—as defendants. The district court
subsequently entered an order granting Mr. Shue’s motion for appointment of
counsel. Through counsel, Mr. Shue sought, and was granted leave, to file an
amended complaint. The amended complaint is the operative complaint for
purposes of this appeal.
Mr. Shue’s amended complaint named the LCDC and Sergeant Porter—in
his official capacity—as defendants, and contained a single claim alleging
deliberate indifference to Mr. Shue’s serious medical needs in violation of the
2
The district court and Mr. Shue refer to Mr. Porter as “Sergeant.” On
the other hand, in their answer brief, Appellees indicate that Mr. Porter actually is
a corporal. Consistent with our standard of review, discussed in Part II.A.1,
infra, we accept Mr. Shue’s version of the facts, and thus refer to Mr. Porter as
“Sergeant.” However, Mr. Porter’s precise rank is actually wholly immaterial to
our resolution of this appeal.
3
Eighth Amendment. The defendants filed a motion to dismiss Mr. Shue’s
amended complaint for failure to state a claim upon which relief could be granted.
The district court granted this motion and dismissed Mr. Shue’s claims with
prejudice. Mr. Shue now appeals.
II
A
1
Mr. Shue urges us to overturn the district court’s dismissal of his action
under Federal Rule of Civil Procedure 12(b)(6). “We review de novo the grant of
a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Gee v. Pacheco,
627 F.3d 1178, 1183 (10th Cir. 2010); accord ClearOne Commc’ns, Inc. v. Biamp
Sys., 653 F.3d 1163, 1171 (10th Cir. 2011). In doing so, we “accept as true all
well-pleaded facts, as distinguished from conclusory allegations, and view those
facts in the light most favorable to the nonmoving party.” Moya v.
Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006) (internal quotation marks
omitted).
2
Proceeding under 42 U.S.C. § 1983, Mr. Shue claims deprivation of his
constitutional right under the Eighth Amendment to be free from deliberate
indifference to his serious medical needs while incarcerated. Mr. Shue’s suit
against the LCDC—a local governmental entity—is analyzed under the rubric of
4
municipal liability. And, we have recognized that “[s]uing individual defendants
in their official capacities . . . is essentially another way of pleading an action
against the county or municipality they represent.” Porro v. Barnes, 624 F.3d
1322, 1328 (10th Cir. 2010).
As relevant here, a necessary condition for holding a municipality liable
under § 1983 is the establishment of a constitutional violation by its officers or
agents. See, e.g., Trigalet v. City of Tulsa, 239 F.3d 1150, 1155–56 (10th Cir.
2001) (“[E]ven if it could be said that Tulsa’s policies, training, and supervision
were unconstitutional, the City cannot be held liable where, as here, the officers
did not commit a constitutional violation.”); accord Becker v. Bateman, 709 F.3d
1019, 1025 (10th Cir. 2013); see also Martinez v. Beggs, 563 F.3d 1082, 1091
(10th Cir. 2009) (“A county . . . cannot be held ‘liable for constitutional
violations when there was no underlying constitutional violation by any of its
officers.’” (quoting Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317–18 (10th
Cir. 2002))).
But the commission of a constitutional violation by an officer or agent is
not sufficient. In suits against municipal entities, “[s]ection 1983 . . . rejects the
tort principle of respondeat superior and does not subject [such entities] to
vicarious liability for the acts of their employees.” Milligan-Hitt v. Bd. of Trs. of
Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219, 1223 (10th Cir. 2008); see City of
Canton v. Harris, 489 U.S. 378, 385 (1989) (“[A] municipality can be found
5
liable under § 1983 only where the municipality itself causes the constitutional
violation at issue. Respondeat superior or vicarious liability will not attach under
§ 1983.”). In order for a municipality to be held liable under § 1983 for a
constitutional violation, the plaintiff must be able to establish “official policy as
the moving force of the constitutional violation.” Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978); accord Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,
520 U.S. 397, 405 (1997); City of Canton, 489 U.S. at 389. Accordingly, when
the defendant in a § 1983 action is a municipal entity such as a city or county,
“[i]t is only when the execution of the government’s policy or custom . . . inflicts
the injury that the municipality may be held liable.” City of Canton, 489 U.S. at
385 (omission in original) (quoting Springfield v. Kibbe, 480 U.S. 257, 267
(1987) (O’Connor, J., dissenting)) (internal quotation marks omitted).
“[W]here the policy relied upon is not itself unconstitutional, considerably
more proof than the single incident will be necessary in every case to establish
both the requisite fault on the part of the municipality, and the causal connection
between the ‘policy’ and the constitutional deprivation.” City of Okla. City v.
Tuttle, 471 U.S. 808, 824 (1985) (footnote omitted); see Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under [Monell],
unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal
6
policymaker.” (citation omitted)); cf. Olsen, 312 F.3d at 1318 (“Although a single
incident generally will not give rise to liability, deliberate indifference may be
found absent a pattern of unconstitutional behavior if a violation of federal rights
is a highly predictable or plainly obvious consequence of a municipality’s
action.” (citation omitted) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307
(10th Cir. 1999)) (internal quotation marks omitted)).
B
“A prison official’s deliberate indifference to an inmate’s serious medical
needs is a violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Although the Eighth Amendment’s
protections do not directly apply to pretrial detainees, see Bell v. Wolfish, 441
U.S. 520, 535 n.16 (1979), under the Fourteenth Amendment, pretrial
detainees—like Mr. Shue—are likewise “‘entitled to the degree of protection
against denial of medical attention which applies to convicted inmates’ under the
Eighth Amendment,” Martinez, 563 F.3d at 1088 (quoting Garcia v. Salt Lake
Cnty., 768 F.2d 303, 307 (10th Cir. 1985)); see Blackmon v. Sutton, 734 F.3d
1237, 1244 (10th Cir. 2013) (“[D]etention center officials surely owe pretrial
detainees like Mr. Blackmon at least the same standard of care prison officials
owe convicted inmates.”); Barrie v. Grand Cnty., 119 F.3d 862, 868 (10th Cir.
1997) (“The duty to provide access to medical care extends to pretrial detainees
7
as well.” (internal quotation marks omitted)).
The Estelle deliberate-indifference standard “contains both an objective and
a subjective component.” Blackmon, 734 F.3d at 1244.
Objectively, the patient’s medical needs must be “so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.” Ramos v. Lamm, 639 F.2d 559, 575 (10th
Cir. 1980). Subjectively, the defendant-official must “know[ ] of
and disregard[ ] an excessive risk to inmate health or safety.”
Farmer [v. Brennan, 511 U.S. 825, 837 (1994)]. This subjective
standard lies “somewhere between the poles of negligence at the
one end and purpose . . . at the other.” Id. at 836. The Supreme
Court has analogized it to criminal recklessness, to the conscious
disregard of a “substantial risk of serious harm.” Id. at 836–38.
Blackmon, 734 F.3d at 1244–45 (first and second alterations in original)
(omission in original); see Mata, 427 F.3d at 751 (discussing objective and
subjective components of deliberate indifference to medical needs under Estelle);
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (same). Where the
plaintiff’s deliberate-indifference claim is premised on a delay in medical care,
such delay “only constitutes an Eighth Amendment violation where the plaintiff
can show the delay resulted in substantial harm.” Mata, 427 F.3d at 751 (quoting
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)) (internal quotation
marks omitted). This “substantial harm requirement ‘may be satisfied by lifelong
handicap, permanent loss, or considerable pain.’” Id. (quoting Garrett v.
Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
III
8
A
The district court found that Mr. Shue failed to state a claim on which relief
could be granted for each of the three incidents alleged in the amended complaint
as constituting deliberate indifference. Having reviewed Mr. Shue’s amended
complaint de novo, we affirm the district court’s dismissal order. In particular, as
to the first two incidents, it is patent that Mr. Shue failed to plead cognizable
claims of deliberate indifference. And, absent the establishment of a
constitutional violation by LCDC officers, there can be no basis for municipal
liability. As to the third, relating to Mr. Shue’s movement to an upper-level floor,
even assuming arguendo that he has adequately alleged that certain LCDC
officials acted with constitutionally prohibited deliberate indifference—effecting
an Eighth Amendment violation—he has utterly failed to plead that the LCDC’s
policies were the moving force of that violation.
First, regarding the leg restraints left on the floor, Mr. Shue essentially
alleges negligence on the part of LCDC employees, although the Supreme Court
and this court have made it very clear that mere negligence is insufficient to
establish deliberate indifference rising to the level of a cognizable Eighth
Amendment violation. See, e.g., Daniels v. Williams, 474 U.S. 327, 333 (1986)
(rejecting the notion that due-process “protections are triggered by lack of due
care by prison officials”); Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1286 (10th
Cir. 1999) (“[D]eliberate indifference is a stringent standard of fault. A showing
9
of simple or even heightened negligence will not suffice.” (alteration in original)
(citation omitted) (quoting Brown, 520 U.S. at 407, 410) (internal quotation marks
omitted)). Mr. Shue alleges that an LCDC officer left a leg restraint in his path
and that an officer ordered Mr. Shue to continue walking forward, without
recognizing the potential for Mr. Shue to slip and fall. Such actions reflect no
more than “ordinary lack of due care for the prisoner’s interests or safety,”
Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986))
(internal quotation marks omitted), and that is not enough.
Second, Mr. Shue’s averments concerning the LCDC officials’ delay in
getting him medical treatment following his fall on the day of his court
appearance objectively fail to evince deliberate indifference because Mr. Shue has
not alleged any resulting harm, much less “substantial harm.” Sealock, 218 F.3d
at 1210; accord Mata, 427 F.3d at 751; Garrett, 254 F.3d at 950. He has simply
alleged in conclusory fashion that the delay “constitut[ed] deliberate indifference
to [his] serious medical needs.” R., Vol. 1, at 147 (Am. Compl., filed Nov. 14,
2012). That averment is plainly insufficient.
Lastly, regarding the incident involving his relocation to an upper-level
floor, even if we assume arguendo that Mr. Shue has adequately pleaded
deliberate indifference, his averments would be insufficient to plausibly establish
the liability of LCDC and Sergeant Porter, in his official capacity. In this regard,
we conclude that the district court’s analysis of the legal import of this incident is
10
particularly persuasive and, in all material respects, we adopt it here. In
particular, like the district court, we conclude that Mr. Shue is hard-pressed to
show that the LCDC’s policies were the moving force of any constitutional
violation. Indeed, his express averments belie such a claim.
Mr. Shue has specifically alleged that Sergeant Porter told him that the
move was a mistake that should not have been allowed under the LCDC’s
policies. See id. at 145 (alleging that Sergeant Porter told Mr. Shue (1) “that he
should never have been moved at all”; (2) that “there was ‘no reason’ for any of
the moves to have occurred”; and (3) “that ‘none of it should have happened’”
and “they ‘really messed up’”). Moreover, the LCDC policies that Mr. Shue
claims were implicated by this incident—which relate to inmates’ adherence to
lawful staff orders and medical restrictions—cannot reasonably be viewed as
anything other than constitutional on their face, and Mr. Shue has not alleged that
those policies have caused repeated unconstitutional infringements.
Consequently, in step with the district court, we conclude that Mr. Shue has failed
to aver sufficient facts regarding this incident to establish “a plausible claim of
relief against the [LCDC] or its officials.” Id. at 191 (Order Granting Mot. to
Dismiss, filed June 28, 2013); see Tuttle, 471 U.S. at 824.
B
1
Although the amended complaint (filed with the assistance of counsel and
11
thus not entitled to liberal construction) named Sergeant Porter only in his official
capacity, Mr. Shue now appears to argue pro se on appeal that he intended to
name Sergeant Porter in both his individual and official capacities. See Aplt.
Opening Br. at 8 (“Appellees are being sued as an individual, and in their official
capacity . . . .”). Section 1983 suits against government officials in their
individual capacities present a host of issues that are distinct from such actions
against officials solely in their official capacities; for example, qualified
immunity is available as a defense in an individual-capacity action, but is not
available in an official-capacity action—where the suit against the individual is
essentially a suit against the municipality. See, e.g., Brown v. Montoya, 662 F.3d
1152, 1163 & n.8, 1164 (10th Cir. 2011); see also Becker, 709 F.3d at 1022
(“While Officer Bateman is entitled to assert the qualified immunity defense, the
City is not.”). This basic point underscores why it would be entirely
inappropriate for us to even consider permitting Mr. Shue to fundamentally alter
the scope of his action on appeal to include an individual-liability claim against
Sergeant Porter. Mr. Shue cannot predicate a claim for individual liability on the
express terms of his amended complaint, and any late-blooming argument on
appeal advancing such a theory is waived. See, e.g., Tele-Commc’ns, Inc. v.
Comm’r, 12 F.3d 1005, 1007 (10th Cir. 1993) (observing “[t]he general
rule . . . that an appellate court will not consider an issue raised for the first time
on appeal”).
12
2
Mr. Shue’s opening brief also could arguably be construed as making an
additional contention—viz., that it was error for the district court not to grant Mr.
Shue leave to amend his complaint a second time. See Aplt. Opening Br. at 9 (“I
believe that the court should have given me another chance to amend and remove
the appointed counsel and appoint new counsel who had experience in the civil
procedures.”). Insofar as Mr. Shue makes such an argument, we summarily reject
it because the record reveals that he never asked the district court for leave to
amend. See, e.g., Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180,
1186 (10th Cir. 1999) (“We . . . have held that normally a court need not grant
leave to amend when a party fails to file a formal motion.”); id. at 1186–87
(“Deriving a consistent approach from our case law, we conclude that a request
for leave to amend must give adequate notice to the district court and to the
opposing party of the basis of the proposed amendment before the court is
required to recognize that a motion for leave to amend is before it.”); cf. Albers v.
Bd. of Cnty. Comm’rs of Jefferson Cnty., --- F.3d ----, 2014 WL 6057216, at *6
(10th Cir. 2014) (“[A] bare request to amend in response to a motion to dismiss is
insufficient to place the court and opposing parties on notice of the plaintiff’s
request to amend and the particular grounds upon which such a request would be
based.”).
IV
13
For the reasons presented above, we AFFIRM the district court’s order
dismissing Mr. Shue’s complaint under Rule 12(b)(6). Because Mr. Shue fails to
offer any “reasoned, nonfrivolous argument on the law and facts in support of the
issues raised on appeal,” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008)
(quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997))
(internal quotation marks omitted), we also DENY Mr. Shue’s pending motion to
proceed IFP on appeal. Mr. Shue is reminded that he remains obligated to pay the
full amount of his appellate filing fee.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
14