Duffield v. Jackson

• Decision Date: 04 November 2008
• Docket Number: No. 08-6002.,08-6002.
• Citation: 545 F.3d 1234
• Parties: Jessie D. DUFFIELD, Plaintiff-Appellant, v. Michael JACKSON, M.D., Medical Director; Jeff Troutt, D.O., Chief Medical Officer; Katryna Frech, R.N., Correctional Health Services Administrator; Roy Arian, P.A.C., Physician's Assistant and John Doe, Physicians and Staff, OU Medical Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

545 F.3d 1234

Jessie D. DUFFIELD, Plaintiff-Appellant, v. Michael JACKSON, M.D., Medical Director; Jeff Troutt, D.O., Chief Medical Officer; Katryna Frech, R.N., Correctional Health Services Administrator; Roy Arian, P.A.C., Physician's Assistant and John Doe, Physicians and Staff, OU Medical Center, Defendants-Appellees.

No. 08-6002.

United States Court of Appeals, Tenth Circuit.

November 4, 2008.

Submitted on the briefs:^*

Jessie D. Duffield, Pro Se, Plaintiff-Appellant.

Jill Tsiakilos, Assistant Attorney General, Oklahoma City, OK, for Defendants-Appellees.

Before TACHA, KELLY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Plaintiff Jessie D. Duffield, proceeding pro se, brought a 42 U.S.C. § 1983 suit against several members of the medical staff at the James Crabtree Correctional Center ("JCCC") in Helena, Oklahoma, claiming that they violated his Eighth Amendment right to be free from cruel and unusual punishment by showing deliberate indifference to his medical condition. After referring the case to a magistrate judge who issued a report and recommendation, the district court dismissed Mr. Duffield's claim against some defendants and granted summary judgment in favor of others. Mr. Duffield appeals these dismissals and grants of summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

Mr. Duffield, who has been an inmate in the custody of the Oklahoma Department of Corrections since February 26, 1999, was transferred to the JCCC on November 17, 2005. Soon after his transfer he began complaining of hip and lower back pain, and later he also complained of an ear infection. He sought medical attention for both ailments, and a series of examinations and treatments by JCCC physicians followed for the next year. Though he received treatment, Mr. Duffield alleges that he has not been treated in a "humane manner," Complaint at 2, because the medical staff has failed to provide him the treatment and medication necessary to relieve the pain from his hip and lower back, has not sent him to an outside specialist who might prescribe a more effective course of treatment, and has provided such cursory treatment of his ear as to amount to "deliberate indifference." Id. Mr. Duffield sued Dr. Michael Jackson, the medical director of the JCCC; Dr. Jeff Troutt, a JCCC doctor who attended to Mr. Duffield; Nurse Katryna Frech, an administrator who facilitated Mr. Duffield's medical requests; Roy Arian, a Physician's Assistant who attended to Mr. Duffield; and John Doe, the physicians and staff at the Oklahoma University Medical Center, where Mr. Duffield had a consultation with an ear specialist.

The district court referred Mr. Duffield's claim to a magistrate judge for preliminary review pursuant to 28 U.S.C. § 636(b)(1)(B). On October 30, 2007, the magistrate judge issued a Report and Recommendation in which he recommended that the defendants' motions for dismissal and motions for summary judgment be granted. Specifically, he recommended that the claims against Dr. Jackson, Nurse Frech, and John Doe be dismissed because Mr. Duffield had failed to allege that any of them was personally involved in the alleged deliberate indifference, and he recommended summary judgment for Mr. Arian and Dr. Troutt because Mr. Duffield had failed to produce evidence showing a genuine issue of material fact that either men had exhibited deliberate indifference. He also denied without prejudice Mr. Duffield's request for limited discovery for service and for appointment of counsel.

The magistrate judge's Report and Recommendation ended with an explicit message to Mr. Duffield that advised him of his right to object to the report and the consequences of failing to do so:

The Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 19, 2007, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. The Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal questions contained herein. Moore v. United States, 950 F.2d 656 (10th Cir.1991).

Report and Recommendation at 35. The November 19, 2007 deadline came and went without any objection from Mr. Duffield. On November 27, 2007, the district court entered an order that adopted the magistrate judge's report and recommendation in its entirety. Three days later, on November 30, the court received an undated letter from Mr. Duffield in which he disputed some of the report's factual findings and claimed that the Department of Corrections no longer had legal aides who could assist him. R. at 24. On December 11, Mr. Duffield filed a motion for a thirty-day extension in which to object to the Report and Recommendation. The district court denied his request, citing the fact that "the deadline for objection passed without a request for extension and ... Plaintiff was not diligent in seeking an extension." Order of December 12, 2007. Mr. Duffield filed an objection to the denial of an extension on December 19, 2007, which the district court struck as repetitive on December 21. Mr. Duffield now appeals the final order, the order denying his extension of time, and the order striking his objection to the order denying an extension of time.

II. Analysis

A. Waiver of Appellate Review

Mr. Duffield disputes the factual findings recommended by the magistrate judge and adopted by the district court, arguing that there is a genuine issue of material fact as to whether the behavior of each defendant rose to the level of deliberate indifference to his medical conditions. The record unequivocally shows, however, that Mr. Duffield failed to timely object to the magistrate's report. "[W]e have adopted a firm waiver rule when a party fails to object to the findings and recommendations of the magistrate." Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). The failure to timely object to a magistrate's recommendations "waives appellate review of both factual and legal questions." Id. There are two exceptions when the firm waiver rule does not apply: "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." Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.2005); Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.1996). Neither exception applies to Mr. Duffield's case.

Though Mr. Duffield is a pro se litigant, the magistrate judge was careful to inform him of both the time period for objecting and the consequences of failing to object, which we have held is sufficient. See, e.g. Wardell v. Duncan, 470 F.3d 954 958 (10th Cir.2006); Morales-Fernandez, 418 F.3d at 1119. The report "stated in clear English," id. at 1119, that Mr. Duffield had until November 19 to object and that failure to do so would waive his right to appellate review of all factual and legal questions. Report and Recommendation at 35. Thus, he cannot avail himself of the first exception to the waiver rule.

We are also unpersuaded that the "interests of justice" exception demands that we overlook the waiver rule in Mr. Duffield's case. Although "interests of justice" is "a rather elusive concept," Morales-Fernandez, 418 F.3d at 1120, we have considered factors such as "a pro se litigant's effort to comply, the force and plausibility of the explanation for his failure to comply, and the importance of the issues raised." Id. Mr. Duffield does not claim to have been unaware of the filing deadline, nor does he claim to have attempted to comply with it. The fault rests with him alone. The only explanation he offers is that the law clerks who had been assisting the inmates at his facility were transferred to another facility. While we appreciate the difficulties of proceeding pro se, Mr. Duffield could have at the least made the factual challenges that he eventually made a week after the deadline had expired, especially as he presumably made the objections at that time without assistance from legal professionals. He also could have requested an extension. He did neither of these things.

When we consider whether the importance of the issues raised might trigger the "interests of justice" exception, we have said that, "[i]n many respects, the interests of justice analysis we have developed, which expressly includes review of a litigant's unobjected-to substantive claims on the merits, is similar to reviewing for plain error." Id. To show plain error, Mr. Duffield would have to show "(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005)).

We cannot say that the decision in this case to grant the defendants' motions to dismiss and motions for summary judgment were plain error. For a prisoner to show that his lack of medical attention violated his Eight Amendment right to be free from cruel and unusual punishment, he must show "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). A prison doctor's "negligent diagnosis or treatment of a medical condition do[es] not constitute a medical wrong under the Eighth Amendment," Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), as "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S.Ct. 285. Furthermore, "[i]ndividual liability under § 1983 must be based on personal involvement in the alleged constitutional violation." Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997). This means that Mr. Duffield must show not...