FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 15, 2015
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Elisabeth A. Shumaker
Clerk of Court
RONALD PLUMMER,
Plaintiff - Appellant,
v. No. 15-1131
(D.C. No. 1:14-CV-01203-CMA-MJW)
LISA MCDERMOTT; DAVID ALLRED; (D. Colo.)
BRAD CINK,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
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Ronald Plummer, proceeding pro se, alleges that three officials at the federal
penitentiary in Florence, Colorado, violated his rights under the Eighth Amendment
to the United States Constitution because they provided inadequate medical care
for a hernia. The officials moved to dismiss Mr. Plummer’s complaint under
Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and the district court granted their motion.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Mr. Plummer appeals the dismissal. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
At the time of the events in question, Mr. Plummer was a prisoner at the
federal penitentiary in Florence, Colorado. He arrived at the penitentiary on
September 13, 2012. When a mid-level provider examined him at intake,
Mr. Plummer did not report any medical complaints. On October 16 he turned in a
written “sick call” request advising that he needed a hernia operation because he was
experiencing a lot of pain. Over the next three months, he turned in ten more
sick-call requests, which contained notes such as “hurting,” “in constant pain from
my hernia,” and “please give me something for the pain.” The intervals between his
requests varied from 5 to 15 days.
The prison’s first response was on November 15, when a mid-level provider
examined Mr. Plummer and recommended a consultation with a general surgeon. On
November 23 the warden advised Mr. Plummer that the Utilization Review
Committee (URC) would consider the recommendation, and on December 6 the URC
approved the recommendation. On April 5, 2013, Mr. Plummer underwent surgery to
correct the hernia. After the surgery he received pain medication and instructions on
how to care for the surgical site.
On April 28, 2014, Mr. Plummer filed a complaint in the United States District
Court for the District of Colorado, alleging Eighth Amendment violations by Lisa
McDermott (the hospital administrator at the penitentiary), Dr. David Allred (the
clinical director), and Brad Cink (a mid-level provider). He asserted generally that
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they violated his constitutional rights in that (1) the prison’s 31-day initial response
time to his request for medical aid did not meet the standards of adequate medical
care, (2) the officials’ failure to respond to his requests for medical aid resulted in
unnecessary and wanton infliction of pain, and (3) the officials’ continued use of
policies and procedures that they knew were inadequate rose to the level of deliberate
indifference. The specific alleged acts of each defendant were more limited. The
complaint alleged that Ms. McDermott “had a duty to provide humane conditions of
confinement by insuring that prisoners received adequate medical care” and that she
acted with deliberate indifference because she continued to follow the policies and
procedures in place at the prison, even after repeated complaints and incidents
showed they were inadequate. R. at 13. It alleged that Dr. Allred sat on the URC
and “personally determined that [Mr. Plummer] should see an ‘outside’ doctor for his
hernia,” yet “absolutely nothing” was done to treat him or address his pain. R. at 16.
And it alleged that Mr. Cink “ignored and failed to respond to [Mr. Plummer’s]
reported pain and medical needs” despite his requests “to be given something, i.e.
pain medication.” R. at 15.
We review de novo the district court’s dismissal of Mr. Plummer’s complaint,
accepting all well-pleaded factual allegations as true. Howard v. Waide, 534 F.3d
1227, 1242–43 (10th Cir. 2008). Because Mr. Plummer is proceeding pro se, “we
construe his pleadings liberally.” Ledbetter v. City of Topeka, 318 F.3d 1183, 1187
(10th Cir. 2003). We do not, however, “assume the role of advocate,” and we
“should dismiss claims which are supported only by vague and conclusory
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allegations.” Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992). We
make some allowances for deficiencies, such as unfamiliarity with pleading
requirements, failure to cite appropriate legal authority, and confusion of legal
theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005). But “the court cannot take on the responsibility of serving as the litigant’s
attorney in constructing arguments and searching the record.” Id. And we “will not
supply additional factual allegations to round out a plaintiff’s complaint or construct
a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170,
1173–74 (10th Cir. 1997).
We affirm. Mr. Plummer’s appellate briefs do not challenge or even mention
the district court’s dismissal of his claim against Mr. Cink on the ground that he
enjoys absolute immunity as a commissioned officer of the Public Health Service.
See Hui v. Castaneda, 559 U.S. 799, 806 (2010) (recognizing absolute immunity);
United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (failure to brief issue
waives challenge to ruling). And the claims against the other two defendants fail
because the complaint does not adequately allege that they acted with deliberate
indifference to Mr. Plummer’s condition.
Prison officials have a constitutional obligation to provide medical care for
those who are incarcerated. See Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980).
“Prison officials violate the Eighth Amendment’s prohibition against cruel and
unusual punishment when they act deliberately and indifferently to serious medical
needs of prisoners in their custody.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.
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1999). An Eighth Amendment claim has two components: “the objective prong of
sufficiently serious deprivation and the subjective prong of deliberate indifference.”
Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010). To satisfy the subjective
prong, the prisoner must establish that the prison official “knew of and disregarded
an excessive risk to inmate health or safety.” Al-Turki v. Robinson, 762 F.3d 1188,
1192 (10th Cir. 2014) (brackets and internal quotation marks omitted); see also
Farmer v. Brennan, 511 U.S. 825, 847 (1994) (the prisoner must prove the prison
official was actually aware of a substantial risk of serious harm and “fail[ed] to take
reasonable measures to abate it”).
The allegations in Mr. Plummer’s complaint were too vague and conclusory to
establish that Ms. McDermott and Dr. Allred acted with a sufficiently culpable state
of mind. A myriad of things could account for the six-month delay between
Mr. Plummer’s demand for surgery and the operation, yet his allegations are devoid
of specifics that would not only place the blame on actions by the defendants but
would also demonstrate that they acted with the requisite mens rea. Likewise,
although Mr. Plummer may be alleging that his claim is based on the denial of pain
medication, the complaint appears to attribute this denial to Mr. Cink, and it fails to
allege how Ms. McDermott or Dr. Allred acted to prevent his receipt of medication
(or so acted with deliberate indifference).
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The judgment of the district court is AFFIRMED. Mr. Plummer’s motion to
proceed on appeal without prepayment of costs or fees is GRANTED. He is
reminded of his obligation to continue making partial payments until his filing fee is
paid in full.
Entered for the Court
Harris L Hartz
Circuit Judge
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