F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 26, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID E. CALLAHAN,
Plaintiff-Appellant,
v. No. 06-6090
DAYTON J. POPPELL, Warden; RON
CHAMPION; SANDRA ATWOOD; DR.
MARK FOGLE; DR. JACK
GREGSTON; NURSE GLENN; DENNIS
COTNER, MAJOR; MAJOR POSVIC;
SGT. JOHNSON; MR. CUNNINGHAM;
MR. CROW; NURSE WILKERSON;
NURSE ARMSTRONG; NURSE
SIMON; OFFICER WILLIS; RON
WARD; LAWTON CORRECTIONAL
FACILITY; WACKENHUT
CORRECTIONS CORPORATION;
OKLAHOMA DEPARTMENT OF
CORRECTIONS; NURSE STORM; DR.
GUMERLOCK; NURSE HEATH; MR.
MILLER; OU MEDICAL CENTER,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 03-CV-551-F)
Submitted on the briefs:
David E. Callahan, pro se.
Jennifer L. Wright, Assistant Attorney General, State of Oklahoma, Oklahoma City,
Oklahoma, for Defendant-Appellee Dennis Cotner.
Don G. Pope, Don G. Pope & Associates, P.C., Norman, Oklahoma, for Defendants-
Appellees Sandra Atwood, Dr. Mark Fogle, Dr. Jack Gregston, Sgt. Johnson, and Lawton
Correction Facility.
Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
BRISCOE, 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.
David Callahan, an Oklahoma prisoner appearing pro se, filed this action under 42
U.S.C. § 1983, alleging that the defendants’ failure to provide him with a wheelchair
following an injury violated his rights under the Eighth Amendment. The district court
granted the defendants’ motions for summary judgment, concluding that the Eleventh
Amendment barred suit against one defendant in his official capacity and that the other
defendants were not deliberately indifferent to serious medical needs.
Callahan now appeals both rulings against him. Along the way, Callahan attacks
other alleged errors and attempts to add a claim under the Americans with Disabilities
Act. Further, Callahan seeks leave to personally argue the case before the panel. We
exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
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I.
On April 17, 2001, while serving his prison sentence at Lawton Correctional
Facility, Callahan slipped and fell. Letter from Sandra Atwood, RN, Health Services
Administrator to Grievance Officer at 1. The prison’s medical staff took X-rays, gave
him medication, and provided a pair of crutches for use in moving around the prison. Id.
Callahan requested a wheelchair, asserting that he could not walk on the crutches “due to
severe pain.” Request to Staff at 1 (dated April 18, 2001). The medical staff denied him
a wheelchair, based on its determination that use of a wheelchair would weaken him by
contributing to “further deterioration of [Callahan’s] legs and back.” Progress Note at 1.
One physician working on Callahan’s case worried that “[r]eliance on a wheelchair can
lead to unnecessary invalidism and wasting of muscles” in cases, such as Callahan’s,
where there are no “surgical lesions.” Aff. of Dr. Mark Fogle at 1 (hereinafter “Fogle
Aff.”).
Callahan asserts that the prison’s Health Services Administrator, Sandra Atwood,
initially authorized giving him a wheelchair, but that she was countermanded by a
Sergeant Johnson in retaliation for Callahan’s work in helping other inmates use the law
library. Aplt. Br. at 4-7, 12-13, 25, 31-32, 41; Dep. of David Callahan at 57:18-23
(hereinafter “Callahan Dep.”); Request to Staff at 1 (dated April 20, 2001). Atwood
denies discussing with Sergeant Johnson whether Callahan needed a wheelchair. Dep. of
Sandra Atwood at 16:22-25 (hereinafter “Atwood Dep.”). Subsequently, Dr. Jack
Gregston, one of the two doctors at the prison, authorized the use of a wheelchair on “a
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short-term basis while we assessed” Callahan. Dep. of Dr. Jack Gregston at 30:8-13
(hereinafter “Gregston Dep.”). At the time, Gregston did not know that Callahan had
refused to use crutches or that the medical staff had denied his use of a wheelchair. Id.
When Gregston’s superiors learned that he had authorized a wheelchair, they informed
him of the basis for their denial and reversed his decision. Id. at 30:17-31:13. Gregston’s
superiors told him that they feared that Callahan would “lose all ability to walk” if they
allowed him to move about in a wheelchair. Id.
Callahan was also referred to Dr. R. Jones, an orthopedist. Id. at 31:19-32:15;
Dep. of Dr. Mark Fogle at 18:2-22 (hereinafter “Fogle Dep.”). Jones recommended, in
part, that Callahan be provided a wheelchair, based on Callahan’s representation that he
would need to traverse long distances in the prison while eating and doing other daily
activities. Letter from Dr. R. Jones at 1; Fogle Dep. at 18:25-19:20. After receiving the
letter, Dr. Mark Fogle, the other doctor at the prison, discussed with Jones the basis for
his wheelchair recommendation. Fogle Dep. at 18:25-19:20. Fogle told Jones that the
prison was planning to house Callahan in the Medical Department. Id. Because Callahan
would not need to walk long distances while housed in the Medical Department, Jones
indicated that Callahan would not need a wheelchair while residing there. Id.
Callahan alleges that he fell repeatedly, contracted infections, and suffered pain
from the use of the crutches instead of a wheelchair. Aplt. Br. at 10-12, 22-23, 40.
Asserting violations of various constitutional rights, Callahan initially filed suit under 42
U.S.C. § 1983 in the Northern District of Oklahoma against Atwood, Gregston, Fogle,
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Johnson, Dennis Cotner (the Medical Services Administrator for the Department of
Corrections), and Lawton Correctional Facility, but the case was transferred to the
Western District of Oklahoma. After much procedural wrangling between the parties,
and after Callahan repeatedly requested appointment of counsel, the magistrate judge
authorized the clerk’s office to request counsel for Callahan.
The defendants thereafter filed dispositive motions regarding Callahan’s Third
Amended Complaint. When Callahan moved to amend his complaint a fourth time to
limit his claims to a sole count alleging an Eighth Amendment violation, the parties
stipulated that the court could treat the briefing on the motions regarding the Third
Amended Complaint as if they had been filed regarding the Fourth Amended Complaint.
The district court subsequently adopted the magistrate judge’s recommendations, finding
that the Eleventh Amendment barred suit against Cotner in his official capacity, and that
there were no genuine issues of material fact on Callahan’s Eighth Amendment claim
concerning Cotner in his personal capacity, Lawton Correctional Facility, and the
remaining defendants in their personal and official capacities. As a result, the district
court dismissed Cotner in his official capacity without prejudice and granted summary
judgment in favor of the other defendants (and Cotner in his personal capacity). This
appeal followed.
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II.
We review the district court’s holding on summary judgment and the Eleventh
Amendment de novo. Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006);
Joseph A. v. Ingram, 275 F.3d 1253, 1259 (10th Cir. 2002).
A.
We turn first to the district court’s decision to dismiss Cotner, in his official
capacity, on the basis of Eleventh Amendment immunity. When a suit alleges a claim
against a state official in his official capacity, “the real party in interest in the case is the
state, and the state may raise the defense of sovereign immunity under the Eleventh
Amendment.” Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 631 (10th Cir. 1998).
Callahan’s attorney indicated that he was asserting the Eighth Amendment claim against
all of the defendants, including Cotner, in their personal and official capacities. Report
and Recommendation at 1 n.1. The defense of sovereign immunity is hence applicable,
unless Oklahoma has waived that defense or Callahan “seeks only prospective injunctive
or declaratory relief against state officials for an ongoing violation of federal law.”
Branson Sch. Dist. RE-82, 161 F.3d at 632. Oklahoma has not waived sovereign
immunity against § 1983 claims in federal district court. Ramirez v. Oklahoma Dep't of
Mental Health, 41 F.3d 584, 589 (10th Cir. 1994). Furthermore, Callahan only sought
damages from Cotner, not prospective relief. Fourth Am. Compl. at 3. Because
sovereign immunity bars Callahan’s claim against Cotner in his official capacity, the
district court’s dismissal of the claim against Cotner in his official capacity was proper.
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B.
The district court also correctly granted summary judgment on Callahan’s Eighth
Amendment claim to Lawton Correctional Facility, Cotner in his personal capacity, and
the remaining defendants in their personal and official capacities. Thirty years ago, the
Supreme Court announced that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the
Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). The
Court carefully noted, however, that “an inadvertent failure to provide adequate medical
care” does not give rise to an Eighth Amendment violation. Id. at 105-06. “Thus, a
complaint that a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the Eighth
Amendment.” Id. at 106. Instead, a prisoner must have suffered “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id.
Deliberate indifference has objective and subjective components. Kikumura v.
Osagie, 461 F.3d 1269, 1291 (10th Cir. 2006). “The objective component of the test is
met if the harm suffered is ‘sufficiently serious’ to implicate the Cruel and Unusual
Punishment Clause.” Id. (citations omitted). We assume for purposes of resolving this
appeal that Callahan satisfies the objective component and turn our attention to the
subjective component.
To prevail on the subjective component, the prisoner must show that the
defendants “knew he faced a substantial risk of harm and disregarded that risk, by failing
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to take reasonable measures to abate it.” Id. at 1293 (citation and internal quotation
marks omitted). Callahan alleges that the defendants knew he faced a risk of injury if he
was not allowed to use a wheelchair and yet they forced him to use crutches. The
evidence in the record, however, indicates that the medical staff believed that the greater
threat to Callahan arose from his use of a wheelchair, because continued use of the
wheelchair would result in muscle atrophy and imperil his ability to walk. Progress Note
at 1; Fogle Aff. at 1; Gregston Dep. at 30:17-31:13.
As proof that the defendants disregarded his medical needs as part of a retributive
plot, Callahan points to two instances where the defendants allegedly ignored a doctor’s
recommendation that he be given a wheelchair. First, Gregston authorized the use of a
wheelchair until his superiors overruled him. Yet it is undisputed that, at the time of his
interaction with Callahan, Gregston did not know that Callahan had refused to use
crutches, or that the medical staff had denied his use of a wheelchair because they feared
his leg muscles would atrophy. Gregston Dep. at 30:8-31:13. Second, although Jones
initially recommended a wheelchair for Callahan, Jones altered that assessment upon
learning that Callahan would not need to walk far while he was housed in the Medical
Department. Fogle Dep. at 18:25-19:20.
Callahan also accuses Johnson of interfering in the matter by persuading Atwood
to alter course at the beginning of this episode. Callahan offers no evidence, however,
that Atwood changed her mind because of Johnson’s influence. At most, Callahan
testifies that, “[o]bviously, Mr. Johnson had spoken with her and turned her against me.
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It was quite obvious, because he was standing behind her laughing like a hyena.”
Callahan Dep. at 57:20-23. Beyond his conclusory allegation, Callahan has no personal
knowledge or other evidence that Johnson had, in fact, blocked necessary treatment. To
the contrary, Atwood specifically denied ever discussing Callahan’s treatment with
Johnson. Atwood Dep. at 16:22-25.
Callahan’s case boils down to a contention that he had a right to a particular course
of treatment: the use of a wheelchair. Both this court and our sister circuits have rejected
such an expansive view of the rights protected by the Eighth Amendment. See Green v.
Branson, 108 F.3d 1296, 1304 (10th Cir. 1997) (“We are persuaded that a showing of
deliberate refusal to provide medical attention, as opposed to a particular course of
treatment, coupled with falsification of medical records may give rise to an Eighth
Amendment violation and is cognizable under 42 U.S.C. § 1983.”) (emphasis added);
Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997) (“[A] prison doctor remains
free to exercise his or her independent professional judgment and an inmate is not entitled
to any particular course of treatment.”); Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir.
1996) (“Medical decisions that may be characterized as ‘classic examples of matters for
medical judgment,’ such as whether one course of treatment is preferable to another, are
beyond the [Eighth] Amendment's purview.”) (citing Estelle, 429 U.S. at 107). At worst,
the defendants may have committed malpractice, but the Eighth Amendment does not
redress such a claim. See Estelle, 429 U.S. at 107 (determining that a decision not to take
an X-ray is, “[a]t most,” medical malpractice that does not fall under the Eighth
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Amendment). To succeed on an Eighth Amendment claim, as opposed to a medical
malpractice claim under state tort law, a plaintiff is required to identify “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at
106. Because Callahan failed to show such deliberate indifference, the district court did
not err in granting summary judgment to the defendants.1
C.
There are a few remaining issues to address. First, Callahan goes to great pains to
assert that he has “fully” exhausted his administrative remedies. On appeal, the
defendants do not dispute that Callahan exhausted his administrative remedies before
filing suit. We therefore need not address that issue. Garrett v. Fleming, 362 F.3d 692,
694 n.2 (10th Cir. 2004).
In his opening brief, Callahan introduces a claim under Title II of the Americans
with Disabilities Act that was not pled in his Fourth Amended Complaint. Compare Aplt.
Br. at 44, with Fourth Am. Compl. at 1-3. As we have noted, a “‘pleading that has been
amended under Rule 15(a) supersedes the pleading it modifies and remains in effect
throughout the action unless it subsequently is modified.’” Gilles v. United States, 906
F.2d 1386, 1389 (10th Cir. 1990) (citation omitted). As a general rule, issues that are not
1
Callahan also seems to argue that Cotner violated his constitutional rights by
obstructing Callahan’s efforts to exhaust his state administrative remedies. Aplt. Reply to
Cotner Br. at 2-3. If Callahan means to assert that Cotner somehow violated his right to
due process through interference with the normal course of his administrative appeals,
Callahan did not plead this claim in his Fourth Amended Complaint, which stated only a
cause of action under the Eighth Amendment for denial of the use of a wheelchair.
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raised before the district court are waived. Hicks v. Gates Rubber Co., 928 F.2d 966, 970
(10th Cir. 1991). Because Callahan did not allege an ADA claim in his Fourth Amended
Complaint, he is barred from raising this claim on appeal.
Next, Callahan appears to allege that his appointed attorney omitted from the
Fourth Amended Complaint, contrary to his instructions, a due process claim. Even if
this is true, and Callahan has offered no evidence that it is true, the Supreme Court has
emphasized that “each party is deemed bound by the acts of his lawyer-agent and is
considered to have ‘notice of all facts, notice of which can be charged upon the
attorney.’” Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (citation omitted). Any
other rule would entail “visiting the sins of plaintiff's lawyer upon the defendant.” Id. at
634 n.10 (emphasis omitted). Callahan repeatedly requested the magistrate judge to
appoint counsel, and the magistrate judge eventually found counsel for Callahan.
Callahan acquiesced in the choice of counsel and expressed his thanks to the court for
counsel. See Emergency Mot. Seeking Clarification on Appointment of Counsel for the
Pl. and Other Relating Issues of Emergency at 1. Callahan cannot now avoid the strategic
choices of his counsel.2
Callahan also asserts that the district court erred in granting the defendants an
extension of time of thirty days to respond to Callahan’s Second Amended Complaint.
2
According to his attorney, however, Callahan did not disagree with limiting the
Fourth Amended Complaint to just an Eighth Amendment violation. Courtroom Minute
Sheet at 1.
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We find no abuse of discretion in the district court’s ruling. Cf. In re Rains, 946 F.2d
731, 732 (10th Cir. 1991) (per curiam).
Finally, on November 20, 2006, Callahan filed an “emergency” motion seeking
leave to personally argue the case before the panel. In light of our determination that oral
argument would not materially assist the determination of this appeal, Callahan’s request
is moot.
III.
The district court’s order dismissing Cotner in his official capacity and granting
summary judgment in favor of Cotner in his personal capacity, Lawton Correctional
Facility, and the remaining defendants in their official and personal capacities is
AFFIRMED. Callahan’s request for appointment of counsel is DENIED. Callahan’s
“Emergency Motion Pertaining to the Above Case/Most Recent Court Order from the
Court Clerk, Ms. Shumaker” is DENIED. Callahan’s motion for leave to personally
argue the case is DENIED as moot.
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