Kikumura v. Osagie, No. 04-1249.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMcConnell
Citation461 F.3d 1269
PartiesYu KIKUMURA, Plaintiff-Appellant, v. A. OSAGIE; Vail; K. Sanders; R. Bauer; B. Greenwood; Michael V. Pugh, G.L. Hershberger; Kathleen M. Hawk, Defendants-Appellees.
Decision Date08 September 2006
Docket NumberNo. 04-1249.
461 F.3d 1269
Yu KIKUMURA, Plaintiff-Appellant,
v.
A. OSAGIE; Vail; K. Sanders; R. Bauer; B. Greenwood; Michael V. Pugh, G.L. Hershberger; Kathleen M. Hawk, Defendants-Appellees.
No. 04-1249.
United States Court of Appeals, Tenth Circuit.
September 8, 2006.

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Yu Kikumura filed a brief, pro se.

Richard L. Gabriel (Brittany J. Nelson with him on the briefs) of Holme Roberts & Owen LLP, Denver, CO, for Plaintiff-Appellant in Supplemental Briefing.

Kathleen L. Torres, Assistant United States Attorney, (John W. Suthers, United States Attorney, with her on the Answer Brief, William R. Leone, United States Attorney, with her on the Supplemental Answer Brief) Denver, CO, for Defendants-Appellees.

Before KELLY, HENRY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.


Yu Kikumura, a federal prisoner, became severely ill one afternoon in his cell. Almost eight hours passed between the time when he first reported feeling sick and when he was finally taken to a doctor; a delay that Mr. Kikumura believes caused him severe injury and almost cost him his life. He filed suit in federal court alleging various Eighth Amendment and state tort claims against a number of different prison officials and the United States. The district court dismissed the entire action, citing, among other reasons, Mr. Kikumura's failure to exhaust administrative remedies or state a claim under the Eighth Amendment, and his failure to file a certificate of review for his medical malpractice Federal Tort Claims Act claims. On appeal, we address several matters relating to the Prison Litigation Reform Act's exhaustion requirement, the pleading standards for an Eighth Amendment claim of deliberate indifference, Colorado's requirement that litigants file a certificate of review demonstrating substantial justification for negligence claims arising out of professional malfeasance, and whether Colorado law recognizes a cause of action against prison guards for failing to summon medical personnel on behalf of a sick inmate.

I. BACKGROUND

A. The Events Surrounding Mr. Kikumura's Illness on July 5, 2002

Yu Kikumura, the plaintiff-appellant, is a federal prisoner housed at the United States Penitentiary, Administrative Maximum ("ADX"), in Florence, Colorado. Mr. Kikumura, a former member of the now-defunct terrorist group called the Japanese Red Army, was convicted on November 28, 1988, on numerous counts of interstate transportation of explosive devices and passport offenses, and is currently serving a 262-month sentence. See United States v. Kikumura, 947 F.2d 72, 73-74, 75 (3d Cir.1991); Kikumura v. United States, 978 F.Supp. 563, 569 (D.N.J.1997).

On July 5, 2002, Mr. Kikumura became violently ill in his prison cell. At approximately 2:30 p.m. he hit the panic button in his cell to call for help. The officers on

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duty that afternoon, identified as Vail and K. Sanders (together, the "Correctional Officers"), arrived at Mr. Kikumura's cell at 2:50 p.m. and observed that he "was on his floor complaining of severe cramps, pain and vomiting." Original Compl. Ex. B-1. The Correctional Officers placed a call to the prison infirmary to notify its staff of Mr. Kikumura's condition.

Mr. Anthony Osagie, a physician's assistant at the prison infirmary, arrived at Mr. Kikumura's cell at 3:15 p.m. Mr. Osagie's notes indicate that he observed Mr. Kikumura "lying on the floor on his left side [making an] extreme [and] dramatic display of pain distress." Original Compl. Ex. C-3. Mr. Osagie instructed Mr. Kikumura to stand up and walk with him and the Correctional Officers to the infirmary, but Mr. Kikumura "claim[ed] that he [could not] get up because of cramps in [his] back and legs." Id. The Correctional Officers dragged Mr. Kikumura to the infirmary by his arms.

Once they reached the infirmary, Mr. Osagie told Mr. Kikumura to get up on the examination table. When Mr. Kikumura said he was unable to stand, Mr. Osagie accused him of being "dramatic, exaggerating." Am. Compl. 5. After what Mr. Kikumura describes as a "perfunctory exam," Mr. Osagie concluded that Mr. Kikumura was suffering from symptoms of lactose intolerance, but otherwise exhibited "no pathology." Am. Compl. 5-6; Original Compl. Ex. C-4. He prescribed Mr. Kikumura "[r]eassurance and observation," gave him acetaminophen, and encouraged him to drink plenty of fluids. Original Compl. Ex. C-4.

The medical records indicate that Mr. Kikumura actually was suffering from hyponatraemic encephalopathy, a serious medical condition caused by low sodium levels in the blood.1 Mr. Kikumura had been on a "no salt" diet for the previous three months. Mem. in Support of Original Compl. 2. And, on July 2, 2002, three days before he fell ill, Mr. Kikumura went for a ten-mile run in the prison yard during "extreme hot weather, probably 100 F.," and "drank [large amounts of] water and sweated a lot during and after the run[]." Id. Mr. Kikumura claims that his low sodium intake and excessive consumption of fluids were likely related to his development of hyponatremia.2 Id. at 3.

"Symptomatic hyponatremia ... is a medical emergency," and "[o]nce signs of encephalopathy are identified, prompt treatment is required in a monitored setting." Michael L. Moritz & J. Carlos Ayus, The Pathophysiology and Treatment of Hyponatraemic Encephalopathy: An Update, 18 Nephrology Dialysis Transplantation 2486, 2489 (2003). Mr. Osagie apparently failed to recognize that Mr. Kikumura was suffering from hyponatremia, and at 3:30 p.m. he instructed the Correctional Officers to return Mr. Kikumura to his cell. Mr. Osagie's instructions

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to Mr. Kikumura to drink plenty of fluids was precisely the wrong advice for a patient suffering from hyponatremia, and exacerbated his condition.

After they dragged him back to his cell, the Correctional Officers had to lay Mr. Kikumura on his bed "because the severe pains and cramps had [left him] unable to stand up or walk." Am. Compl. 6. Mr. Kikumura claims that soon after he was returned to his cell his condition "rapidly deteriorated," and he began vomiting severely. Id. at 6. He crawled out of his bed and, "[c]ollapsing by the toilet," he continually attempted to drink water but would "throw it up violently around the floor." Id. He claims that his "untreated extreme cramps and pains spread throughout the whole of [his] body as if imposing ... a torture." Id. The pain gave "rise to psychological anguish and horror of death, as [he] was writhing and thrashing in the waste [for] hour[s], ceaselessly screaming `help me,' falling into a confusion which was caused by the illness that was also damaging [his] brain." Id.

Due to the swelling in his brain caused by the hyponatremia, Mr. Kikumura lost all memory of the remaining events of July 5, 2002 beginning sometime between 4:00 p.m. and 4:30 p.m. Based on the administrative record provided to Mr. Kikumura after the incident, however, it appears that Mr. Osagie did not take Mr. Kikumura to the infirmary again until sometime between 7:35 p.m. and 8:15 p.m.3 By that time Mr. Kikumura's condition had deteriorated even further. His medical records indicate that he "appeared to be seizing and had some blood coming from [his] mouth." Original Compl. Ex. C-5. He was also "combative and would not offer [an] explanation as to what and where he hurts." Id. Mr. Osagie started providing basic treatment to Mr. Kikumura around 8:15 p.m., but his condition only worsened. At 9:25 p.m. Mr. Osagie telephoned the physician on-call, Dr. Leyba, and informed him of Mr. Kikumura's condition.

Dr. Leyba arrived at the prison infirmary at 10:20 p.m. According to Dr. Leyba's notes, when he arrived Mr. Kikumura was "in extremis," meaning at the point of death. Original Compl. Ex. C-26. He was thrashing around, seizing, and gasping for air. Dr. Leyba diagnosed him with hyponatraemic encephalopathy and acute pulmonary edema. After determining that Mr. Kikumura "could possibly demise if placed on a flat [a]mbulance gurney" and taken to "Pueblo," the nearby hospital, Dr. Leyba began treating Mr. Kikumura at the infirmary, and stayed with him until 4:30 a.m. Original Compl. Ex. C-8, C-27. According to Mr. Kikumura, by the time he finally received treatment from Dr. Leyba, he was suffering from "hyponatremic encephalopathy, acute pulmonary edema and congestive heart failure, [which were] severely damaging [his] internal organs, such as [his] brain, heart, lungs, liver, kidneys, stomach, tongue and mouth." Am. Compl. 7.4

Mr. Kikumura's condition stabilized by morning, although he did not regain consciousness for another 24 hours, and was even then "confused" and "distress[ed]." Original Compl. Ex. C-14. The medical staff returned him to his cell on July 9, 2002, four days after the onset of his illness. Mr. Kikumura claims that his "[p]hysical weakness, feeling sick, nausea,

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pains in [his] stomach, legs and back, limbs bruising and their pains, emotional anxiety and distress, partial memory elapsing, and difficulty in intelligent works continued till around [the] end of July." Id. Moreover, he asserts that "mild physical problem[s] as tangible aftereffects of the disease and mental anxiety, depression, and some difficulty for intelligent works further lasted until around [the] end of September in 2002." Id.

B. Mr. Kikumura's Pursuit of Administrative Remedies

During his recovery, Mr. Kikumura came to believe that the medical treatment he received on July 5, 2002 was inadequate. Since Mr. Kikumura lost all memory of the events on July 5, 2002 sometime between 4:00 p.m. and 4:30 p.m., however, he has no direct knowledge of what caused the alleged delay in his care after that time. Nonetheless, he was able to speak with Officer Sanders, one of the correctional officers guarding his cell when he fell ill, and to ask him...

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239 practice notes
  • Bowling v. U.S., Case No. 04-2320-JAR
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 17, 2010
    ...19 Id. (quoting Earl v. United States, No. 07-cv-00476-MJW-CBS, 2007 WL 2572272, at *1 (D.Colo. Sept. 4, 2007)); Kikumura v. Osagie, 461 F.3d 1269, 1302 (10th Cir.2006). 20 Strohm, 2007 WL 3120704, at *4 (noting that the Tenth Circuit generally requires the claimant to give "reasonable noti......
  • Coffey v. United States, No. CIV 08-0588 JB/LFG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 25, 2012
    ...knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others."Kikumura v. Osagie, 461 F.3d 1269, 1301 (10th Cir. 2006), overruled on other grounds by RobbinsPage 83v. Oklahoma, 519 F.3d 1242. This section of the Restatement (Second) of......
  • Begay v. United States, No. CIV 15-0358 JB/SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 18, 2016
    ...from the treatment-based causes of action for which a proper administrative claim was submitted. Id. See also Kikumura v. Osagie , 461 F.3d 1269, 1302 (10th Cir.2006) (finding failure to exhaust with respect to FTCA claim for "negligent failure to provide adequate training and supervision t......
  • Coffey v. United States, No. CIV 08–0588 JB/LFG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 2, 2012
    ...knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.”Kikumura v. Osagie, 461 F.3d 1269, 1301 (10th Cir.2006), overruled on other grounds by Robbins v. Oklahoma, 519 F.3d 1242. This section of the Restatement (Second) of Torts ......
  • Request a trial to view additional results
243 cases
  • Bowling v. U.S., Case No. 04-2320-JAR
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 17, 2010
    ...19 Id. (quoting Earl v. United States, No. 07-cv-00476-MJW-CBS, 2007 WL 2572272, at *1 (D.Colo. Sept. 4, 2007)); Kikumura v. Osagie, 461 F.3d 1269, 1302 (10th Cir.2006). 20 Strohm, 2007 WL 3120704, at *4 (noting that the Tenth Circuit generally requires the claimant to give "reasonable......
  • Coffey v. United States, No. CIV 08-0588 JB/LFG
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 25, 2012
    ...or has reason to know that they are ill or injured, and to care for them until they can be cared for by others."Kikumura v. Osagie, 461 F.3d 1269, 1301 (10th Cir. 2006), overruled on other grounds by RobbinsPage 83v. Oklahoma, 519 F.3d 1242. This section of the Restatement (Second) of ......
  • Begay v. United States, No. CIV 15-0358 JB/SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 18, 2016
    ...from the treatment-based causes of action for which a proper administrative claim was submitted. Id. See also Kikumura v. Osagie , 461 F.3d 1269, 1302 (10th Cir.2006) (finding failure to exhaust with respect to FTCA claim for "negligent failure to provide adequate training and supervis......
  • Coffey v. United States, No. CIV 08–0588 JB/LFG.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 2, 2012
    ...knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.”Kikumura v. Osagie, 461 F.3d 1269, 1301 (10th Cir.2006), overruled on other grounds by Robbins v. Oklahoma, 519 F.3d 1242. This section of the Restatement (Second) of Torts ......
  • Request a trial to view additional results

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