Gray v. Sorrels

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 1, 2018
• Docket: 17-7063
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT August 1, 2018

_________________________________ Elisabeth A. Shumaker Clerk of Court FREDERICK GRAY,

Plaintiff - Appellant,

v. No. 17-7063 (D.C. No. 6:16-CV-00145-RAW-SPS) PATRICIA SORRELS; DAVID (E.D. Okla.) MARLAR; BUDDY HONAKER; JAMES HOWARD; SUSAN SHIELDS; PATRICIA STEM; WILLIAM TAYLOR; NANCY COPPEL; AMBER ROBINSON; ALICIA SCULL; BUSTER HARRIS,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________

Pro se state prisoner Frederick Gray appeals the district court’s dismissal of his

amended complaint, which alleged that under 42 U.S.C. § 1983 (1) various prison-official

defendants violated his Eighth Amendment rights when they delayed in providing him

medical care and failed to protect him from beatings by his cellmate; (2) several

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. prison-official defendants improperly resolved his prison grievances, thus violating his

First Amendment right of access to the courts and his Eighth Amendment right to

medical care; and (3) certain prison-official defendants violated the Equal Protection

Clause of the Fourteenth Amendment by providing medical care to white prisoners that

was denied to him, an African American. The district court denied injunctive relief and

dismissed the amended complaint for failure to state a claim under Fed. R. Civ. P.

12(b)(6). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, and reverse

and remand in part.

I. BACKGROUND

We recite the facts as alleged in the amended complaint—the operative complaint.

While incarcerated at the Oklahoma State Penitentiary in McAlester, Oklahoma,

Mr. Gray suffered from severe pain and swelling in his knees. In June 2015, he sought

treatment from the prison clinic but did not receive pain medication or any other

treatment for the swelling for 79 days. The prison’s resident physician, Defendant

Dr. Marlar, examined his knees in early September 2015 and again on December 7, 2015.

Mr. Gray filed several prison grievances complaining about lack of treatment and alleged

they were not adequately addressed.

On June 13, 2014, Mr. Gray’s cellmate was prescribed medication for his serious

schizophrenic disorder. Prison officials warned Mr. Gray and his cellmate that if either

of them did not take his medication, they would be separated immediately.1 In early

1 Mr. Gray has not identified the type of medication he was prescribed. - 2 -

August 2015, the cellmate’s doctor, Defendant Dr. Howard, discontinued the cellmate’s

medication. On August 14, 2015, following a search of their cell, the cellmate attacked

Mr. Gray, injuring his neck and causing him to bleed from the mouth. In June 2016

Mr. Gray was transferred from McAlester to the Lawton Correctional Facility.

II. ELEVENTH AMENDMENT IMMUNITY

The amended complaint named the defendants in their official and individual

capacities. The district court held that the defendants who were sued in their official

capacities were immune from suit for money damages under the Eleventh Amendment.

“We review a district court’s determination of Eleventh Amendment immunity de novo.”

Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174, 1181 (10th Cir. 2015). “When a state

official is sued in his or her official capacity, the Eleventh Amendment bars retrospective

relief, usually in the form of money damages, because any such judgment is deemed

directed at the state as the real party in interest rather than the nominal officer.”

Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1233 (10th Cir. 2010).2

Mr. Gray contends the Oklahoma Governmental Tort Claims Act (OGTCA)

waives immunity for torts committed by state employees, such as these defendants. But

under the OGTCA, state employees “acting within the scope of their employment,

whether performing governmental or proprietary functions, shall be immune from

2 Injunctive relief may be available against a defendant in his or her official capacity. See Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 631 (10th Cir. 1998) (“[A] suit against a state official in his or her official capacity seeking prospective injunctive relief is not . . . a suit against the state for Eleventh Amendment Purposes.”). But as explained below, Mr. Gray is not entitled to injunctive relief. - 3 -

liability for torts.” Okla. Stat. tit. 51, § 152.1(A). “This immunity grant allows public

employees to perform their duties and make decisions on behalf of the state free from

fear of suit.” Anderson v. Eichner, 890 P.2d 1329, 1336 (Okla. 1994). Accordingly, we

affirm the dismissal of the claims for money damages against the defendants in their

official capacities.

III. FAILURE TO STATE A CLAIM FOR RELIEF

A. Standards of Review

We review de novo the district court’s order granting dismissal under Rule

12(b)(6), “accept[ing] the facts alleged in the complaint as true and view[ing] them in the

light most favorable to the plaintiff[].” Lincoln v. Maketa, 880 F.3d 533, 537 (10th Cir.

2018) (internal quotation marks omitted). To withstand dismissal, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Moreover, “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory statements,” are not

sufficient to state a claim for relief. Id. We scrutinize the complaint from the same

perspective as the district court. Ayala v. Joy Mfg. Co., 877 F.2d 846, 847 (10th Cir.

1989).

“Although a pro se litigant’s pleadings are to be construed liberally and held to a

less stringent standard than formal pleadings drafted by lawyers, this court has repeatedly

- 4 -

insisted that pro se parties follow the same rules of procedure that govern other litigants.”

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citation,

brackets, and internal quotation marks omitted).

B. Analysis of the Three Claims

1. Deliberate Indifference to the Prisoner’s Medical Needs and Safety

Mr. Gray alleged that the defendants violated his Eighth Amendment rights when

they (1) delayed in providing him medical treatment and (2) failed to protect him from

violence from his cellmate.

a. Legal background

“[D]eliberate 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).

Prison personnel “may thus be liable under § 1983 for indifference manifested in their

response to the prisoner’s needs or by intentionally denying or delaying access to medical

care or intentionally interfering with treatment once prescribed.” Estate of Booker v.

Gomez, 745 F.3d 405, 429 (10th Cir. 2014) (ellipses and internal quotation marks

omitted). Likewise, “[a] prison official’s deliberate indifference to a substantial risk of

serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan,

511 U.S. 825, 828 (1994) (internal quotation marks omitted). These claims include both

an objective and a subjective component. Estate of Booker, 745 F.3d at 430 (internal

quotation marks omitted) (medical needs); Riddle v. Mondragon, 83 F.3d 1197, 1204

(10th Cir. 1996) (failure to protect).

- 5 -

For the objective component of a failure-to-treat claim, the inquiry is whether the

prisoner’s “medical need is sufficiently serious[, that is,] if it is one that is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.” Estate of

Booker, 745 F.3d at 430 (ellipsis and internal quotation marks omitted). When a prisoner

alleges that a delay in treatment caused him pain, if “the pain experienced during the

delay is substantial, the prisoner sufficiently establishes the objective element of the

deliberate indifference test.” Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014)

(internal quotation marks omitted).

For the objective component of a failure-to-protect claim, the prisoner “must show

that he is incarcerated under conditions posing a substantial risk of serious harm.”

Riddle, 83 F.3d at 1204 (internal quotation marks omitted). “A prisoner has a right to be

reasonably protected from constant threats of violence . . . from other inmates.” Id.

For the subjective component for both types of claim, the prisoner must present

“evidence of the prison official’s culpable state of mind. He must show that the prison

official acted or failed to act despite his knowledge of a substantial risk of serious harm.”

Estate of Booker, 745 F.3d at 430 (citation and internal quotation marks omitted)

(medical needs); see Riddle, 83 F.3d at 1204 (failure to protect). “[T]he official must

have been both aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must have also drawn the inference.” Requena v.

Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018) (brackets, ellipsis, and internal quotation

marks omitted).

- 6 -

In addition to the objective and subjective components of these Eighth

Amendment claims, a § 1983 “plaintiff must show the defendant personally participated

in the alleged violation, and conclusory allegations are not sufficient to state a

constitutional violation.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (citation

omitted).

b. Analysis

(1) Delay in medical treatment

The amended complaint alleged that Defendants Coppel, Marlar, Robinson, and

Scull denied Mr. Gray “something for any type of relief for the severe pain [he] had been

in for approximately 79 days till [he] received the generic Advil.” R. at 334. This

allegation against a group of defendants is too conclusory to establish personal

participation on the part of any one of them. See Jenkins, 81 F.3d at 994.

We turn to the more specific claims of failure to provide medical care against each

defendant, reciting the facts as alleged in the amended complaint. In addition, we

consider Mr. Gray’s affidavit, which was attached to the original complaint.

See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (“[I]n 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.”); Rondigo, L.L.C. v. Twp. of

Richmond, 641 F.3d 673, 676 n.1 (6th Cir. 2011) (basing “factual summary on plaintiffs’

amended complaint and exhibits referred to therein and attached to plaintiffs’ original

complaint”); Smith v. Mass. Dep’t of Corr., 936 F.2d 1390, 1392 n.1 (1st Cir. 1991) (“We

- 7 -

construe the exhibits annexed to the original complaint as part of the amended

complaint.”).

Ms. Coppel. Ms. Coppel was a licensed practical nurse at the prison. The

amended complaint alleged that Mr. Gray’s knees were swollen and severely painful

when Ms. Coppel examined him, and that she would not provide him with anything for

the swelling or pain. Mr. Gray’s affidavit further alleged that Ms. Coppel saw him in late

June, 2015, but Dr. Marlar did not see him until September 2, 2015. In the interim,

Ms. Coppel did not give him any pain medication and instead told him that he would

have to wait for Dr. Marlar. Mr. Gray alleged that he had been in severe pain while

awaiting treatment.

We conclude that Mr. Gray stated a plausible claim of the subjective component of

deliberate indifference by alleging that Ms. Coppel knew of his swollen and painful knees

and determined that they required treatment, yet failed to provide any pain relief for over

two months. This sufficiently alleged that Ms. Coppel was both aware of facts from

which the inference could be drawn that a substantial risk of serious harm existed, and

that she must also have drawn the inference.

We further conclude that Mr. Gray’s claim that his knees were severely swollen

and caused him severe pain for over two months stated a plausible claim that the delay

resulted in substantial harm, thus satisfying the objective component. See Al-Turki,

762 F.3d at 1193 (stating the objective element is established if the pain experienced

during the delay in obtaining medical treatment is substantial). We therefore reverse the

dismissal of the claim against Ms. Coppel and remand for further proceedings.

- 8 -

Dr. Marlar. Dr. Marlar was the prison’s resident physician. The allegations

against him consist of four parts. First, the amended complaint alleged that Dr. Marlar

examined Mr. Gray on September 2, 2015 (“approximately 96 days” before Dr. Marlar

reevaluated him on December 7, 2015, R. at 334; see also id. at 168 (Mr. Gray’s affidavit

stating he saw Dr. Marlar on September 2, 2015)). Mr. Gray concedes that he received

treatment on September 7, which was shortly after Dr. Marlar’s initial evaluation, so any

delay in treatment by Dr. Marlar was minimal and would not amount to deliberate

indifference.

Second, the amended complaint alleged that at the December 7 evaluation,

Dr. Marlar “said he would prescribe something more serious for the pain,” id., implying

that Mr. Gray had previously been given some form of pain medication. Indeed,

Mr. Gray’s allegation that he was denied pain medication for 79 days after June 22, 2015,

indicates that he was given pain medication in early September 2015. These facts do not

state a claim that Dr. Marlar was deliberately indifferent to his need for pain medication.

Cf. Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (holding that prisoner who was

given pain medication for his headaches, albeit not the medication he desired, did not

state an Eighth Amendment violation).

Third, the amended complaint alleged that on December 7, Dr. Marlar advised

Mr. Gray that he would prescribe a knee brace “so the [meniscus] tendon could heal

properly,” R. at 334, but at a reevaluation of Mr. Gray’s knees on January 8, 2016,

Dr. Marlar said he could not provide a knee brace due to a spending freeze. Dr. Marlar’s

- 9 -

inability to provide a knee brace due to a prison spending freeze does not demonstrate

deliberate indifference on his part.3

Fourth, the amended complaint asserted that Mr. Gray suffered a whiplash neck

injury on August 14, 2015, when his cellmate battered him. In his affidavit, Mr. Gray

alleged that despite Dr. Marlar’s statement in early September 2015 that he would order

an x-ray of Mr. Gray’s neck, the x-ray was not taken until November 19, 2015, more than

three months after the injury and almost two and one-half months after Dr. Marlar said he

would order it. Mr. Gray’s affidavit further alleged that Dr. Marlar said he would order

something for his neck pain, as well as a muscle relaxer, but he did not receive anything

for his neck pain until January 8, 2016, and the muscle relaxer was never prescribed, so

his “neck is stiff and pops when moved.” Id. at 169.

We conclude that Mr. Gray has plausibly alleged a deliberate indifference claim

against Dr. Marlar based on his neck injury. For the subjective component, Mr. Gray

alleged that Dr. Marlar knew he had sustained a severe neck injury and ordered an x-ray,

but failed to obtain the x-ray for two and one-half months. In addition, Mr. Gray alleged

he received no pain medication for his neck until January 8, 2016, and no muscle

relaxer.4 Mr. Gray also satisfied the objective component by alleging that he had severe

3 Although Mr. Gray asserted that Defendant Honaker was deliberately indifferent to his serious medical need for a knee brace by imposing a spending freeze, this allegation does not state a claim for deliberate indifference. It does not satisfy the subjective component because it does not allege that Mr. Honaker imposed a spending freeze despite his knowledge that doing so presented a substantial risk of serious harm. 4 We recognize that the pain medication Mr. Gray received for his knees might also have served to alleviate his neck pain, but we must accept the facts alleged in the complaint as true. Lincoln, 880 F.3d at 537. - 10 -

neck pain from August 14, 2015 until January 8, 2016, and that his neck continued to be

stiff and pop when moved. We therefore reverse the dismissal of the claim against

Dr. Marlar relating to Mr. Gray’s neck injury and remand for further proceedings.

Ms. Robinson. Ms. Robinson was a licensed practical nurse at the prison.

Mr. Gray’s deliberate-indifference claims against Ms. Robinson based on lack of medical

treatment are limited to alleging that she was an assistant to Dr. Marlar and that she and

Dr. Marlar “did an initial evaluation.” Id. at 334. These facts fail to state a plausible

claim for either the objective or the subjective component of deliberate indifference.

Finally, the amended complaint alleged that Defendants Ms. Sorrels and Mr.

Honaker were liable as the supervisors of those who denied medical treatment to Mr.

Gray. But “supervisor status by itself is insufficient to support liability.” Mitchell,

80 F.3d at 1441.

(2) Failure to protect

The amended complaint alleged that Dr. Howard was responsible for prescribing

psychotropic medications for Mr. Gray’s cellmate’s schizophrenic disorder and that he

ceased prescribing the medications when Mr. Gray and the cellmate were housed

together. This allegation does not state Dr. Howard knew that stopping the medications

would cause the cellmate to become violent. The amended complaint therefore did not

allege facts indicating that Dr. Howard acted or failed to act despite his knowledge of a

substantial risk of serious harm. See Estate of Booker, 745 F.3d at 430.

The amended complaint alleged that Defendants Robinson, Howard, Scull, Harris,

Stem, and Shields knew Mr. Gray’s cellmate had a propensity for violence, but they

- 11 -

claimed there was no open cell available where he could be relocated. Not only did the

amended complaint fail to allege that any of these defendants were responsible for cell

assignments, but this group allegation is too conclusory to establish their personal

participation in any alleged violation. See Jenkins, 81 F.3d at 994.

The amended complaint also alleged that Defendants Robinson, Scull, and Shields

sent emails to Dr. Howard concerning Mr. Gray’s cellmate’s need for antipsychotic

medication. But it did not allege the specific content of emails, nor did it allege facts that

met either the objective component—Mr. Gray was incarcerated under conditions posing

a substantial risk of serious harm—or the subjective component—the prison officials

acted or failed to act despite knowing of a substantial risk of serious harm. See Riddle,

83 F.3d at 1204.

The amended complaint further alleged that Defendant Sergeant Harris, a

correctional officer at the prison who supervised other prison personnel, “failed to allow”

Officer Holden, a corrections officer assigned to the mental health unit, to take Mr. Gray

to the prison medical department. R. at 338.5 As a result, the injuries the cellmate

inflicted on Mr. Gray were not discovered until he had a neck x-ray in November 2015.

These allegations were insufficient to meet the subjective component because they did

not assert any facts showing that Sgt. Harris knew that Mr. Gray had been attacked by his

5 Although Mr. Gray attempts to pursue claims against Officer Holden in his appellate briefs, Officer Holden was not named in the amended complaint, so he is not a party to this appeal. See, e.g., McGowan v. United States, 825 F.3d 118, 123 n.2 (2d Cir. 2016) (stating certain defendants “were not named in the Amended Complaint and also are not parties to this appeal”).

- 12 -

cellmate or that he had suffered any injury, let alone a serious injury. To the extent

Mr. Gray alleges Sgt. Harris is liable due to his position as Officer Holden’s supervisor,

or that he violated Mr. Gray’s Fourth Amendment rights by failing to adequately

supervise the officers who searched his cell, “supervisor status by itself is insufficient to

support liability,” Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996).6

The amended complaint also alleged that Sgt. Harris’s failure to have Mr. Gray

taken to the medical department violated a cell-altercation protocol. But violation of a

prison regulation does not state a constitutional violation unless the prison official’s

conduct “failed to conform to the constitutional standard.” Porro v. Barnes, 624 F.3d

1322, 1329 (10th Cir. 2010) (internal quotation marks omitted) (holding prisoner must

establish that violation of a prison policy necessarily stated a constitutional violation).

The amended complaint did not allege that the failure to comply with the prison protocol

violated Mr. Gray’s Eighth Amendment rights.

The remaining claims relate to Defendants Stem and Taylor. The amended

complaint alleged that Dr. Stem was the prison’s mental health coordinator and

Mr. Taylor was a prison mental health unit manager and that, on June 13, 2014, they told

Mr. Gray that he and his cellmate would be separated immediately if either of them

refused to take his medication. This allegation does not assert that the prison officials

6 The amended complaint alleged that the search of his cell violated Mr. Gray’s Fourth Amendment rights against unreasonable searches and seizures. Not only were the search team members not named as defendants, but “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). - 13 -

knew that the cellmate had refused to take his medication and failed to act despite their

knowledge of a substantial risk of serious harm. Thus, it failed to allege the subjective

component of a failure-to-protect claim.

2. Responses to Prison Grievances

The amended complaint alleged that Ms. Sorrels, the prison health services

administrator; Mr. Honaker, the prison chief medical officer; and Drs. Marlar and Shields

improperly denied his prison grievances, “shuffled paperwork,” and attempted to use the

grievance policy to “pencil whip the process” to keep Mr. Gray from availing himself of

the grievance process. R. at 341. It also alleged that Dr. Shields said Mr. Gray and his

cellmate were separated due to a verbal dispute, when, in fact, they were separated

because the cellmate physically battered Mr. Gray. The district court rejected Mr. Gray’s

allegations based on prison grievances because they were insufficient to establish the

requisite personal participation for a § 1983 claim.

Mr. Gray asserted that (1) these defendants improperly tried to prevent him from

availing himself of administrative remedies and improperly denied grievances requesting

monetary compensation, and (2) the denial of the grievances resulted in unconstitutional

delays in providing him medical care. He requested the court to “excuse any construed

failure to exhaust Administrative Remedy,” R. at 342.7

7 The amended complaint also asserted that Mr. Gray’s Eighth and Fourteenth Amendment rights were denied because his attempt to resolve his failure-to-protect claim informally “went ignored.” R. at 340. This does not state a constitutional violation. - 14 -

We liberally treat the first assertions as alleging that Mr. Gray was denied his First

Amendment right of access to the courts based on his failure to exhaust the prison

grievance process. See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (“Where

prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an

administrative remedy, they render that remedy ‘unavailable’ and a court will excuse the

prisoner’s failure to exhaust.”); id. at 1249 (explaining that “a prisoner must exhaust his

administrative remedies prior to filing a lawsuit regarding prison conditions in federal

court”). But Mr. Gray was not foreclosed from bringing any claims for failing to exhaust

the prison grievance process. Thus, his request that any failure to exhaust be excused is

unnecessary. He has failed to state a First Amendment claim.

As for Mr. Gray’s remaining claims that the denial of the grievances resulted in

unconstitutional delays in providing him medical care, a prison official’s “mere response

and denial of [a] grievance [pertaining to medical treatment] are insufficient to establish

the requisite personal participation under § 1983.” Requena, 893 F.3d at 1216. Thus,

these claims were properly dismissed.

3. Equal Protection

Mr. Gray alleged that Defendants Coppel, Robinson, and Scull violated the Equal

Protection Clause when they provided pain relievers to white prisoners as soon as they

complained of pain, but did not provide pain medication to him. To prove a

constitutional violation, Mr. Gray must allege that he was treated differently from

similarly situated individuals. See City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985). In addition, “[p]roof of racially discriminatory intent or purpose is

- 15 -

required to show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977). “It is not necessary to demonstrate

that the challenged action was taken solely for discriminatory purposes; it is necessary

only to prove that a discriminatory purpose was a motivating factor.” Watson v. City of

Kansas City, 857 F.2d 690, 694 (10th Cir. 1988).

To survive a motion to dismiss, Mr. Gray had to plead “only enough facts to state

a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, and we accept

the facts as true, viewing them in the light most favorable to him, Lincoln, 880 F.3d at

537. Mr. Gray’s allegation that Defendants Coppel, Robinson, and Scull provided pain

medication to white prisoners suffering from pain while denying pain medication to him,

an African American prisoner suffering from pain, is sufficient to state a claim that he

was treated differently from similarly situated individuals. Further, the allegations that

these Defendants treated whites but did not treat African Americans is sufficient to draw

the reasonable inference of discriminatory intent. We therefore conclude that Mr. Gray

stated an equal-protection violation, and we remand this claim for further proceedings.

IV. PRELIMINARY INJUNCTION

Mr. Gray requested a preliminary injunction requiring Defendants Sorrels and

Honaker to “squarely address” his grievances and grievance appeals. He requested that

these defendants be required to resolve his grievances so that he (1) could satisfy the

requirement that he exhaust his administrative remedies to ensure his First Amendment

right of access to the courts and (2) receive adequate medical care. Injunctive relief is not

available due to Mr. Gray’s move from the prison at McAlester to the Lawton

- 16 -

Correctional Facility in June 2016. See Jordan v. Sosa, 654 F.3d 1012, 1028 n.17 (10th

Cir. 2011) (stating “where a prisoner is no longer housed at the penal institution having

the conditions of confinement that form the basis of his suit, declaratory relief—as well

as injunctive relief—is ordinarily not available”). As discussed above, Mr. Gray was not

foreclosed from bringing any claims for failing to exhaust the prison grievance process

based on his placement at McAlester. Any future grievances must be addressed by prison

personnel at his current placement. Similarly, a preliminary injunction requiring

Defendants Sorrels and Honaker to address his grievances concerning his medical

treatment would serve no function because Mr. Gray’s medical treatment must be

provided at his current placement. An injunction directed to Defendants Sorrels and

Honaker would not afford Mr. Gray any relief. We affirm the district court on this issue.

V. REMAINING ARGUMENTS

Mr. Gray contends that a magistrate judge improperly acted as counsel for the

defendants when he struck two motions to dismiss as improperly filed but granted leave

for defendants to reargue each motion if appropriate. This argument lacks merit.

Granting leave to reargue a motion seeking a ruling adverse to the plaintiff does not

demonstrate judicial bias. See Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010)

(“Adverse rulings alone do not demonstrate judicial bias.”).

Mr. Gray also argues in his opening brief that prison personnel, including a prison

librarian, filed retaliatory misconduct charges against him to stifle his access to the court.

He further contends that they tampered with his medication and engaged in collusion.

But Mr. Gray did not present these claims to the district court. “[A]bsent extraordinary

- 17 -

circumstances, we will not consider arguments raised for the first time on appeal.”

McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002).

Finally, Mr. Gray argues that cumulative error requires reversal. “Cumulative-

error analysis . . . aggregates all the errors that individually have been found to be

harmless, and therefore not reversible, and it analyzes whether their cumulative effect on

the outcome of the trial is such that collectively they can no longer be determined to be

harmless.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 860

(10th Cir. 2005) (internal quotation marks omitted). Because we have not found any

harmless errors, there can be no cumulative error based on the aggregate of harmless

errors.

VI. CONCLUSION

We reverse the dismissal of (1) the claim against Ms. Coppel alleging she denied

Mr. Gray medical treatment; (2) the claim against Dr. Marlar concerning Mr. Gray’s neck

injury, and (3) the equal protection claim against Ms. Coppel, Ms. Robinson, and

Ms. Scull. We remand those claims for further proceedings. We affirm in all other

respects the order dismissing the amended complaint and denying injunctive relief.8

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

8 Mr. Gray has abandoned his motion for appointment of counsel, see Aplt. Reply Br. at 20, so we deny it as moot. - 18 -