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TIMOTHY R. LOCKABY, Plaintiff-Appellant, v. L. L.
YOUNG; LARRY HAHN; JACK PALMER; CECIL YOUNG; BOB TOMLINSON; TOM LEWIS; DOTTIE
STREET; GENE BROOKS; BRENDA BROOKS; ROBERT BERNARD, Doctor; SHYAMYANT KULKARNI,
Doctor; and GEORGE ROACH, Defendants - Appellees.
UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
42 Fed. Appx. 313; 2002 U.S.
App. Lexis 13400
NOTICE:
RULES OF THE TENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
After examining the briefs and appellate record, this panel has
determined to honor [*315] the request of the parties for a decision on the
briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
This case is therefore ordered submitted without oral argument.
Defendants are employees of the
Oklahoma Department of Corrections (ODC). Plaintiff brought a § 1983 claim,
alleging that they violated his Eighth Amendment rights while he was
incarcerated at the Oklahoma State Reformatory in Granite, Oklahoma, by failing
to provide a safe environment or adequate medical care. His complaint also
raised tort claims under state law.
Plaintiff, appearing pro se, appeals the district court order granting
summary judgment for Defendants. He appears to raise four issues on appeal: (1)
whether the evidence before the district court showed a genuine issue of
material fact, precluding summary judgment; (2) whether the court should have
allowed Plaintiff more time to conduct discovery before granting Defendants'
motion for summary judgment; (3) whether this court should allow Plaintiff to
amend his complaint to state a cause of action arising out of events which
occurred after he filed his complaint; and (4) whether the district court
abused its discretion by not granting Plaintiff's motion for post-judgment
relief. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm the district
court's grant of summary judgment on Plaintiff's § 1983 claims and its denial
of Plaintiff's post-judgment motion. Also, we deny Plaintiff's motion to amend.
We must, however, reverse the district court judgment in part and remand with
instructions to dismiss without prejudice the state tort law claims raised by
Plaintiff.
I. Background
The underlying facts are not
disputed. On March 23, 2000, Plaintiff stepped into an uncovered manhole
located on prison grounds and injured himself. Until moments before his fall,
the manhole had been covered with a piece of three-quarter-inch plywood. The
plywood, however, had been washed away by runoff water from a rainstorm. The
same runoff obscured the hole. A guard noticed the potential danger and shouted
to Plaintiff to look out, but he did not hear the warning in time. The
make-shift manhole cover was replaced by a permanent metal one on March 28,
2000.
After his accident Plaintiff received extensive medical care; he was
treated at the prison medical facility
on numerous occasions and saw several specialists, including an orthopedist, a
urologist, and a neurologist. His doctors prescribed various medications and
treatment programs and conducted numerous tests (x- rays, MRI, and blood and
urine tests) to determine the cause of his ailments. After almost a year,
Plaintiff's doctors determined that he had a spinal injury that would require
surgery to correct. He underwent the prescribed operation on January 25, 2001.
Prior to his surgery, Plaintiff
filed the complaint in this case. The district court referred the matter to a
magistrate judge, who ordered the ODC to submit a Special Report. See Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978). In the same order the magistrate judge prohibited any further
discovery until the Special Report had been filed.
After completion of the Special Report, Defendants filed a Motion to
Dismiss/Motion for Summary Judgment. The magistrate judge entered an order
explaining to Plaintiff that he was required to respond to Defendants' motion
and that his response would have to comply with Rule 56 of the Federal Rules of
Civil Procedure. The order also stated that to defeat Defendants' [*316]motion,
Plaintiff's response would have to be supported by "affidavits and/or
documents to set forth specific facts showing that there is a genuine issue of
material fact to be litigated at the trial." Plaintiff filed a timely and
lengthy response, discussing the facts of the case and providing supporting
documentation. Plaintiff made no argument in his response that he lacked
adequate time to discover information material to his case, nor did he ask for
additional time in which to conduct discovery.
Based on the documents before him, the magistrate judge entered his
Report and Recommendation that Defendants' motion for summary judgment be
granted. The magistrate judge determined that there were no genuine issues of
material fact relating to either of Plaintiff's Eighth Amendment claims. He
found no evidence that the ODC Defendants acted with deliberate indifference to
Plaintiff's health or safety with regard to the conditions that caused
Plaintiff's injury. See Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d
811, 114 S. Ct. 1970 (1994); Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 807
(10th Cir. 1999). Nor did he find any evidence that Defendants acted with
deliberate indifference to Plaintiff's serious medical needs by failing to
provide him with adequate medical care after his fall. See Estelle v. Gamble, 429 U.S. 97, 104-06,
50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Daniels v. Gilbreath, 668 F.2d 477,
481-82 (10th Cir. 1982). The magistrate judge further recommended that the
district court decline to exercise supplemental jurisdiction over the state law
claims.
Plaintiff asked for and received a time extension to file a response to
the Report and Recommendation. In his response he claimed that he had not had
enough time to conduct proper discovery. He also asserted that he intended to
conduct discovery to substantiate his claims (1) regarding Defendants'
administration of, or failure to administer, pain medication and (2) regarding
Defendants' failure to securely cover the manhole. He did not, however, explain
why further discovery would enable him to obtain material information not
already before the court. The Special Report contained copies of Plaintiff's
medical records and his doctor's affidavit; and Plaintiff's own response to
Defendants' summary judgment motion contained incident reports describing the
events surrounding his accident. There appears to be no dispute as to the
facts.
The
district court entered an order adopting the magistrate judge's Report and
Recommendation "in its entirety," but mentioned only the § 1983
claims, not the state law claims, and the judgment simply stated that
"judgment is hereby entered in favor of defendants . . . and against
plaintiff Timothy Lockaby."
Plaintiff filed a Motion for
Reconsideration, in which he again alleged lack of adequate time to conduct
discovery. He claimed that the magistrate judge's earlier order directing the
ODC to prepare the Special Report suspended his discovery efforts, and the
subsequent order advising him of his responsibilities in responding to
Defendants' summary judgment motion was inadequate to inform him that he was
allowed to resume discovery. The district court denied the motion.
2. Analysis
A.
Summary Judgment
The
only argument clearly stated in Plaintiff's brief is that the court did not
allow him to conduct discovery before it granted Defendants' summary judgment
motion. Nevertheless, because we construe the pleadings of pro se parties
liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 [*317](10th Cir. 1991), we
will also address what may be Plaintiff's further claim that summary judgment
was improper even based on the record before the district court.
We review the grant of a motion for summary judgment de novo. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). We apply the same legal standard used by the district court under Rule 56(c) and "examine the record to determine if any genuine issue of material fact was in dispute; if not, the court must decide if the substantive law was correctly applied." Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir. 1988). We examine the factual record in the light most favorable to the non-moving party. Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988). The non-moving party may not, however, rely solely on its pleadings but must set forth specific facts showing that there is a genuine issue for trial with regard to those dispositive matters for which it carries the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
As for Plaintiff's contention
that summary judgment was improper because there was evidence in the record
showing genuine issues of material fact, we agree with the district court's
conclusion that there was no basis shown for Plaintiff's § 1983 claim. We
therefore affirm the district court's decision
for substantially the reasons set forth by the district court in its
order filed November 27, 2001, and by the magistrate judge in his report filed
February 28, 2001. We now turn to Plaintiff's assertion that he is entitled to
relief because the magistrate judge did not allow him to conduct discovery in
order to bolster his argument against summary judgment. A party opposing
summary judgment may be entitled to a delay in proceedings in order to conduct
discovery. See Fed. R. Civ. P. 56(f);
Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th
Cir. 1992). But the party must do more than simply allege that further
discovery is necessary; "the party must demonstrate precisely how
additional discovery will lead to a genuine issue of material fact." Ben
Ezra, Weinstein & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 987 (10th
Cir. 2000).
Here, the contents of Plaintiff's pleadings
on the matter are either inapposite or conclusory, alleging only that if given
more time to conduct discovery, he could obtain the information necessary to
show a genuine issue of material fact. Because Plaintiff failed to explain
adequately how further discovery would have shown the existence of such an
issue, the district court did not err in rejecting his request for more time.
2.
Request to Amend Complaint
In
his opening brief on appeal, Plaintiff expresses his desire to amend his
complaint to include allegations of "retaliatory transportation" and
failure to provide adequate medical care, which relate to the conditions under
which he was transported from the hospital after his back surgery. We decline
this request. An appellate court will not entertain a motion to amend a
complaint not properly raised before the district court. See Tele-Communications, Inc. v. C.I.R., 104
F.3d 1229, 1232 (10th Cir. 1997) (appellate court will not consider an issue
raised for the first time on appeal). Although Plaintiff did complain about his
post-surgery treatment in his response to Defendants' summary judgment motion,
he never moved the court to amend his complaint to include additional claims
arising from the conduct.
3.
Post-judgment Relief
Plaintiff's briefs also appear to challenge the district court's denial
of his [*318] post-judgment motion for relief. Preliminarily, we observe that
although the district court treated Plaintiff's motion as one falling under
Rule 60(b) of the Federal Rules of Civil Procedure, perhaps it was a Rule 59(e)
motion. Which rule is the applicable one depends upon whether the motion was filed
within ten days of the date of judgment. The district court entered its
judgment on July 12, 2001. Thus, the ten-day deadline for filing a timely
motion under Rule 59(e) expired on July 26, 2001. See Fed. R. Civ. P. 6(a).
Although Plaintiff's motion was not stamped by the court clerk until July 31,
2001, the "prisoner mailbox rule" provides that an inmate's pleadings
are deemed filed as of the date on which they are deposited into the
appropriate prison mailing system. See
Houston v. Lack, 487 U.S. 266, 275-76, 101 L. Ed. 2d 245, 108 S. Ct.
2379 (1988); United States v. Warner, 54 F.3d 788, 1995 WL 307586, at *2 (10th
Cir. 1995) (unpublished decision) (holding that "prisoner mailbox rule" is applicable to
filings in district court proceedings). Plaintiff's post-judgment motion
contained a "certificate of mailing" indicating that the document had
been mailed on July 25, 2001--within ten days of the entrance of the judgment.
Such a certificate may have been sufficient to afford Plaintiff the benefit of
the prisoner mailbox rule. See Bridgeforth
v. Gibson, 162 F.3d 1172, 1998 WL
729256, at *4 n.2 (10th Cir. 1998) (unpublished decision).
In
any event, we need not resolve this issue here; both Rule 60(b) and Rule 59(e)
rulings are reviewed for an abuse of discretion. See Campbell, 962 F.2d at 1523 (Rule 59(e)); Campbell v. Bartlett,
975 F.2d 1569, 1580 n.15 (10th Cir. 1992) (Rule 60(b)). Because the district
court properly granted Defendants' summary judgment motion and Plaintiff has
failed to show any additional evidence or circumstances that would undermine
the summary judgment determination, the district court did not abuse its
discretion in denying Plaintiff's motion, however styled. Therefore, we affirm
the district court's denial of Plaintiff's motion for post-judgment relief.
4.
State Tort Claims
Finally, we note an oversight by the district court in entering
judgment. The district court's order adopted the magistrate judge's
recommendations, but both the order and judgment failed to address Plaintiff's
state law claims. The judgment of the district court should be corrected to
dismiss the state tort claims without prejudice. We remand for this purpose.
3. Conclusion
We
AFFIRM the judgment below with respect to Plaintiff's § 1983 claims, but we
REVERSE the judgment with respect to the state law claims and REMAND with
instructions to correct the judgment so that Plaintiff's state law claims are
dismissed without prejudice.
Entered for the Court
Harris L Hartz
Circuit Judge
* This order and judgment is
not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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