Foreman v. Elam

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 6, 2019
• Docket: 19-7020
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 6, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court ASA S. FOREMAN, a/k/a Asa S. Forman,

Plaintiff - Appellant,

v. No. 19-7020 (D.C. No. 6:18-CV-00071-RAW-SPS) TERESA DELORIS ELAM, LPN, Jess (E.D. Okla.) Dunn Correctional Center, in her official and individual capacity; ROBERT RICHARD EDDE, M.D., Jess Dunn Correctional Center, in his official and individual capacity; MICHELLE LEHNUS, Medical Services Administrator, Jess Dunn Correctional Center, in her official and individual capacity; ROBERT CORNEL BALOGH, M.D., Joseph Harp Correctional Center, in his official and individual capacity; JOEL BRENT MCCURDY, M.D., Director of Medical Services for the Oklahoma Department of Corrections, in his official and individual capacity; HEATHER HASENMEYER, , a/k/a Heather Hansmeyer, Physician Assistant at Jess Dunn Correctional Center, in her official and individual capacity; J. MARLAR, M.D., in his official and individual capacity; JONNA PERRY, Case manager at Jackie Brannon Correctional Center, in her official and individual capacity; SGT. DAVID SUMMERS, in his official and individual capacity,

Defendants - Appellees. _________________________________ ORDER AND JUDGMENT* _________________________________

Before LUCERO, O’BRIEN, and CARSON, Circuit Judges. _________________________________

Through counsel, Oklahoma prisoner Asa S. Foreman appeals from the district

court’s Fed. R. Civ. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 civil rights

complaint. Although the complaint purported to set forth numerous claims against

various defendants, on appeal, Foreman challenges only the dismissal of his Eighth

Amendment claims against prison nurse Teresa Elam and prison doctor Robert Edde

regarding treatment he received after suffering a stroke. He therefore has abandoned

all his other claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

The facts underlying the claims against Elam and Edde are sparse. Early in the

morning of April 27, 2016, while Foreman was incarcerated at Jess Dunn

Correctional Center (JDCC), he suffered a stroke. He presented himself to Elam in

the medical unit at approximately 6:45 a.m., reporting “[n]umbness on left side,

slurred speech, [and] having problems with balance” and saying he thought he had a

stroke. Aplt. App. at 73 n.1; see also id. at 80. Elam took his vital signs, which were

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2 good, and she did not believe he had a stroke. She told him to lie down until Edde

arrived at 8:30 a.m.

Foreman returned to his bunk to lie down, but before seeing Edde, he had

another stroke. Another inmate took him back to the medical unit, where Edde

examined him and then had him transported to Lindsay Municipal Hospital. The

physicians at Lindsay referred Foreman to OU Medical Center, but “[a] John Doe,

transportation officer/staff member informed [Foreman] that Defendant Edde had not

given his approval for a trip to OU, after he had been informed that the trip was

needed.” Id. at 74. Foreman therefore returned to JDCC.

There is no indication either Elam or Edde saw Foreman at JDCC after he

returned from Lindsay. Another medical staff member, however, started Foreman on

aspirin, which he alleges is contraindicated for stroke patients. On April 29, he had

another stroke and an aneurysm. He was transported to an emergency room and then

on to St. Johns Medical Center in Tulsa, Oklahoma, where he remained in intensive

care for approximately four days. After his treatment at St. Johns, he was transferred

out of JDCC to another prison.

We review a Rule 12(b)(6) dismissal de novo. Gee v. Pacheco, 627 F.3d 1178,

1183 (10th Cir. 2010). Because Foreman’s district-court filings and appellate brief

were drafted by counsel, we do not afford them the liberal construction we give to

pro se filings. See Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994).

Federal pleading “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

3 “A pleading that offers labels and conclusions or a formulaic recitation of the

elements of a cause of action will not do. Nor does a complaint suffice if it tenders

naked assertions devoid of further factual enhancement.” Id. (brackets, citation, and

internal quotation marks omitted). Instead, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Id. (internal quotation marks omitted). To

establish facial plausibility, the plaintiff must “plead[] factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. “[W]here the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has . . . not shown . . . that the

pleader is entitled to relief.” Id. at 679 (brackets and internal quotation marks

omitted).

“Iqbal establishes the importance of context to a plausibility determination.”

Gee, 627 F.3d at 1185. The Supreme Court has held prison officials’ “deliberate

indifference to serious medical needs of prisoners constitutes the unnecessary and

wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble,

429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted). An Eighth

Amendment claim has two prongs, one objective (the deprivation was sufficiently

serious), and one subjective (the official acted with a culpable state of mind).

See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Self v. Crum, 439 F.3d 1227,

1230-31 (10th Cir. 2006). We assume the averments that Foreman suffered a stroke

plausibly allege the objective prong. See Davis v. Kayira, 938 F.3d 910, 914

4 (7th Cir. 2019) (“Everyone agrees that [the prisoner’s] stroke was an objectively

serious medical condition.”). That leaves the subjective prong.

In a prison-conditions case, the required culpable state of mind is “deliberate

indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation

marks omitted). To be liable, an official must “know[] of and disregard[] an

excessive risk to inmate health or safety; the official must both be 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.” Id. at 837. In the context of medical

care, negligent diagnosis or treatment is not enough to demonstrate a constitutional

violation. See Estelle, 429 U.S. at 106; Self, 439 F.3d at 1230. “[T]he subjective

component is not satisfied, absent an extraordinary degree of neglect, where a doctor

merely exercises his considered medical judgment.” Self, 439 F.3d at 1232. Further,

“an official’s failure to alleviate a significant risk that he should have perceived but

did not, while no cause for commendation, cannot under our cases be condemned as

the infliction of punishment.” Farmer, 511 U.S. at 838.

Foreman’s claim against Elam apparently is based on her failure to

immediately treat him for a stroke on the morning of April 27. But the complaint

establishes that Elam examined Foreman, even if only briefly, that his vital signs

were good, and that she did not believe he had suffered a stroke. Thus, Elam did not

completely deny care or demonstrate “an extraordinary degree of neglect.” Self,

439 F.3d at 1232. And the complaint fails to plead sufficient facts to establish the

stroke was “so obvious that even a layman would recognize the condition.” Id.

5 Accordingly, the complaint fails to overcome Farmer’s admonition a prison official

cannot be liable for a “failure to alleviate a significant risk that [s]he should have

perceived but did not.” 511 U.S. at 838. At most, the allegations show negligent

diagnosis or treatment, which is insufficient to plausibly allege the subjective

component of an Eighth Amendment medical-care claim.

As for Edde, the complaint concedes he was not deliberately indifferent when

he saw Foreman and sent him to Lindsay for treatment. Instead, it faults him for not

approving a transfer from Lindsay to OU Medical Center. The complaint, however,

does not allege any facts regarding the transfer, other than an unknown source told

Foreman he was brought back to JDCC because Edde did not approve the transfer.

Even assuming the complaint adequately establishes Foreman was returned to JDCC

simply because of Edde’s non-approval, nothing in the complaint allows the

inference Edde was deliberately indifferent in not approving a transfer. Instead, the

complaint presents the type of “unadorned, the-defendant-unlawfully-harmed-me

accusation” Iqbal disapproved, 556 U.S. at 678. At best, it raises the mere possibility

of misconduct by Edde, which is insufficient to state a plausible claim. See id. at

678-79.

The district court’s judgment is affirmed.

Entered for the Court

Terrence L. O’Brien Circuit Judge