Sealock v. State of CO, No. 99-1185

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BALDOCK, HENRY, and MURPHY; HENRY
• Citation: 218 F.3d 1205
• Parties: (10th Cir. 2000) RICHARD J. SEALOCK, Plaintiff-Appellant, v. STATE OF COLORADO; ROY ROMER, as Governor of the State of Colorado; COLORADO DEPARTMENT OF CORRECTIONS; RENEE HUBER, an individual; ROY HAVEN, an individual; NANCY FRENCH, an individual; JOSEPH BARRETT, an individual; STEVE RUIZ, an individual, Defendants-Appellees
• Docket Number: No. 99-1185
• Decision Date: 11 July 2000

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218 F.3d 1205 (10th Cir. 2000) RICHARD J. SEALOCK, Plaintiff-Appellant,
v.
STATE OF COLORADO; ROY ROMER, as Governor of the State of Colorado; COLORADO DEPARTMENT OF CORRECTIONS; RENEE HUBER, an individual; ROY HAVEN, an individual; NANCY FRENCH, an individual; JOSEPH BARRETT, an individual; STEVE RUIZ, an individual, Defendants-Appellees. No. 99-1185 UNITED STATES COURT OF APPEALS TENTH CIRCUIT July 11, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 97-S-111)

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Robert C. Ozer of Ozer & Ozer, P.C., Denver, Colorado, for Plaintiff-Appellant.

Ken Salazar, Colorado Attorney General, Grace A. Belsches, Special Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.

Before BALDOCK, HENRY, and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

Appellant Richard J. Sealock appeals from the district court's order granting summary judgment to the appellees on his complaint brought pursuant to 42 U.S.C. 1983. We affirm in part, and reverse in part.¹

I.

The facts of this case, adduced for summary judgment purposes, are presented in the light most favorable to appellant, and we have given him the benefit of every reasonable inference therefrom. See Mann v. United States, 204 F.3d 1012, 1016 (10th Cir. 2000). At the time of the events giving rise to this case, appellant was incarcerated at Arrowhead Correctional Facility. Appellant awoke at 1:30 a.m. on January 23, 1996. He was sweating so heavily that his bed and clothing were soaked. He felt unwell. Appellant

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asked his roommate at the facility, Zack Bernal, to summon a correctional officer.

In response to Bernal's entreaty, Officer Nancy French appeared at appellant's cell. She observed that appellant was sweating, vomiting and appeared very pale. Appellant told her he had a crushing pain in his chest, he had trouble breathing, and he had been vomiting all night.² French told him that there was nothing she could do, and that he would have to wait until six a.m. because there was no one at Clinical Services. She told appellant to let her know if he got worse.

Appellant lay in bed for another hour; the chest pain got worse.³ He asked Bernal to go back and get French again. She showed up about five minutes later with the shift commander, Sergeant Barrett. Bernal told Barrett that appellant was having a heart attack. Appellant told Barrett he was having chest pain and might be having a heart attack. Barrett told appellant there was nothing he could do for him. Barrett stated there was no one at Clinical Services, it would take an hour to get the van warmed up, and it was snowing outside. Barrett offered appellant an antacid, which he declined. Appellant testified that Barrett told him: "Just don't die on my shift. It's too much paper work." Appellant's App., Vol. I at 103.

Sometime later, French told appellant she had spoken to someone about his situation, who had told her to give him two Tylenol. She gave him the Tylenol and told him that he could see a physician's assistant at six a.m.

Appellant arrived at the infirmary at six a.m. There, he told nurse Renee Huber that he had chest pain and couldn't breathe. She told him that he had the flu and that there was nothing she could do for him until the physician's assistant arrived at 8:00 a.m. Huber made the following notes after examining appellant:

C/O throat pain, nausea & vomiting. States he's been throwing up all night & now having dry heaves.

Temp. 96.2 Pulse 76 Resp. 18 B/P 110/68

Lungs clear. Skin warm & dry. Had dry heave episode in clinic expelling clear fluid. States that he had sweats all night & unable to sleep. States he was having [a lot] of throbbing pressure pain in chest and throatburning sensation. Unable keep [illegible] or Tylenol down.

Appellant's App., Vol. II at 335.

Huber spoke to P.A. Roy Havens at approximately 8:00 a.m. Huber testified that she read Havens the above notes, including the reference to "throbbing pressure pain in chest and throat." Havens testified, however, that Huber never mentioned chest pain to him over the telephone. If she had, he said, he would have called an ambulance immediately.

Based on the information he received from Huber, Havens ordered Huber to give appellant a shot of Phenergan. She gave him the shot and at Havens' instruction, ordered a lay-in for the rest of the day. Appellant stayed in bed until the next day, January 24th. He testified he felt so bad that he thought he was dying.

The next day, the infirmary approved another 24 hour lay-in. Appellant was told that he would be seen at noon or 1:00 p.m. Appellant arrived at the infirmary at 1:00 p.m. He told the nurse there that his chest was killing him, he couldn't breathe, and that the pain had traveled into his arms.

P.A. Quackenbush arrived and administered an EKG. He told appellant there had been some changes in his heart. He gave appellant nitroglycerin and ordered an ambulance. Appellant was taken to St. Thomas More Hospital and later to Parkview Hospital, where it was determined that he had suffered a major heart attack.

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Appellant asserts that after he returned from Parkview, appellee Steve Ruiz forced him to climb stairs, in violation of his doctor's orders, which caused him further chest pain and a return to the hospital.

Appellant thereafter brought this civil rights action against the appellees. In addition to his 1983 claim, he alleged pendent state law claims and a claim for declaratory judgment that Colo. Rev. Stat. 24-10-106(1.5)(a) is unconstitutional. A magistrate judge assigned to the case recommended that summary judgment be granted on all of appellant's 1983 claims, except the claim against Sergeant Barrett. The district court rejected the magistrate judge's recommendation as to Sergeant Barrett and granted summary judgment for appellees on all of appellant's claims.

II.

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review a grant of summary judgment de novo, applying the same standard as the district court. We examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine whether the substantive law was applied correctly, and in so doing we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion. However, where the non moving party will bear the burden of proof at trial on a dispositive issue that party must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to that party's case in order to survive summary judgment.

McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quotations and citations omitted).

III.

A prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 102 (1976). "Deliberate indifference" involves both an objective and a subjective component. The objective component is met if the deprivation is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is sufficiently serious "if it is one that has been diagnosed by a physician as mandating treatment or one that 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) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (further quotation omitted)). The subjective component is met if a prison official "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837.

1. Nancy French

In his report and recommendation dated February 9, 1999, the magistrate judge recommended that summary judgment be granted in favor of all of the appellees, with the exception of Joseph Barrett. Appellant filed timely objections to the magistrate judge's recommendations. In these objections, however, he did not contest the magistrate judge's recommendations that summary judgment be granted in favor of appellee Nancy French. For this reason, under our "firm waiver rule," he is barred from challenging the district court's order granting summary judgment to French on his Eighth Amendment claim. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999); United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996). We therefore affirm summary judgment in favor of French.

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2. Joseph Barrett

Appellant asserts that appellee Joseph Barrett unconstitutionally delayed his receipt of medical treatment. Although Barrett disclaims any recollection of the events, the following reasonable inferences concerning his conduct may be drawn from the testimony of other witnesses for purposes of summary judgment consideration. Barrett observed appellant at a time when he was very pale, sweating and had been vomiting. Both appellant and Zack Bernal, appellant's...