Black v. Russell

Appellate Case: 22-6111 Document: 010110823345 Date Filed: 03/08/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 8, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
JAMES THAREHELLE BLACK,

Plaintiff - Appellant,

v. No. 22-6111
(D.C. No. 5:20-CV-01258-G)
FNU RUSSELL, LT, individual capacity; (W.D. Okla.)
JOHN DOE, LT, Segregation Supervisor,
individual capacity; JOHN DOE, Chief of
Security, individual capacity; FNU JONES,
Unit Manager, individual capacity; JANE
DOE, QHCP, individual capacity; FNU
NICHOLES, SGT, individual capacity;
FNU ROGERS, SGT, individual capacity;
JANE DOE, QHCP, individual capacity;
JOHN DOE 3, Assistant Warden,
individual capacity; FNU SMITH, Warden,
individual capacity; FNU HONAKER,
Health Care Administrator, individual
capacity; JANE DOE, (QHCP), Qualified
Health Care Provider, individual capacity;
FNU BATES, (CO), Correctional Officer,
individual capacity; FNU VALLEJO, CO,
individual capacity; FNU McCLINSEY,
CO, individual capacity; FNU HATFIELD,
SGT, Seg Supervisor, individual capacity;
FNU CAMPBELL, SGT, individual
capacity; FNU KELLER, SGT, individual
capacity,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
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_________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________

Plaintiff James Tharehelle Black, an Oklahoma state prisoner appearing pro se,

appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint on a motion for

summary judgment by the Lawton Correctional and Rehabilitation Facility (LCRF)

defendants, Lt. Russell, Officer McClinsey, FNU Vallejo, Sgt. Campbell, Sgt. Hatfield,

Sgt. Keller, and Sgt. Rogers (the LCRF Defendants), and, separately, a motion to dismiss

by William Honaker (collectively, Moving Defendants). Exercising jurisdiction under 28

U.S.C. § 1291, we AFFIRM the district court’s order.

I. BACKGROUND

A. Factual Background

On the morning of January 10, 2020, Black swallowed unknown objects in the

presence of prison staff. Black informed prison staff that he had swallowed rubber bands

with marijuana residue on them. Prison staff brought Black to the prison’s medical office

for examination and placed Black in a segregated dry cell. Approximately nine hours

later, prison staff determined that whatever Black had swallowed had passed through his

system, although Black alleges that he had not yet had a bowel movement. Black states

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.
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that he “was supposed to remain [in the dry cell] for 72 hours or until he had a bowel

movement.” ROA Vol. I at 17. Black was returned to a cell in the segregated housing

unit.

Early in the morning on January 11, 2020, a nurse at the prison asked Black to

provide a urine sample to be tested for drugs, but Black could not urinate. According to

Black, the prison medical staff refused to provide him treatment unless he first provided a

urine sample. At this point, however, Black had not told prison staff that he had actually

swallowed balloons containing methamphetamine. Later that day, Black was able to

provide a urine sample, which tested positive for methamphetamine, among other drugs.

At this time, Black was exhibiting aggressive behavior and was placed back in his

segregated cell.

On January 12, 2020, Black alleges that he was “in rage and crying for help” in his

cell. Id. at 18. Early in the morning, Black admitted that the objects which he had

swallowed the day before were two balloons containing methamphetamine. Staff

administered Narcan nasal spray to combat an overdose, along with Benadryl and Haldol.

Black was transferred by ambulance to the Comanche County Memorial Hospital’s

emergency room for further evaluation and treatment. There, he had his stomach pumped

and was given an intravenous line and a catheter. That evening, Black was discharged

with a diagnosis of intentional ingestion of methamphetamine and returned to LCRF.

On January 14, 2020, a prison nurse observed Black lying on the floor of his cell

with a self-made ligature around his neck. Black states that he “attempted suicide from a

result of side effects from the drugs.” Id. at 18. Black was transported to Lindsay

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Municipal Hospital. On January 17, 2020, Black was cleared by personnel at Lindsay

Municipal Hospital for release and was returned to the prison, where he was placed on

suicide watch. On January 21, 2020, Black was discharged from suicide watch.

B. Procedural History

Black filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 in the

United States District Court for the Western District of Oklahoma, alleging that eighteen

defendants had violated his constitutional rights, specifically his rights under the First,

Fourth, Fifth, Eighth, and Fourteenth Amendments.

The LCRF Defendants and, separately, Honaker moved to dismiss. On

September 28, 2021, the magistrate judge issued a thorough report and recommendation

(the R&R), wherein she concluded that Black’s suit should be dismissed as follows:

The Court should thus grant LCRF Defendants’ motion for
summary judgment[1], sua sponte enter summary judgment
on behalf of Defendants Bates, Nichols, and Jones and the
unnamed and unserved LCRF John Doe Defendants and the
Jane Doe medical Defendants, grant Defendant Honaker’s
motion to dismiss, and dismiss the remaining Defendants on
screening.

1
Because the LCRF Defendants relied on documents outside of the complaint to
support their motion to dismiss, the R&R treated their motion as one for summary
judgment under Federal Rule of Civil Procedure 56. The district court subsequently gave
notice to Black that it would proceed under Rule 56. See ROA Vol. I at 70 n.2; see Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (“If a district court intends to rely on
other evidence, it must convert the Rule 12(b)(6) motion to a motion for summary
judgment, giving proper notice to the parties.”).
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Id. at 98 (internal citations omitted).2 The R&R advised the parties “of their right to file

an objection to the Report and Recommendation . . . by October 19, 2021, in accordance

with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).” Id. at 99 (emphasis in original).

The R&R warned “that failure to make a timely objection to the Report and

Recommendation waives the right to appellate review of both factual and legal questions

contained herein.” Id.

Thereafter, Black requested several extensions of time to file his objections, which

the district court granted, providing Black until December 20, 2021 to object. Id. at 8. On

December 16, 2021, Black submitted a “declaration in opposition to Defendants’ motion

for summary judgment,” Id. at 100–05 (capitalization removed), along with a brief in

support of the declaration, id. at 108–12, exhibits, id. at 113–80, and a “supplement,” id.

at 183–84. The LCRF Defendants objected and argued Black’s filings were procedurally

inappropriate, as the content of the filings were merely reassertions of Black’s responses

to Moving Defendants’ motions, rather than objections to the R&R.

Ultimately, the district court adopted the R&R. The district court concluded that

Black did not submit an objection to the R&R but “instead submitted an unauthorized

second response to the LCRF Defendants’ Motion to Dismiss/Motion for Summary

Judgment.” Id. at 190 n.2. The district court stated that, even liberally construing Black’s

submissions and “assuming it constituted a proper objection triggering de novo review

2
Black never served Defendants Bates, Nichols, and Jones, nor did he identify and
serve the Doe defendants. The magistrate judge made the recommendation to dismiss the
claims against them sua sponte.
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under 28 U.S.C. § 636(b)(1),” the submissions did not present anything that “would

undermine [the magistrate judge]’s well-reasoned recommendations or permit Plaintiff’s

claims of violation of due process and the Eighth Amendment to proceed against any

defendant.” Id. The district court entered partial summary judgment and dismissed

Black’s suit in its entirety. Black timely appealed.

II. STANDARDS OF REVIEW

1. Motion for Summary Judgment

We review the entry of judgment as a matter of law de novo, “applying the same

standard for summary judgment that applied in the district court.” Sandoval v. Unum Life

Ins. Co. of Am., 952 F.3d 1233, 1236 (10th Cir. 2020). Summary judgment is warranted

when the movant is entitled to “judgment as a matter of law” in the absence of a “genuine

dispute as to any material fact.” Fed. R. Civ. P. 56(a). We view the evidence and draw all

reasonable inferences in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

2. Motion to Dismiss

“We review de novo a district court’s grant of a motion to dismiss for failure to

state a claim.” Est. of Burgaz by & through Zommer v. Bd. of Cnty. Commissioners for

Jefferson Cnty. Colo., 30 F.4th 1181, 1185 (10th Cir. 2022). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In conducting our

review, we accept all well-pleaded facts as true, view them in the light most favorable to

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the plaintiff, and draw all reasonable inferences in his favor. Brooks v. Mentor Worldwide

LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). Because Black appears pro se, we construe

his filings liberally, but we do not serve as his advocate. See Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

III. DISCUSSION

Moving Defendants argue that Black’s appeal should be dismissed because he

(1) waived his right to appeal by failing to object to the R&R, and (2) failed to state a

claim. We conclude that Black did not waive his right to appeal, but that the district court

correctly dismissed Black’s claims and granted summary judgment.

A. The Firm Waiver Rule

Under Federal Rule of Civil Procedure 72(b)(2) and 28 U.S.C. § 636(b)(1)(C),

once a party has been served with a magistrate judge’s report and recommendation, the

party has fourteen days in which to “file specific written objections to the proposed

findings and recommendations.” Fed. R. Civ. P. 72(b)(2). Importantly, this court has

“adopted a firm waiver rule when a party fails to object to the findings and

recommendations of the magistrate.” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.

2008) (citation omitted). Thereunder, “[t]he failure to timely object to a magistrate’s

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

(internal quotation marks and citation omitted). Two exceptions allow a party to escape

the firm waiver rule: “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.” Id. (internal quotation marks and citation omitted).

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Here, Moving Defendants argue that Black waived his right to appeal by failing to

object to the R&R. We disagree and need not reach the exceptions. Black timely

submitted an objection to the R&R, which he titled a “declaration in opposition to

Defendants’ motion for summary judgment.” ROA Vol. I at 100. While Moving

Defendants are correct that the time to respond to their motions was expired, a liberal

construction of Black’s post-R&R submissions allows this court to conclude that Black’s

filings were intended as an objection to the R&R. We will not hold against a pro se party

inartful pleadings and incorrect terminology. Johnson v. Reyna, 57 F.4th 769, 775 (10th

Cir. 2023) (“In practicing leniency, we will often excuse pro se plaintiffs’ failure to cite

proper legal authority, confusion of various legal theories, poor syntax and sentence

construction, and unfamiliarity with pleading requirements.” (internal quotation marks

and citation omitted)).

B. Eighth Amendment

Black alleges that his Eighth Amendment rights were violated when Defendants

failed to provide him timely or proper medical care in light of his overdose. Based on the

record and Black’s complaint, the district court properly dismissed and granted summary

judgment on this claim.

The Eighth Amendment “imposes duties on [prison] officials, who must provide

humane conditions of confinement,” including “ensur[ing] that inmates receive adequate

food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(internal quotation marks and citations omitted). The government’s failure to provide

medical care violates the Eighth Amendment only when it demonstrates “deliberate

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indifference to an inmate’s serious medical needs.” Est. of Beauford v. Mesa Cnty.,

Colorado, 35 F.4th 1248, 1262 (10th Cir. 2022) (citation omitted). A claim of deliberate

indifference contains “both an objective and a subjective component.” Id. “[T]he focus of

the objective component is the seriousness of the plaintiff’s alleged harm, while the focus

of the subjective component is the mental state of the defendant with respect to the risk of

that harm.” Id. (citation omitted). Here, the R&R concluded (and Moving Defendants

maintain on appeal) that Black failed to meet his burden regarding Defendants’ subjective

intent.

The subjective component “requires a plaintiff to establish that a prison official

had a sufficiently culpable state of mind,” which means that the official “kn[e]w[] of and

disregard[ed] an excessive risk to inmate health or safety.” Id. (internal quotation marks

and citations omitted). “Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration in the usual ways, including

inference from circumstantial evidence, and a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that the risk was obvious.” Id.

(quoting Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005)). Here, based on both the

record and the complaint, we conclude that Black has not alleged that Defendants

deliberately disregarded Black’s serious medical needs, nor could a reasonable jury

conclude Defendants had.

At the outset of the incident, Black lied to prison staff about what he had ingested.

He told staff that he swallowed rubber bands, which, although not totally harmless,

presented nowhere near the same risk as swallowing two balloons containing

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methamphetamine. At that point, Black was put into a dry cell for observation. According

to Black, staff did not keep him in the dry cell for the length of time required under

prison policy, but “an officer’s failure to follow internal jail policies does not

automatically mean he or she acted with deliberate indifference.” Heidel v. Mazzola,

851 F. App’x 837, 841 (10th Cir. 2021), cert. denied, 142 S. Ct. 483 (2021) (citing

Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993)). Considering the

information prison staff had at the time, the decision to remove Black from the dry cell

before the time required under prison policy did not manifest a deliberate indifference to

Black’s serious medical needs.

It was not until the balloon burst in Black’s stomach that he was able to submit to

a urine test (which came back positive for a variety of harmful substances). At that point,

he was exhibiting aggressive behavior, but prison staff had no reason to know Black was

in excessive3 medical danger—i.e., near the point of an overdose. Early the next morning,

Black informed prison staff that he had, in fact, swallowed two balloons containing

methamphetamine. With that knowledge, along with Black’s behavior that morning,

prison staff had reason to suspect an overdose. Prison staff immediately administered

medications meant to combat the overdose (which, it appears, worked) and transferred

Black to a hospital for continued treatment.

3
Black discusses that it is incorrect to state that Defendants had no knowledge of
“any potential harm” to him. Aplt. Br. at 5 (emphasis added). But, in the context of
deliberate indifference, the Constitution’s protections extend only to “excessive” or
“substantial” risks of harm. Est. of Beauford, 35 F.4th at 1262.
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Thus, based on both the complaint and the record, prison staff acted appropriately

once Black’s urinalysis was consistent with drug ingestion, he admitted to having

swallowed balloons containing drugs, and he was exhibiting overdose behavior. That

staff could have taken additional steps to ensure Black’s medical safety, when he only

exhibited aggressive behavior, is not the constitutional test. Self v. Crum, 439 F.3d 1227,

1233 (10th Cir. 2006) (“So long as a medical professional provides a level of care

consistent with the symptoms presented by the inmate, absent evidence of actual

knowledge or recklessness, the requisite state of mind cannot be met.”). Black’s

allegations are insufficient to support an Eighth Amendment claim against any defendant,

nor has he raised a genuine issue of material fact. The district court properly granted

summary judgment to the LCRF Defendants, as well as to Defendants Bates, Nichols,

Jones, and the Does, and dismissed Black’s claims.4

C. Fourteenth Amendment

Black also alleges that Honaker, along with Smith and several of the Doe

defendants, transferred Black to a mental hospital after his suicide attempt based on false

documents, which “put his liberty interest in jeopardy.” Aplt. Br. at 15. The Fourteenth

Amendment provides that no state shall “deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV. Both the R&R and Honaker

4
The R&R determined that Black did not allege an Eighth Amendment claim
against Honaker. However, on appeal, Honaker argues the Eighth Amendment claims
should be dismissed against him. We conclude that Black wholly fails to allege and
support his Eighth Amendment claim against any of the defendants.
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correctly assert that Black has failed to state a claim for violation of his procedural and

substantive due process rights.

As to the due process clause’s procedural protections, the Supreme Court has

concluded that, while “[a] criminal conviction and sentence of imprisonment extinguish

an individual’s right to freedom from confinement for the term of his sentence, [] they do

not authorize the State to classify him as mentally ill and to subject him to involuntary

psychiatric treatment without affording him additional due process protections.” Vitek v.

Jones, 445 U.S. 480, 493–94 (1980). Thus, “transfer to a mental hospital for involuntary

psychiatric treatment [may] constitute the kind of deprivations of liberty that requires

procedural protections.” Id. at 494. In the present case, however, exigent circumstances

necessitated Black’s immediate psychiatric care. Before being transferred, Black had

attempted suicide; he attempted to fatally injure himself, and, only days prior, had

suffered a serious overdose. It was apparent that Black needed emergency care, and

prison staff acted quickly to ensure Black received it. See, e.g., Hughes v. Rowe, 449 U.S.

5, 11 (1980) (“Segregation of a prisoner without a prior hearing may violate due process

if the postponement of procedural protections is not justified by apprehended emergency

conditions.” (emphasis added)).

As to the due process clause’s substantive protections, Defendants’ actions cannot

“be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 847 (1998). Although Black alleges that “Defendant

Honaker . . . fabricated legal documents to . . . cover up the negligence” and have Black

admitted to the hospital, Black admits that he tried to kill himself by tying a rope around

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his neck and attempting suicide. That Defendants responded by having Black hospitalized

to receive psychiatric care is not shocking. Black has failed to state a claim for violation

of his due process rights.

D. Remaining Claims in the Complaint

Black’s complaint contains a number of causes of action that are not discussed in

the R&R or on appeal in any meaningful way. Nevertheless, the district court’s order

dismissed Black’s suit in its entirety. For example, in his complaint and on appeal, Black

states that he has brought a claim under the Fourth Amendment for “search & seizure

privacy.” Aplt. Br. at 3. This cause of action, however, is not fleshed out in the complaint

or the record. In his response to the R&R, Black did not raise it, and his discussion of it

on appeal is conclusory at best. Black’s complaint also contains allegations of retaliation

for his filing a lawsuit, negligence, failure to intervene, and assault and battery in the

form of unconsented treatment. All of these claims lack briefing and clear delineation of

any claimed error. Accordingly, they are dismissed without prejudice.

IV. CONCLUSION

Black has raised no legal argument or cited anything in the record to suggest that

the district court improperly dismissed his claims and granted summary judgment to

some of the defendants. We AFFIRM the order of the district court. Black’s motion to

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proceed in forma pauperis is GRANTED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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