FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BRUCE EDWARD PETERSON,
Plaintiff - Appellant,
v. No. 16-1105
(D.C. No. 1:14-CV-01916-REB-
DR. TIMOTHY CREANY; DR. NYW)
BEATTE; DR. DAVID TESSIER; (D. Colo.)
RICK MEICER, R.N.; MARK
WIENPAHL; WARDEN LOU
ARCHULETA,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
Mr. Bruce Peterson is a Colorado state prisoner who filed a pro se
action, invoking 42 U.S.C. § 1983 and alleging deliberate indifference to
*
Mr. Peterson requests oral argument, but it would not materially aid
in our decision. As a result, we are deciding the appeal based on the briefs.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and Tenth Cir. R. 32.1(A).
serious medical needs. 1 The defendants filed a motion for dismissal or
summary judgment, and Mr. Peterson moved for appointment of counsel.
The district court denied Mr. Peterson’s motion for appointment of
counsel and granted (1) the motion to dismiss by six defendants (Tessier,
Archuleta, Creany, Beatte, Miller, and Jane Doe) on the ground that
Mr. Peterson had failed to state a claim on which relief can be granted and
(2) the motion for summary judgment by two defendants (Wienpahl and
Meicer) based on a failure to exhaust available administrative remedies.
Mr. Peterson appeals these rulings, and we affirm.
I. Motion to Request Counsel
The district court denied Mr. Peterson’s motion for appointment of
counsel, reasoning that the case was not complex enough to warrant
appointment of counsel and that Mr. Peterson could sufficiently advance
the necessary facts and legal arguments. The court further found that any
potential issues regarding adequate access to the prison law library could
be addressed in due course, that Mr. Peterson’s concerns about the trial
were premature and not unique to his case, and that the merits were not
sufficiently clear to require counsel.
1
The district court liberally interpreted the complaint to include a
claim under the Americans with Disabilities Act. In the appeal, however,
Mr. Peterson does not address the viability of a claim under this statute.
2
We review this reasoning for an abuse of discretion. Rachel v. Troutt,
820 F.3d 390, 397 (10th Cir. 2016). Applying this standard, we conclude
that the district court acted within its discretion. The court was powerless
to compel an attorney to take the case; the court could only ask an attorney
to consider representing Mr. Peterson. Id. at 396. In deciding whether to
request counsel for Mr. Peterson, the court was to consider the merits, the
nature of the claims, Mr. Peterson’s ability to present the claims, and the
complexity of the issues. Id. at 397. The district court considered these
factors and supplied a cogent explanation for the decision. That decision
fell within the district court’s discretion.
II. Dismissal
Even if the allegations in the complaint are true, they would not
create liability for defendants Tessier, Archuleta, Creany, Beatte, Miller,
and Jane Doe. Thus, the district court properly dismissed the claims
against these six individuals.
A. Allegations in the Amended Complaint 2
In considering the ruling on the motion to dismiss, we start with the
amended complaint.
2
Because Mr. Peterson proceeds pro se, we construe his filings
liberally but do not act as his advocate. Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008).
3
There Mr. Peterson alleges a long history of mental illness, epilepsy,
and hepatitis C. His ailments were recorded in the prison system’s database
and were classified as requiring chronic care. But that classification was
removed.
Mr. Peterson alleges that (1) Dr. Timothy Creany prescribed Tegretol
to treat bipolar disorder and epilepsy despite Mr. Peterson’s hepatitis and
(2) Tegretol is contraindicated for patients with liver problems. When
Mr. Peterson complained about side effects, he was allegedly told that
mental health patients had to continue to take medication or face lockdown
and suspension of privileges.
Dr. Creany then ran a blood test, discovered that Mr. Peterson’s
hepatitis had been “reactivated” because of the Tegretol, and said to stop
taking the medication. Dr. Creany also ordered the dispensary to stop
giving Tegretol to Mr. Peterson.
By this time, Mr. Peterson was allegedly near death, with blood-clot
bruising on his skin and severe liver damage. He complained about the
blood clots to a prison psychiatrist, Dr. Miller, who was allegedly
dismissive.
Dr. Miller then prescribed Carbamazepine, which is the generic
equivalent of Tegretol. The Carbamazepine allegedly caused (1) pain in
Mr. Peterson’s leg, joints, neck, stomach, head, chest, and lungs;
(2) weakness; (3) vomiting; (4) bleeding; (5) swelling of the feet and
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throat; (6) confusion; (7) shortness of breath; (8) sleep disruption;
(9) faintness; (10) loss of teeth; and (11) bloodshot eyes.
Mr. Peterson alleges that another prison psychiatrist, Dr. Hope
Beatte, shared responsibility for the second prescription. According to Mr.
Peterson, Dr. Beatte should not have ordered Carbamazepine without
examining the medical records, which contained Dr. Creany’s instruction
for the dispensary not to prescribe Tegretol.
In addition, Mr. Peterson claims that when confronted, Dr. Miller
reacted with hostility and blamed Mr. Peterson for not knowing that
Carbamazepine was the same as Tegretol and was equally life-threatening
to someone with hepatitis.
Mr. Peterson was then prescribed a pain medication by an outside
doctor. But a prison nurse, Mr. Rick Meicer, allegedly refused to provide
the medication because of its expense. Nurse Meicer instead gave
Mr. Peterson ice to apply to his blood clots. The ice allegedly froze a clot,
leaving Mr. Peterson with a limp, thrombosis, and exacerbation of sciatic
pain.
Mr. Peterson also alleges that he showed his complications to another
health care provider, Mr. Mark Wienpahl, who purportedly laughed and did
nothing. According to Mr. Peterson, an unidentified nurse observed burst
veins but said to put in a sick-call slip instead of providing an immediate
appointment. Mr. Peterson followed this advice and waited before seeing
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Dr. Creany, which led to Mr. Peterson’s legs giving out, more burst veins,
bloody urine, and nose bleeds.
Additionally, Mr. Peterson asserts that the Health Services
Administrator, Dr. David Tessier, failed to properly supervise his staff and
neglected to act even after being informed about the prescriptions for
Tegretol and Carbamazepine. Mr. Peterson adds that the prison warden
(Mr. Lou Archuleta) (1) failed to ensure satisfaction of Mr. Peterson’s
medical needs without discrimination and (2) maintained a policy requiring
prisoners to take medication that was detrimental.
B. Standard of Review
When reviewing a dismissal under Federal Rule of Civil Procedure
12(b)(6), we engage in de novo review, accepting the well-pleaded factual
allegations as true and construing them most favorably to the plaintiff.
Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014). Under this
standard, the complaint suffices only if it contains enough factual matter to
state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Plausibility does not
require probability, but does require more than a sheer possibility of
illegality. Id.
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C. Dismissal of the Claims Against Warden Archuleta and Dr.
Tessier
The district court dismissed the claims against Warden Archuleta and
Dr. Tessier, reasoning that Mr. Peterson’s allegations had failed to include
facts that would show personal participation. These dismissals were
proper.
“Section 1983 provides a federal cause of action against any person
who, acting under color of state law, deprives another of his federal
rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). In § 1983 cases,
governmental officials bear liability only for their own misconduct. Iqbal,
556 U.S. at 677. Although a supervisor can sometimes incur liability under
§ 1983 for the unconstitutional acts of subordinate employees, supervisory
status alone is insufficient. Dodds v. Richardson, 614 F.3d 1185, 1195
(10th Cir. 2010). In addition, the plaintiff must allege facts showing a link
between the constitutional violation and a supervisor’s breach of
responsibilities. Schneider v. City of Grand Junction Police Dep’t, 717
F.3d 760, 767 (10th Cir. 2013).
For the claim against Dr. Tessier, Mr. Peterson’s allegations were
conclusory, stating only that Dr. Tessier had failed to properly supervise
his staff and had done nothing after learning of the prescription for
Tegretol. These allegations constitute “naked assertions devoid of further
factual enhancement,” which are insufficient to allow “the reasonable
7
inference” that Dr. Tessier incurs liability under § 1983. Iqbal, 556 U.S.
at 678 (internal quotation marks omitted).
For Warden Archuleta, Mr. Peterson could prevail by showing that
the warden had (1) “promulgated, created, implemented or possessed
responsibility for the continued operation of a policy,” (2) “caused the
complained of constitutional harm,” and (3) “acted with the state of mind
required to establish the alleged constitutional deprivation.” Dodds, 614
F.3d at 1199.
Mr. Peterson alleges that Warden Archuleta was responsible for the
continued use of a policy that forces mental health patients to take
detrimental medications or face lockdown and suspension of privileges.
But, even if the policy existed, it would not link Warden Archuleta to the
alleged constitutional violation. There is nothing in the complaint
suggesting that Warden Archuleta knew that Mr. Peterson had been given
the wrong medication.
In the absence of such allegations, the district court was right to
dismiss the claims against Warden Archuleta and Dr. Tessier.
D. Dismissal of the Claims Against Dr. Creany, Dr. Miller,
Dr. Beatte, and Jane Doe
The Eighth Amendment is violated by deliberate indifference to
serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104
(1976). Liability is imposed only when a prison official disregards an
8
excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S 825,
837 (1994). Negligence is not enough. Estelle, 429 U.S. at 106.
The district court determined that Mr. Peterson had failed to state a
valid § 1983 claim against Dr. Creany, Dr. Beatte, Dr. Miller, and Jane
Doe, reasoning that the alleged conduct amounted only to negligence. We
agree.
Though Dr. Creany may have been negligent in prescribing Tegretol,
there were no allegations that Dr. Creany had known that the medication
would be harmful. When Mr. Peterson complained about side effects,
Dr. Creany admittedly ordered a blood test, reviewed the results, and
immediately discontinued the Tegretol. Dr. Creany’s alleged mistake in
prescribing Tegretol would not suggest deliberate indifference. See
Johnson v Stephan, 6 F.3d 691, 692 (10th Cir. 1993) (holding that an
improper prescription for a leg stocking, intended to treat leg cramps and
swelling, would not rise to the level of a constitutional violation); see also
Brown v. Prison Health Servs., El Dorado Corr. Facility, 159 F. App’x
840, 841 (10th Cir. 2005) (concluding that a § 1983 plaintiff failed to state
a claim when there was no indication that prison officials knowingly
prescribed an inappropriate medication). 3
3
Brown is unpublished and therefore not precedential. But we view
Brown as persuasive.
9
Similarly, Mr. Peterson’s allegations against Dr. Miller 4 and Dr.
Beatte amounted only to negligence. These physicians allegedly prescribed
the generic equivalent of Tegretol after Dr. Creany had discontinued use of
the brand name drug (Tegretol). But this alleged mistake would not suggest
a violation of the Eighth Amendment.
The same is true for the claim against Jane Doe, who allegedly
instructed Mr. Peterson to submit a sick-call slip instead of permitting an
immediate examination. At most, this instruction might constitute
negligence, not deliberate indifference.
On appeal, Mr. Peterson does not show any flaws in the district
court’s analysis. In our view, the district court correctly held that the
complaint did not include factual allegations showing the deliberate
indifference of Dr. Creany, Dr. Miller, Dr. Beatte, or Jane Doe.
III. Summary Judgment on the Claims Against Mr. Wienpahl and
Nurse Meicer
The Prison Litigation Reform Act of 1995 provides that “[n]o action
shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail,
4
On the claim involving Dr. Miller, Mr. Peterson argues that a court
should order production of a videotape allegedly showing Dr. Miller
yelling at Mr. Peterson and blaming him for not knowing that
Carbamazepine was the same drug as Tegretol. For the sake of argument,
we may assume that Mr. Peterson has accurately described this incident. In
light of this assumption, the alleged videotape would make little
difference.
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prison, or other correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). Based on this
provision, the district court granted summary judgment to defendants
Wienpahl and Meicer. This ruling was correct. 5
The district court determined that Mr. Peterson had completed the
Colorado Department of Corrections’ three-step grievance process only as
to the medication prescribed by Drs. Creany and Beatte. The court credited
the arguments by Mr. Peterson that (1) he had not known Dr. Miller’s
identity when the grievance was submitted and (2) prison regulations
prohibited the filing of a second grievance on the same issue. Nonetheless,
the court reasoned that Mr. Peterson could have named Mr. Wienpahl or
Nurse Meicer in the grievance. Accordingly, the court concluded that
Mr. Peterson had failed to exhaust available administrative remedies on the
claims against Mr. Wienpahl and Nurse Meicer.
We review an order granting summary judgment de novo, applying
the same standards that applied in district court. Fields v. City of Tulsa,
753 F.3d 1000, 1008 (10th Cir. 2014). In district court, a motion for
summary judgment must be granted if (1) the movant shows the absence of
a genuine dispute regarding a material fact and (2) the movant is entitled to
5
The district court also granted summary judgment to defendants
Archuleta and Tessier. But we need not address this aspect of the ruling
because Mr. Archuleta and Dr. Tessier are entitled to dismissal.
11
judgment as a matter of law. Fed. R. Civ. P. 56(a). We view the record and
reasonable inferences in the light most favorable to Mr. Peterson. Fields,
753 F.3d at 1009.
Mr. Peterson contends that he exhausted available administrative
remedies based on the authorities’ final response. But this contention is
based on a misreading of the final response. It states that Mr. Peterson had
not exhausted available administrative remedies because a record request
was not the proper procedure: “Because this is not a valid method for
review of your issue [i.e., record requests], you have not exhausted your
administrative remedies. This is the final administrative action in this
matter.” R. at 107-08 (emphasis added).
According to Mr. Peterson, he did everything that he could because
regulations prevented him from filing another grievance on the same
matter. But Mr. Peterson knew the identities of Mr. Wienpahl and Nurse
Meicer. Aware of what they had allegedly done, Mr. Peterson submitted a
grievance silent about their conduct; the grievance was confined to the
actions of Drs. Creany, Miller, and Beatte. Accordingly, the grievance did
not sufficiently apprise prison officials of the nature of the claims against
Mr. Wienpahl or Nurse Meicer. See Kikumura v. Osagie, 461 F.3d 1269,
1285 (10th Cir. 2006) (holding that an inmate properly exhausts a claim if
his grievance “provides prison officials with enough information to
investigate and address the inmate’s complaint internally”), abrogated on
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other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), as
explained in Robbins v. Oklahoma, 519 F.3d 1242, 1246-47 (10th Cir.
2008). Accordingly, we conclude that the district court properly
determined that Mr. Peterson had failed to exhaust available administrative
remedies concerning defendants Wienpahl and Meicer. These defendants
were properly awarded summary judgment.
IV. Leave to Proceed In Forma Pauperis
We grant Mr. Peterson’s request for leave to proceed in forma
pauperis. The relevant statute, 28 U.S.C. § 1915(a)(1), does not permit
litigants to avoid payment of filing and docketing fees. Instead, the statute
serves only to excuse prepayment of these fees. Though we have disposed
of this matter on the merits, Mr. Peterson remains obligated to pay all
filing and docketing fees. He is directed to pay the fees to the Clerk of the
District Court for the District of Colorado.
Mr. Peterson moves for waiver of partial payments based on
hardship. He bases the alleged hardship on his inability to maintain
hygiene. But the statute does not entail confiscation of all funds in an
institutional account; instead, the statute requires periodic payment of only
20% of the income generated in the previous month. See 28 U.S.C.
§ 1915(b)(2). Mr. Peterson has not shown how partial payments, as
required in the statute, would interfere with his ability to maintain proper
hygiene. See Miller v. Lincoln Cty., 171 F.3d 595, 596 (8th Cir. 1999)
13
(“When it passed the Prison Litigation Reform Act . . ., Congress made the
legislative determination that limiting the amount of filing fees paid from a
prisoner’s account to 20% of the previous month’s income . . . adequately
accommodated a prisoner’s need for money for personal items.”). Thus, we
deny the motion to waive partial payments toward the filing fee.
V. Disposition
We affirm the rulings
denying Mr. Peterson’s motion for appointment of
counsel,
granting the motion to dismiss by defendants Tessier,
Archuleta, Creany, Beatte, Miller, and Jane Doe, and
granting the motion for summary judgment by defendants
Wienpahl and Meicer.
We also grant leave to proceed in forma pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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