GARRETT v C.A. STRATMAN, M.D
FILED
United States Court of Appeals
Tenth Circuit
JUN 20 2001
PATRICK FISHER
Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JONATHAN T. GARRETT, No. 00_1028
Plaintiff _ Appellee,
v.
C.A. STRATMAN, M.D., Chief of
Medical Services, ADX_USP, Florence,
Colorado,
Defendant _ Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97_Z_1217)
Dennis W. Hartley, Colorado Springs, Colorado, for Plaintiff_Appellee.
Michael E. Hegarty (Thomas L. Strickland, United States Attorney, Kathleen L.
Torres, Assistant United States Attorney, with him on the briefs), Denver,
Colorado, for Defendant_Appellant.
Before TACHA, Chief Judge, LUCERO, Circuit Judge, and BROWN, District
Judge.(1)
LUCERO, Circuit Judge.
Jonathan T. Garrett, a federal inmate, brought this Bivens(1) suit against C.A.
Stratman, alleging denial of medical care in violation of the Eighth Amendment.
The district court denied Stratman's motion for summary judgment on the matter
of qualified immunity and granted Garrett's motion for additional discovery
pursuant to Federal Rule of Civil Procedure 56(f). We conclude that we lack
jurisdiction and dismiss Stratman's appeal of those rulings.
I
Garrett is serving a life sentence at the United States Pentitentiary
Administrative Maximum Facility ("ADX") in Florence, Colorado. He alleges
denial of medical care in violation of the Eighth Amendment by a number of
parties, including appellant.(2) Garrett's shoulder was injured during a prison yard fight on June 14, 1995. According to the complaint, his condition was ignored
until August 25, 1995, when the shoulder injury was diagnosed by Dr. Jere
Sutton, an orthopedic consultant. Although Dr. Sutton recommended
reconstructive surgery, appellant was not transferred to the United States Medical
Center for Federal Prisoners in Springfield, Missouri, for consultation with an
orthopedic surgeon until May 1996, eleven months after the injury. Garrett
alleges that "by that time, . . . proper medical treatment . . . had been so delayed
that the stabilization and reconstructive surgery was not able to be performed
with any degree of success that allowed [him] to obtain maximum medical benefit
for his severe shoulder injury." (Appellant's App. at 138 (Complaint).) The
eleven_month delay, according to the complaint, caused Garrett physical and
mental pain and suffering as well as severe disability.
Stratman, a practicing physician for more than thirty years, was the
Clinical Director at ADX during the relevant time period. In his complaint,
Garrett alleges that Stratman "repeatedly told the Plaintiff that treatment for his
injury would be forthcoming; however, no treatment occurred." (Id. at 141.)
This, according to Garrett, amounted to deliberate indifference to his known
medical needs in violation of the Eighth Amendment.
(1) The Honorable Wesley E. Brown, Sr., Senior District Judge of the United
States District Court for the District of Kansas, sitting by designation.
(1) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
(2) Garrett initially sued six defendants. The district court dismissed four
parties, concluding that Garrett's claims against them were frivolous. A fifth
defendant, George Klingner, was dismissed for lack of personal jurisdiction. In a
related appeal, we affirmed that dismissal.
Stratman submitted an affidavit in which he attested that although he saw
Garrett "on numerous occasions for various medical complaints" and "began the
process to attempt to have Mr. Garrett transferred to Springfield for surgery," he was "advised . . . that the transport must be delayed until specifically directed by
the designator's office to transport." (Id. at 51?52.) According to Stratman,
"[a]s Clinical Director at the ADX, I could merely recommend transfer to a
medical center for treatment. I did not have the authority to order an immediate
transfer or to have the surgery conducted locally." (Id. at 52.) Materials
submitted by Stratman on appeal state that one of his duties as clinical director
was to "ensure that . . . [e]very effort is made to return the inmate to the
institution or to transfer him/her to a Medical Referral Center as early as the
patient's condition allows." (Appellant's Br. Attach. 4 at 4 (Federal Bureau of
Prisons Program Statement 6000.05).) Also submitted with the summary
judgment motion were fifty_four pages of Garrett's medical records, a large
number of which were reviewed and initialed contemporaneously by Stratman,
that show that Garrett made a number of medical visits regarding his shoulder
pain while his transfer was pending.
Stratman moved for summary judgment, arguing that he was entitled to
qualified immunity.(3) As part of his response, Garrett's counsel submitted an
affidavit requesting that the motion be denied to allow additional discovery under
(3) Stratman initially moved to dismiss the complaint for failure to state a
claim upon which relief could be granted, Fed. R. Civ. P. 12(b)(6), but because
matters outside the complaint were presented to the courti.e., affidavits and
other evidenceStratman's motion to dismiss was treated as one for summary
judgment and disposed of under Fed. R. Civ. P. 56.
Federal Rule of Civil Procedure 56(f). The district court adopted a magistrate
judge's recommendation to deny summary judgment and grant Garrett's request
for additional discovery. On appeal, Stratman challenges the district court's
denial of summary judgment on the grounds that Garrett (1) "did not allege, or
submit any evidence, that Stratman was responsible for the delay in [his]
transfer," and (2) "failed to submit any evidence that the delay in surgery caused
any harm." (Appellant's Br. at 1?2 (statement of the issues).) He states that
"[s]ince Garrett did not allege that Dr. Stratman had any authority to effectuate
his transfer, or submit any evidence in that regard, under Garrett's version of the
facts, Dr. Stratman did not violate clearly established law." (Id. at 4 (internal
quotation omitted).) Finally, Stratman argues (3) that the district court erred by
granting Garrett's Rule 56(f) motion for additional discovery.
II
The Eighth Amendment states that the federal government shall not inflict
cruel and unusual punishments. The Supreme Court has held that an inmate's
rights under the amendment may be violated by a prison official's failure to
prevent harm. Farmer v. Brennan, 511 U.S. 825, 833?34 (1994). "Having
incarcerated persons with demonstrated proclivities for antisocial criminal, and
often violent, conduct, having stripped them of virtually every means of self_
protection and foreclosed their access to outside aid, the government and its
officials are not free to let the state of nature take its course." Id. at 833
(quotation and brackets omitted). A prison official violates an inmate's clearly
established Eighth Amendment rights if he acts with deliberate indifference to an
inmate's serious medical needs_if he "knows of and disregards an excessive risk
to inmate health or safety." Id. at 837; Sealock v. Colorado, 218 F.3d 1205, 1209
(10th Cir. 2000).
To demonstrate a violation, an inmate must satisfy both objective and
subjective elements. "The objective component is met if the deprivation is
sufficiently serious." Sealock, 218 F.3d at 1209 (quotation omitted). "[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.'"
Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quoting Hunt v.
Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)); see Sealock, 218 F.3d at 1209.
The subjective component_deliberate indifference_is met if the prison official
both was "aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference."
Farmer, 511 U.S. at 837.(4)
(4) Implicit in this formulation is that the official must have in fact played a
role in the challenged conduct. We have recently held that a prison medical
professional who serves "solely . . . as a gatekeeper for other medical personnelcapable of treating the condition" may violate an inmate's Eighth Amendment
rights if he "delays or refused to fulfill that gatekeeper role." Sealock, 218 F.3d
at 1211. In such a case, the standard deliberate indifference test applies. Id. at
1211_12.
During oral argument, Garrett's counsel conceded that a mere delay in
treatment, without more, could not constitute deliberate indifference. The cases
support that proposition. Although a delay in treatment is a relevant
consideration, Oxendine, 241 F.3d at 1278; Sealock, 218 F.3d at 1210, the
ultimate finding of deliberate indifference necessarily requires findings that the
prison official was aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists and that he drew that inference.
Whether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence, cf. [J.
Hall, General Principles of Criminal Law 118 (3d ed. 1982)]
(cautioning against "confusing a mental state with proof of its
existence"), and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious. Cf. [1 W. LaFave & A. Scott, Substantive Criminal Law
§ 3.7, at 335 (1986)] ("[I]f a risk is obvious, so that a reasonable
man would realize it, we might well infer that [the defendant] did in
fact realize it; but the inference cannot be conclusive, for we know
that people are not always conscious of what reasonable people
would be conscious of").
Id. at 842; see Oxendine, 241 F.3d at 1276. Finally, a delay in medical care
"only constitutes an Eighth Amendment violation where the plaintiff can show
that the delay resulted in substantial harm." Oxendine, 241 F.3d at 1276
(quotation omitted). We have held that the substantial harm requirement may be
satisfied by lifelong handicap, permanent loss, or considerable pain. Id. at 1278
("In addition, the delay in seeking specialized treatment apparently caused
Oxendine substantial harm due to the fact that a specialist was not obtained until after a substantial portion of the reattached finger had already been lost to decay,
and because Oxendine experienced considerable pain while the finger continued
to rot."); Sealock, 218 F.3d at 1210; see also Estelle v. Gamble, 429 U.S. 97, 104
(1976) ("We therefore conclude that deliberate indifference to serious medical
needs of prisoners constitutes the `unnecessary and wanton infliction of pain'
proscribed by the Eighth Amendment." (quoting Gregg v. Georgia, 428 U.S. 153,
173 (1976))).
Under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 395 (1971), damages may be obtained for "injuries
consequent upon a violation" of the Eighth Amendment by federal officials. See
Farmer, 511 U.S. at 831. We have recently reiterated, "[a]lthough actions for
damages provide an important remedy for individuals injured by governmental
officials' abuse of authority, such actions sometimes subject officials to costly
and harassing litigation and potentially inhibit officials in performing their
official duties." Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001) (citing
Anderson v. Creighton, 483 U.S. 635, 638 (1987); Harlow v. Fitzgerald, 457 U.S.
800, 814 (1982)). The doctrine of qualified immunity accommodates this
conflict: it "is intended to protect the public interest by encouraging public
officials to act independently and without fear of the consequences if there is no
violation of clearly established rights." 15A Charles Alan Wright et al., Federal
Practice and Procedure § 3914.10, at 651 (1992); see also Gross, 245 F.3d at 1155. When qualified immunity is asserted as a defense, the plaintiff must show
that "(1) the defendants' actions violated a constitutional or statutory right; and
(2) the right was clearly established and reasonable persons in the defendants'
position would have known their conduct violated that right." Cruz v. City of
Laramie, 239 F.3d 1183, 1187 (10th Cir. 2001); see Behrens v. Pelletier, 516
U.S. 299, 305 (1996); Harlow, 457 U.S. at 818 ("We therefore hold that
government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known."). Although a question regarding whether a given constitutional or
statutory right was "clearly established" at the time the defendant acted presents a
"purely legal question," Siegert v. Gilley, 500 U.S. 226, 232 (1991), resolution of
qualified immunity may in some instances require a "fact_related . . .
determination," Johnson v. Jones, 515 U.S. 304, 307 (1995).
Supreme Court authority "makes clear" that qualified immunity "is meant
to give government officials a right, not merely to avoid `standing trial,' but also
to avoid the burdens of `such pretrial matters as discovery, as inquiries of this
kind can be peculiarly disruptive of effective government.'" Behrens, 516 U.S. at
308 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). As a result,
although we generally lack jurisdiction to review denials of summary judgment in
other contexts, Mick v. Brewer, 76 F.3d 1127, 1133 (10th Cir. 1996) (citing
Wilson v. Meeks, 52 F.3d 1547, 1551 (10th Cir. 1995)), we can review certain
denials when they involve qualified immunity. Thus, we determine whether we
have jurisdiction over any portions of this appeal.
A
Subject matter jurisdiction can not be waived. Although appellee has
ignored and appears to concede it, we have a "special obligation to satisfy"
ourselves of appellate jurisdiction. Bender v. Williamsport Area Sch. Dist., 475
U.S. 534, 541 (1986) (quotation omitted); see Tuck v. United Servs. Auto Ass'n,
859 F.2d 842, 844 (10th Cir. 1988).(5) In this case, appellant seeks review of the
district court's denial of summary judgment by availing himself of our
jurisdiction to review final decisions of the district courts, 28 U.S.C. § 1291.
"A district court's denial of a defendant's summary judgment motion based
on qualified immunity is an immediately appealable `collateral order' when the
issue appealed concerns whether certain facts demonstrate a violation of clearly established law." Gross, 245 F.3d at 1156 (citing Mitchell, 472 U.S. at 527?28).(6)
At one time the law of this Circuit was that denials of summary judgment in the
qualified immunity context were always appealable under the collateral order
doctrine,(7) but the Supreme Court abrogated that rule in Johnson v. Jones. The
Court stated:
We now consider the appealability of a portion of a district
court's summary judgment order that, though entered in a "qualified
immunity" case, determines only a question of "evidence
sufficiency," i.e., which facts a party may, or may not, be able to
prove at trial. This kind of order, we conclude, is not appealable.
That is, the District Court's determination that the summary judgment
record in this case raised a genuine issue of fact concerning
petitioners' involvement in the alleged beating of respondent was not
a `final decision' within the meaning of the relevant statute.
515 U.S. at 313. Johnson v. Jones thus establishes a clear rule of no jurisdiction
for factual, "I didn't do it" cases. 15A Wright et al., supra, § 3914.10, at 195
(2000 Supp.).
The rule has been restated a number of times by this Court, most recently
in Gross, 245 F.3d at 1156: "Courts of appeals clearly lack jurisdiction to review
summary judgment orders deciding qualified immunity questions solely on the
(5)
Federal courts are courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute, which is not
to be expanded by judicial decree. It is to be presumed that a cause
lies outside this limited jurisdiction, and the burden of establishing
the contrary rests upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (internal citations
omitted).
(6) A collateral order may be appealable as a final decision if the order
"`[1]conclusively determine[s] the disputed question, [2]resolve[s] an important
issue completely separate from the merits of the action, and [3] [is] effectively
unreviewable on appeal from a final judgment.'" Johnson v. Jones, 515 U.S. at
310 (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 144 (1993)).
(7) See Austin v. Hamilton, 945 F.2d 1155, 1157, 1162_63 (10th Cir. 1991).
basis of evidence sufficiency_`which facts a party may, or may not, be able to
prove at trial.'" Id. (quoting Johnson v. Jones, 515 U.S. at 313). "In applying
the qualified immunity standard, the Supreme Court has directed that appellate
courts may not review a district court's resolution of disputed facts, but may
review only purely legal determinations." Cruz, 239 F.3d at 1187.(8) We "must
scrupulously avoid second_guessing the district court's determinations regarding
whether [plaintiff] has presented evidence sufficient to survive summary
judgment." Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997).
A corollary of the rule sanctioning review of abstract legal questions is that
when the material facts are undisputed, or when the plaintiff's allegations are
taken as true, denial of summary judgment on qualified immunity resolves an
abstract issue of law and is immediately appealable. See Benefield v. McDowall,
241 F.3d 1267, 1270 (10th Cir. 2001); Johnson v. Martin, 195 F.3d 1208, 1214?15 (10th Cir. 1999); Clanton, 129 F.3d at 1153; Foote v. Spiegel, 118 F.3d
1416, 1422 (10th Cir. 1997). Another corollary is that when a
district court conclude[s] issues of material fact exist without making
explicit factual findings, we must review the record to extract the
facts the district court likely relied on in reaching its conclusion. If
we determine the district court's conclusion rests on findings of
evidence sufficiency, we must dismiss for lack of jurisdiction.
Gross, 245 F.3d at 1157 (internal citation omitted); see Armijo v. Wagon Mound
Pub. Schs., 159 F.3d 1253, 1259 (10th Cir. 1998).(9)
Prior to resolution of qualified immunity, "appellate jurisdiction is invoked
when a defendant . . . is faced with discovery that exceeds that narrowly tailored
to the question of qualified immunity." Lewis v. City of Fort Collins, 903 F.2d
752, 754 (10th Cir. 1990) (quotation and brackets omitted). As we said in Maxey
v. Fulton, 890 F.2d 279, 282 (10th Cir. 1989) (quoting Lion Boulos v. Wilson,
834 F.2d 504, 507 (5th Cir. 1987)),
[q]ualified immunity does not shield government officials from all
discovery but only from discovery which is either avoidable or
(8) The quintessential "purely legal determination" fit for appellate
resolution after a denial of summary judgment is whether a constitutional right
was clearly established at the time the facts giving rise to the case occurred. See,
e.g., Cruz, 239 F.3d at 1187 (holding that jurisdiction existed to review the
district court's determination that a right was clearly established); McFarland v.
Childers, 212 F.3d 1178, 1185 (10th Cir. 2000) (same); Johnson v. Martin, 195
F.3d 1208, 1215 (10th Cir. 1999) (same); Malik v. Arapahoe County Dep't of
Soc. Servs., 191 F.3d 1306, 1314_15 (10th Cir. 1999) (same); Foote v. Spiegel,
118 F.3d 1416, 1422 (10th Cir. 1997) (same); Wilson, 98 F.3d at 1252 (same);
Mick, 76 F.3d at 1133 (same). Whether a right is clearly established is exactly
"the kind of abstract legal issue[] separate from the fact_related issues that will
arise at trial" required to invoke the Court's final decision jurisdiction.
McFarland, 212 F.3d at 1185 (quoting Johnson v. Martin, 195 F.3d at 1214).
(9) Once jurisdiction over the abstract issue of law is established, the Court,
in its discretion, may exercise pendent appellate jurisdiction to review other
issues. See Wilson, 98 F.3d at 1252. But cf. Johnson v. Jones, 515 U.S. at 318
(assuming that pendent appellate jurisdiction exists but stating that "it seems
unlikely that courts of appeals would do so in a case where the appealable issue
appears simply a means to lead the court to review the underlying factual
matter"); Cruz, 239 F.3d at 1187 (declining to exercise pendent jurisdiction and
stating that the Court "lack[ed] authority to the extent that Defendants seek
interlocutory review of the district court's ruling that genuine disputes of fact
precluded summary judgment based on qualified immunity" (quotation omitted));
Mick, 76 F.3d at 1133.
overly broad. Discovery designed to flesh out the merits of a
plaintiff's claim before a ruling on the immunity defense or
discovery permitted in cases where the defendant is clearly entitled
to immunity would certainly fall within this category. Immediate
appeal would lie from these orders . . . .
On the other hand, a discovery order is not immediately appealable
when the defendant's immunity claim turns at least partially on a
factual question; when the district court is unable to rule on the
immunity defense without further clarification of the facts; and
which are narrowly tailored to uncover only those facts needed to
rule on the immunity claim are neither avoidable or overly broad.
Id. at 282?83 (quoting Lion Boulos, 834 F.2d at 507?08). Immediate review of
discovery orders before a district court rules on qualified immunity serves to
protect government officials asserting immunity "from the costs associated with
trial [as well as] the other burdens of litigation, which include the burdens of
broad reaching discovery." Lewis, 903 F.2d at 754 (quotations omitted).
B
In his motion for summary judgment, Stratman argued that Garrett's
medical need was not "sufficiently serious" because in his judgment, the injury
"should be given time to heal naturally" (Appellant's App. at 38), that Garrett
"failed to show that Defendant Stratman had the required culpable state of mind"
(id. at 39), and that Garrett's "allegations are lacking any evidence of `substantial
harm' caused by the alleged delay" (id. at 41). Stratman objected to the
magistrate judge's recommendation on the bases that Garrett "failed to show Dr.
Stratman acted intentionally or with deliberate indifference when he allegedly
failed to provide adequate treatment to plaintiff" (id. at 160) and that Garrett "has
not come forward with any admissible evidence that tends to prove that he
suffered `substantial harm' from the alleged delay in surgery" (id. at 158).
The district court concluded that a genuine issue of material fact existed as
to whether Stratman acted with deliberate indifference:
The fact that the surgery took place 11 months after the injury raises,
at a minimum, a dispute regarding the intent of defendant Stratman.
Defendant Stratman states that he has no control over when the
approval of the transfer to the Missouri facility is authorized. If this
was a dispute as to a matter of a couple of weeks this Court would
agree, but 11 months is different. A delay of 11 months could be
deliberate indifference. Dr. Stratman could have done something to
speed up the transfer process. A trier of fact can properly evaluate
whether this failure to act by defendant Stratman constitutes
deliberate indifference.
(Id. at 169.)(10) Also in genuine dispute, concluded the district court, was the
existence of substantial harm: "Plaintiff has alleged permanent injury to his arm
and shoulder, and this alleged injury satisfies the `substantial harm'
requirement." (Id. at 168.)
The first two issues raised on appeal_whether the district court erred in
denying summary judgment on the grounds that Garrett "did not allege, or submit
any evidence, that Stratman was responsible for the delay in his transfer" and that
(10) In his recommendation, the magistrate judge stated, "A review of the
record indicates that a genuine issue of material fact exists concerning whether
Stratman acted with deliberate indifference toward Plaintiff by not seeking more
expediation and qualified medical attention for the Plaintiff." (Appellant's App.
at 151.)
Garrett "failed to submit any evidence that the delay in surgery caused any
harm"_strike us as precisely the kind of "evidence sufficiency" issues we must
decline to address at this juncture. Our review of the district court's order
confirms this impression.
Stratman claims that he may immediately appeal the district court's denial
of summary judgment "because the district court cited no record evidence
supporting its conclusions that (1) Garrett suffered substantial injury or, (2) there
is a dispute regarding the intent of defendant Stratman and that Dr. Stratman
could have done something to speed up the transfer process." (Appellant's Br. at
4?5 (internal quotations omitted).) Contrary to Stratman's contention, the district
court points to specific facts_Garrett's shoulder injury(11) and the eleven_month
delay(12)_regarding Garrett's substantial injury and Stratman's intent. In addition,
the district court could have referenced Stratman's knowledge of the following to
show deliberate indifference: Garrett's ongoing pain,(13) Dr. Jere Sutton's recommendation for reconstructive surgery,(14) the surgical referral request
prepared by Stratman in which he indicated that "travel should be within two
weeks and/or condition warrants direct transfer,"(15) and the delay in transfer.(16)
The court could have relied on the same evidence to find a genuine issue of fact
regarding substantial harm.
With respect to its conclusion regarding Stratman's personal
participation_whether he could have done something to speed up the transfer
process_the district court may have relied on Stratman's own affidavit, in which
he attested that he was the Clinical Director at ADX; that he saw Garrett on
"numerous occasions for various medical complaints," including the shoulder
injury; and that although he could not unilaterally order an immediate transfer, he
was empowered to recommend transfer to a medical center for treatment.(17)
Having concluded that "[t]he district court could . . . have identified disputed
facts concerning" what Stratman could have done to hasten the transfer, we are
without jurisdiction to delve further into the record to "assess[] . . . the district
(11) (Id. at 50_52 (Stratman affidavit); id. at 53_107 (Garrett's medical
records, submitted with Stratman's motion for summary judgment).)
(12) (Id. at 51_52 (Stratman affidavit).)
(13) (Id. at 53_90 (Garrett's medical records from June 14, 1995 to April 30,
1996, a large number of which were reviewed and initialed contemporaneously by
Stratman); id. at 99 (consultation sheet, in which Stratman notes that the shoulder
injury "caus[ed] pain with arm motion or cuffing in the rear"); id. at 99
(consultation sheet, in which the orthopedic consultant observes that Garrett "has
difficulty in range of motion and pain because of the condition").
(14) (Id. at 99.)
(15) (Id. at 100 (Medical/Surgical and Psychiatric Referral Request prepared
by Stratman and approved by the warden).)
(16) (Id. at 52 (Stratman affidavit, in which he attests, "Between late August
1995 and May 9, 1996, I responded to both verbal and written inquiries from
inmate Garrett about the recommended surgical repair of his left shoulder.").)
(17) (Id. at 51.)
court's evidentiary conclusions." Gross, 245 F.3d at 1157?58.
Stratman attempts to secure jurisdiction by stating that "[s]ince Garrett did
not allege that Dr. Stratman had any authority to effectuate his transfer, or submit
any evidence in that regard, under Garrett's version of the facts, Dr. Stratman did
not violate clearly established law." (Appellant's Br. at 4 (quotation omitted).)
It is true that "[a] district court's denial of a defendant's summary judgment
motion based on qualified immunity is an immediately appealable `collateral
order' when the issue appealed concerns whether certain facts demonstrate a
violation of clearly established law." Gross, 245 F.3d at 1156. Stratman did not
make this argument in his initial motion for summary judgment, and in his
objections to the magistrate judge's recommendation his argument was merely an
evidentiary one_that there was no question of fact as to whether he "did
anything to interfere with or hinder plaintiff's treatment." (Appellant's App. at
160.)(18) The district court took a different view of the matter, concluding that there was a genuine issue of fact as to whether Stratman "could have done
something to speed up the transfer process," notwithstanding evidence that he
could not have unilaterally ordered an immediate transfer. (Id. at 169.) As we
have decided above, this conclusion could have been supported by evidence in
the record, and we are without jurisdiction to scrutinize the district court's
conclusion beyond taking that quick look.
At no time during the district court proceedings did Stratman argue that it
was not clearly established that a prison official who could recommend, but not
order, a specific action could violate an inmate's Eighth Amendment rights. The
issue was not raised or addressed below, and we will not consider it on appeal.(19)
(18) Stratman's objection regarding his lack of authority, quoted in total
below, resounded of an unreviewable "I didn't do it" issue.
Moreover, absolutely nothing in the record suggests that Dr.
Stratman did anything to interfere with or hinder plaintiff's
treatment. Furthermore, Dr. Stratman cannot be held responsible for
the delay in transferring plaintiff for surgery as he states in his
declaration that he did not have the authority to order the transfer
immediately or to order that the surgery be performed locally. In his
declaration, Dr. Stratman states that the Medical Designator is
responsible for determining when an inmate is transferred toSpringfield, Missouri, for treatment ( 8) (See also Declaration of
George Klingner, M.D., 5). In fact, the Medical Designation and
Transportation Office specifically ordered the plaintiff not to be
transferred until it specifically authorized it. (See Exhibit G to
Defendants' Motion to Dismiss) (Neither does plaintiff suggest that
Dr. Stratman should have provided any different treatment in the
interim before surgery.) Plaintiff has not offered any evidence to
suggest that Dr. Stratman was involved in or had any input as to
when the surgery should be performed, or when the transfer should
occur. Plaintiff bears the burden of showing that Dr. Stratman
should have done more, and plaintiff has failed to do so.
(Id. at 160_61.)
(19) Although the section of Stratman's brief entitled "This Court's
Jurisdiction," characterizes the appeal as one involving an abstract question of
law (Appellant's Br. at 4), this characterization is betrayed by the remainder of
the brief, which focuses on evidence sufficiency and the discovery matterdiscussed below. Stratman himself summarizes the argument in this fashion:
"Garrett Failed to Meet His Burden of Submitting Evidence Creating a Genuine
Issue of Material Fact Regarding Dr. Stratman's Defense of Qualified Immunity."
(Id. at 21.)
We decline appellant's invitation, implicit in the jurisdictional portion of
his brief, that we contort his arguments to create appellate jurisdiction at this
stage in the litigation.
Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992); see
Behrens, 516 U.S. at 313.
C
Stratman challenges the district court's decision to permit discovery,
ostensibly under Federal Rule of Civil Procedure 56(f). Rule 56(f) states:
Should it appear from the affidavits of a party opposing the motion
that the party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
On appeal, Stratman argues that the affidavit submitted by Garrett's attorney was
insufficient to establish a need for additional discovery.(20) Had the district court
refused or continued the application for summary judgment under Rule 56(f), its
decision to permit discovery would be immediately appealable. Lewis, 903 F.2d
at 758?59. The district court decided as an initial matter, however, to deny summary judgment on qualified immunity because genuine issues of fact existed
regarding intent, personal participation, and Garrett's injury. As a result, the
policy supporting immediate appeals over discovery orders in the qualified
immunity context_to spare government officials burdensome litigation prior to
the district court's resolution of qualified immunity_is not implicated, and the
discovery order is not necessarily immediately appealable. See Maxey, 890 F.2d
at 282 (holding that "immediate appeal would lie" for certain discovery orders
"before a ruling on the immunity defense") (quotation omitted).
We therefore look to see if Stratman's discovery challenge meets the
requirements for appeal under the collateral order doctrine. As stated above, a
collateral order may be immediately appealable under 28 U.S.C. § 1291 if it
(1) conclusively determines the disputed question, (2) resolves an important issue
separate from the action's merits, and (3) is effectively unreviewable on appeal
from a final judgment. Because Stratman gives no reason why his appeal of the
district court's discovery order meets these requirements, we do not exercise
jurisdiction over it. See Stringfellow v. Concerned Neighbors in Action, 480
U.S. 370, 375 (1987) (stating that "a party seeking appeal must show that all
three requirements are satisfied); In re Simons, 908 F.2d 643, 645 (10th Cir.
1990) (same) (quoting In re Magic Circle Energy Corp., 889 F.2d 950, 954 (10th
Cir. 1989)).
III
(20) "[I]n response to a summary judgment motion based on qualified
immunity, a plaintiff's 56(f) affidavit must demonstrate how discovery will
enable them to rebut a defendant's [evidence]." Lewis, 903 F.2d at 758
(quotation omitted).
The appeal is DISMISSED.
00_1028, Garrett v. Stratman
TACHA, Chief Judge, dissenting
I respectfully dissent. I have searched the record for genuine issues of
material fact relevant to finding that Dr. Stratman was deliberately indifferent to
Mr. Garrett's admittedly serious medical need. I find none. Although a delay in
the provision of medical care may violate the Eighth Amendment, Hunt v.
Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999), the delay must be more than a
matter of medical judgment and it must be causally connected to the defendant's
conduct. The record instead shows that Mr. Stratman pursued an ongoing course
of treatment and medication that eventually anticipated surgical treatment.
Regular notations in Mr. Garrett's medical records describe various treatments,
consultations, and prescriptions directed at treating and relieving the shoulder
injury. After submitting the surgical referral request, Dr. Stratman documented
the need for surgery and the impending surgical transfer in nearly every notation.
Nothing in the record even circumstantially suggests that Dr. Stratman is
responsible for any deliberate delay in the surgical treatment.
Mr. Garrett disagrees with Dr. Stratman's decision to wait seven weeks
before referring him to an orthopedic specialist, but this delay is clearly a result
of Dr. Stratman's medical judgment. Mr. Garrett's mere disagreement with his
doctor regarding the early weeks of his treatment does not constitute deliberate
indifference. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) ("[A]
difference of opinion does not support a claim of cruel and unusual
punishment."). The Supreme Court has characterized deliberate indifference as a
"stringent standard of fault," Bd. of County Comm'rs v. Brown, 520 U.S. 397,
410 (1997), and has cautioned that a defendant's conduct must be more than
negligent to constitute cruel and unusual punishment under the Eighth
Amendment: "Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. 97, 106
(1976). The delay between the initial consultation with Dr. Stratman on June 22,
1995 and the referral to the orthopedic specialist, Dr. Sutton, on August 10, 1995
is fully explained by the undisputed statement of Dr. Stratman: "In my medical
judgment, this type of injury should be given time to heal naturally. If that does
not occur within six to eight weeks, a referral to a consultant orthopedic
specialist is in order." Dr. Stratman's referral to Dr. Sutton was entirely
consistent with this statement and nothing in the record contradicts his medical
judgment.
Furthermore, less than two weeks after Dr. Sutton recommended surgery,
Dr. Stratman submitted a surgical referral request. Dr. Sutton examined Mr.
Garrett on August 25, 1995, and on September 5, 1995, Dr. Stratman completed a
referral form, recommending that Mr. Garrett be transferred for orthopedic
surgery. The eleven days between the orthopedic consultation and the surgical
referral cannot, by any reasonable standard, be deliberate indifference. See
Olson, 9 F.3d at 1477 (holding prison officials were not deliberately indifferent
in waiting eighteen months before providing plaintiff with a specialist and
surgery when plaintiff received different, but appropriate, medical treatment prior
to surgery).
The majority persists in pointing to an eleven_month delay between Mr.
Garrett's injury and his surgery. But this overstates the delay for which Dr.
Stratman is even arguably responsible because, as discussed above, the ten to
eleven weeks between Mr. Garrett's initial visit and submission of the surgical
referral request were a result of Dr. Stratman's medical judgment and cannot be
characterized as a delay. The remaining eight months between submission of the
surgical referral request and the actual transfer are irrelevant because Dr.
Stratman's conduct is not the legal or proximate cause of the eight_month delay
and therefore not the cause of the harm that Mr. Garrett claims resulted from the
delay.
Causation is a necessary element of a § 1983 claim of deliberate
indifference. Daniels v. Gilbreath, 668 F.2d 477, 488 (10th Cir. 1982). Beyond
September 5, 1995, the record contains no facts supporting the barest inference
that Dr. Stratman had any power or authority to expedite Mr. Garrett's transfer.
To the contrary, in his affidavit, Dr. Stratman clearly stated that he had no
authority to order an immediate transfer or even to have the surgery done locally.
Nothing in the record disputes this statement. Instead, the record indicates that
all orders related to the actual transfer came from the "Medical Designations and
Transportation, Central Office" (MDTO) in the Bureau of Prisons' Central Office
in Washington, DC. In fact, the memorandum from the MDTO approving the
surgical referral request explicitly prohibited Mr. Garrett's actual transfer until
authorized by the MDTO.(1)
In short, by any summary judgment standard, see e.g., Jeffries v. Kansas,
147 F.3d 1220, 1228 (10th Cir. 1998) (allowing the nonmovant "wide berth to
prove a factual controversy exists" (internal quotation marks omitted)), the record
contains no facts that even inferentially tie Dr. Stratman to any delay in treatment
other than a seven_week delay based on his medical judgment and an eleven_day
delay in completing a referral form. In all respects, the facts describing Dr.
Stratman's care of Mr. Garrett are consistent with an attentive physician, aware
of and treating a serious medical condition and awaiting a transfer for surgery.
Because nothing in the record supports a finding of deliberate indifference in this
case, I disagree with the majority's decision to dismiss for lack of jurisdiction.
(1) In addition, Dr. Stratman's designation of the transfer as "Routine _
Urgent" in the surgical referral request does not support even an inference that
Dr. Stratman caused the eight_month delay. The fact that Dr. Stratman checked
the option recommending "travel . . . within two weeks and/or condition warrants
direct transfer" does not support the conclusion that Dr. Stratman had authority to
order such a transfer. It merely indicates Dr. Stratman used the authority he had
to secure Mr. Garrett's timely transfer. Although the form does provide an
emergency option, which indicates that time and mode of travel are critical, Dr.
Stratman exercised his medical judgment in prioritizing the urgency of the
transfer. Nowhere in the record is that judgment refuted.