Oxendine v. Kaplan & Negron

• Decision Date: 06 March 2001
• Docket Number: No. 00-1310,00-1310
• Citation: 241 F.3d 1272
• Parties: (10th Cir. 2001) HORACE OXENDINE, Plaintiff-Appellant, v. BARRY R.G. KAPLAN, M.D. and JOSE A. NEGRON, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1272

241 F.3d 1272 (10th Cir. 2001)

HORACE OXENDINE, Plaintiff-Appellant, v. BARRY R.G. KAPLAN, M.D. and JOSE A. NEGRON, Defendants-Appellees.

No. 00-1310

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 06, 2001

Appeal from the United States District Court for the District of Colorado. (D.C. No. 99-M-1224) [Copyrighted Material Omitted]

Submitted on the briefs:^* Horce Oxendine, Pro Se.

Thomas L. Strickland, United States Attorney, and Martha A. Paluch, Assistant United States Attorney, Denver, Colorado, for Defendants-Appellees.

Before SEYMOUR, EBEL and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Horace Oxendine ("Oxendine") filed a lawsuit pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), on June 30, 1999, alleging that health care professionals (and various others who were later dismissed from the lawsuit¹) at the Federal Correctional Institute ("FCI") in Florence, Colorado, provided him with inadequate and delayed medical care during the course of his incarceration. The district court dismissed Oxendine's complaint for failure to state a claim on which relief could be granted, see Fed. R. Civ. P. 12(b)(6), and we REVERSE.

BACKGROUND

In his complaint, Oxendine alleged that Defendants Dr. Barry Kaplan, M.D., the prison physician, and Jose Negron, an assistant to Dr. Kaplan, were not qualified to perform an emergency re-attachment of Oxendine's right, middle-finger fingertip ² after it was accidentally severed when it was caught in Oxendine's cell door. Despite their lack of qualification, alleged Oxendine, Defendants refused to obtain outside specialized medical assistance both before performing the surgery and after Oxendine's injury exhibited signs of significant worsening in the weeks following the surgery. Oxendine alleged that Defendants' delay caused the permanent loss of a portion of his finger. Oxendine alleged that these actions of the Defendants violated his Fifth and Fourteenth Amendment rights to due process, and his Eighth Amendment right to be free of cruel and unusual punishment. ³

After Oxendine twice amended his complaint pursuant to orders of the district court, Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim on which relief can be granted.

On July 24, 2000, the district court granted Defendants' motion to dismiss. The district court found that Oxendine "had failed to state a claim within the jurisdiction of the court," because the Defendants' conduct, as described by Oxendine in his second amended complaint, "does not rise to a level of a claim of a violation of [Oxendine's] constitutionally protected rights." The district court found that Oxendine had not alleged deliberate indifference by the Defendants, as required to support a Bivens action, and had instead alleged facts that, at most, constituted negligence, which is not cognizable under Bivens. ⁴

Oxendine filed a timely notice of appeal of the district court's decision, and now argues that the district court improperly concluded that Defendants' conduct did not rise to the level of a constitutional violation.⁵

STANDARD OF REVIEW

We have stated that "[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). In addition, "we must liberally construe the allegations of a pro se complaint." Id. Finally, we note that, in deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any documents attached as exhibits to the complaint. See Fed. R. Civ. P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes"); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991) ("A written document that is attached to the complaint as an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal.")

DISCUSSION

Reviewing the district court's decision to dismiss Oxendine's complaint for failure to state a claim de novo, see Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999), we find that Oxendine's complaint presents facts which, if true, could entitle him to relief under Bivens. We must therefore reverse the district court's judgment dismissing Oxendine's complaint for failure to state a claim.

Although Oxendine references the Due Process Clauses of the Fifth and Fourteen Amendments and argues that he was denied his "due process rights to adequate medical treatment," his complaint is more accurately characterized as an Eighth Amendment claim that Defendants' provision of inadequate medical treatment, and delay in obtaining specialized medical assistance when it was clear Oxendine's injury was worsening despite their efforts on his behalf, caused Oxendine substantial harm. ⁶

As the Supreme Court of the United States has noted, prisoners have an Eighth Amendment right to adequate medical care:

[E]lementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency. . . .

Estelle v. Gamble, 429 U.S. 97, 103 (1976). In keeping with the principle that government officials are generally afforded wide latitude when fulfilling their discretionary functions, see Anderson v. Creighton, 483 U.S. 635, 638 (1987), however, in cases where prisoners allege that inadequate or delayed medical care violated their Eighth Amendment rights, it has been established that "[p]rison officials violate the Eighth Amendment [only] when they are deliberately indifferent to the serious medical needs of prisoners in their custody." Perkins, 165 F.3d at 811 (citing Estelle, 429 U.S. at 104-06). Eighth Amendment claims alleging inadequate or delayed medical care thus involve both an objective and a subjective component, such that we must determine both "whether the deprivation is sufficiently serious" and "whether the [government] official acted with a sufficiently culpable state of mind." See id. at 809.

In regard to the objective element, a medical need is considered "sufficiently serious" if the condition "has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (citations and quotations omitted). We note, however, that "[d]elay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm." Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). As for the subjective element, we have stated that "a plaintiff must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, 'by failing to take reasonable measures to abate it.'" Hunt, 199 F.3d at 1224 (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)). Whether the prison official had the requisite knowledge of a substantial risk to an inmate's health or safety "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." See Farmer, 511 U.S. at 842 (citation omitted).

Accordingly, for Oxendine to properly set forth an Eighth Amendment claim on which relief may be granted, he must set forth facts demonstrating that his alleged medical need, in this case the need for an outside medical specialist, "was 'sufficiently serious' to meet the objective element of the deliberate indifference test," Sealock, 218 F.3d at 1210, and that the Defendants' delay in meeting that need caused him "substantial harm," see id..⁷ Finally, to meet the subjective element of the deliberate indifference test, he must allege facts supporting an inference that Defendants knew about and disregarded a "substantial risk of harm" to his health or safety. See Hunt, 199 F.3d at 1224.

In his complaint, Oxendine states that, on March 14, 1999, after his fingertip was severed by his cell door, the guard on duty "rushed to the assigned room of inmate Oxendine and recovered the amputated portion of [Oxendine's] finger[,] which he promptly deposited in a container of ice for preservation." Oxendine was then taken to the infirmary, where officials paged Dr. Kaplan. Dr. Kaplan arrived approximately one hour later and, with the assistance of Jose Negron, surgically reattached the severed portion of Oxendine's finger to the remaining portion of Oxendine's finger. Oxendine was given Tylenol with codeine for the pain and sent back to his cell with instructions to return to the infirmary the next day. When Oxendine returned the next day, March 15, Dr. Kaplan examined and redressed the wound, noted in Oxendine's chart "tissue of reattached portion - viable", gave Oxendine more aspirin with codeine for the pain, and told Oxendine to "return to Health Services each successive day for the following two weeks."

According to the medical records attached to Oxendine's complaint, his finger was examined by a...