Hardeman v. Smash

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 16, 2022
• Docket: 21-7018
• Status: Unpublished

Opinion

Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 16, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JOHNNY L. HARDEMAN, a/k/a Lo’Re Pink,

Plaintiff - Appellant,

v. No. 21-7018 (D.C. No. 6:19-CV-00110-JFH-SPS) JAMES J. SMASH, Mental Health (E.D. Okla.) Administrator; DR. LEEANN SELF, Mental Health Department; DR. JANA MORGAN, Chief Mental Health Administrator; REGINA VANBLERCIOM, Medical Administrator; JERRY PERRY, Unit Manager; MILLICENT NEWTON EMBRY, Regional Director I; CHARLES RODEN, Policy and Procedure Administrator, a/k/a Chuck Roden; JOEL BRENT MCCURDY, M.D., Chief Medical Officer; MIKE CARPENTER, OSP Warden; DAVID CINCOTTA, General Counsel,

Defendants - Appellees,

and

PATRICIA JONES-PILKINGTON; BUDDY HONAKER,

Defendants. _________________________________

ORDER AND JUDGMENT*

* 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 Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 2

_________________________________

Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________

Johnny L. Hardeman, whose name has been legally changed to Lo’Re Pink, an

Oklahoma state prisoner proceeding pro se, appeals from the district court’s opinion and

order disposing of her civil-rights action under 42 U.S.C. § 1983.1 Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Hardeman is an inmate serving a life sentence at the Oklahoma State Penitentiary

(OSP). Her complaint alleges that officials at OSP and the Oklahoma Department of

Corrections (ODOC) were deliberately indifferent to her medical and mental-health needs

and otherwise violated her civil rights through numerous acts of retaliation and

discrimination.

In December 2015, Hardeman was examined by ODOC psychologist Heather

Diaz, who made a diagnosis of “Suspected” gender-identity disorder. R., Vol. II at 85.

In May 2017 a different ODOC psychologist, Patricia Jones-Pilkington, conducted an

“evaluation . . . to document the presence or absence of the diagnostic criteria for Gender

Dysphoria per the DSM-5,” and provide “any additional information relevant to . . .

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. 1 Because of the name change, we use the corresponding pronouns. 2 Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 3

whether or not it is in the best interest of [Hardeman’s] psychological health to provide

hormone replacement therapy.” Id. at 34. As part of the evaluation, she reviewed all

available medical records of Hardeman and conducted a six-hour interview that included

psychological testing. Jones-Pilkington found that Hardeman “does not meet the criteria

for Gender Dysphoria at this time,” but does “meet the diagnostic criteria for Histrionic

Personality Disorder.” Id. at 34. Further, she opined “it would be irresponsible to

provide . . . Hardeman hormone replacement therapy,” because the “radical changes in

emotions, physiology, and even cognitions that can occur while taking hormones would

have the potential of increasing . . . Hardeman’s already significant distress,” which

Jones-Pilkington attributed to “the restrictive environment of OSP.” Id. at 40-41.

Despite these negative findings, Hardeman continued to insist on receiving

treatment for gender dysphoria, including hormone therapy and the right to purchase

items such as make-up and female attire, and demanded that officials either accept Diaz’s

diagnosis or conduct a supplemental evaluation “to break the tie.” R., Vol. I at 33. When

these requests were denied, Hardeman sued.

Hardeman’s complaint, liberally construed, asserts deliberate indifference to her

medical and mental-health needs; claims for retaliation and discrimination, including the

refusal to update policies for transgender inmates and to change the name on her records

to Lo’Re Pink; and state-law claims for intentional infliction of emotional distress.

3 Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 4

Following the filing of a Martinez report,2 the defendants moved to dismiss or for

summary judgment. The district court granted the motion to dismiss as to defendants

Jones-Pilkington and Buddy Honaker for failure to timely serve them as required by Fed.

R. Civ. P. 4(m), and as to Joel McCurdy and David Cincotta for lack of alleged personal

participation in the alleged constitutional violations. The court also dismissed the

discrimination and retaliation claims for failure to exhaust administrative remedies. And

although the court ruled that Hardeman had exhausted her request for a supplemental

gender-dysphoria examination, it granted summary judgment because there was no

evidence of deliberate indifference. The court also declined to exercise supplemental

jurisdiction over any state-law claims.

II. DISMISSAL OF DEFENDANTS JONES-PILKINGTON AND HONAKER

Defendant Jones-Pilkington conducted the second gender-dysphoria examination

and defendant Honaker denied Hardeman’s grievance appeal of the denial of her request

for a supplemental gender-dysphoria examination. Because Hardeman was a prisoner

proceeding in forma pauperis (ifp), the district court ordered the United States Marshals

Service (USMS) to serve process on these and the other defendants. See 28 U.S.C. §

1915(d); Fed. R. Civ. P. 4(c)(3). Honaker and Jones-Pilkington were never served,

2 See Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir. 1978) (per curiam) (approving district court’s practice of ordering preparation of prison-administration report in a prisoner’s suit alleging constitutional violations by prison officials). 4 Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 5

however, because the USMS was unable to locate Honaker and several attempts to serve

Jones-Pilkington were unsuccessful.

After nearly two years of failed attempts to obtain service, the district court

dismissed Honaker and Jones-Pilkington without prejudice for failure of timely service

under Fed. R. Civ. P. 4(m). The court noted that although it is required to effect service

for an ifp litigant, it is the litigant’s responsibility to provide adequate information to

obtain service. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir.

2007) (“[T]he [USMS] is not charged with finding a defendant who has moved without

providing an accessible forwarding address.”).

We review for abuse of discretion the district court’s order to dismiss for failure to

timely serve process. See Jones v. Frank, 973 F.2d 872, 872 (10th Cir. 1992). “A district

court abuses its discretion when it renders an arbitrary, capricious, whimsical, or

manifestly unreasonable judgment.” Burke v. Regalado, 935 F.3d 960, 1011 (10th Cir.

2019) (internal quotation marks omitted).

The district court did not abuse its discretion when it ruled that “the USMS has

made all reasonable efforts to serve . . . Honaker and Jones-Pilkington.” R., Vol. I at 435.

The USMS was not required to locate Honaker, and Hardeman has provided no authority

that the USMS was required to make an unlimited number of attempts to serve Jones-

Pilkington. We affirm the dismissal without prejudice of these two defendants.

III. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

The Prison Litigation Reform Act (PLRA) provides that a prisoner cannot bring an

action “with respect to prison conditions under section 1983 . . . until such administrative

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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see Jones v. Bock, 549

U.S. 199, 211 (2007) (“[E]xhaustion is mandatory under the PLRA . . . .”); Little v.

Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (under the PLRA “a prisoner must exhaust

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

court”). “[S]ubstantial compliance is insufficient.” Rather, proper exhaustion requires

compliance with all of the prison’s grievance procedures, including “deadlines and other

critical procedural rules[,] because no adjudicative system can function effectively

without imposing some orderly structure on the course of its proceedings.” Woodford v.

Ngo, 548 U.S. 81, 90-91 (2006). For example, “[a]n inmate who begins the grievance

process but does not complete it is barred from pursuing a § 1983 claim under PLRA for

failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d 1030,

1032 (10th Cir. 2002).

We review de novo the district court’s failure-to-exhaust ruling. See Jernigan,

304 F.3d at 1032. The court carefully examined Hardeman’s grievance proceedings

in light of the required ODOC procedures and determined that she had properly

exhausted only one of her § 1983 claims—namely, the claim that her request for a

supplemental gender-dysphoria evaluation was improperly denied. We agree with

the court’s determination because there is no evidence that Hardeman properly

completed the grievance process with respect to any other incidents or issues.3 The

3 Hardeman did initiate a grievance concerning changing the name on her records to Lo’Re Pink; but that grievance process was not completed until after she filed suit. 6 Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 7

district court’s dismissal of all claims other than the one based on the failure to

provide a supplemental evaluation was therefore proper.

Hardeman argues that the grievance she exhausted included more than a

complaint about failure to provide a supplemental gender-dysphoria evaluation. But

the grievance rules promulgated by the ODOC state that “[o]nly one issue or incident

is allowed per grievance.” R., Vol. I at 179.

IV. SUPPLEMENTAL GENDER-DYSPHORIA EXAMINATION

The district court granted summary judgment against Hardeman on her claim that

she was improperly denied a supplemental gender-dysphoria evaluation. We review the

district court’s decision de novo. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th

Cir. 2000). Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a).

Deliberate indifference to a prisoner’s serious medical needs constitutes cruel and

unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429

U.S. 97, 104 (1976). “Deliberate indifference involves both an objective and a subjective

component.” Sealock, 218 F.3d at 1209 (internal quotation marks omitted). The

objective component requires the plaintiff to show that her medical need is “sufficiently

serious”; that is, “it is one that has been diagnosed by a physician as mandating treatment

or one that is so obvious that even a lay person would easily recognize the necessity for a

doctor’s attention.” Id. (internal quotation marks omitted). We assume, without

deciding, that gender dysphoria satisfies the objective component.

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The subjective component requires the plaintiff to show that the prison official

knew of and disregarded “an excessive risk to inmate health or safety.” Id. (internal

quotation marks omitted). “[T]he 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.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (internal

quotation marks omitted).

To survive summary judgment, Hardeman needed to point to evidence allowing an

inference that the served defendants consciously disregarded the possibility of gender

dysphoria in failing to provide for a third examination. But there is no such evidence.

When Hardeman continued to insist on treatment for “Suspected” gender dysphoria, R.,

Vol. II at 85, a second evaluation was conducted, and it diagnosed Hardeman with

histrionic personality disorder—not gender dysphoria.

Although Hardeman disagrees with Jones-Pilkington’s diagnosis, “a difference of

opinion with the medical staff . . . does not rise to the level of a constitutional violation.”

Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993). Moreover, “a misdiagnosis, even

if rising to the level of medical malpractice, is simply insufficient under our case law to

satisfy the subjective component of a deliberate indifference claim.” Self, 439 F.3d at

1234.

Hardeman continues to insist that the defendants were deliberately indifferent to

her medical and mental-health needs when they failed to provide hormone therapy and

items such as cosmetics and female attire. But that claim was not exhausted in so far as it

extends beyond the denial of an additional gender-dysphoria examination. In any event,

8 Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 9

the denial of hormone therapy, etc., was predicated on the diagnosis by Jones-Pilkington;

so those additional claims could not survive summary judgment absent evidence that the

defendants knew that the diagnosis was incorrect. We therefore affirm the summary

judgment.4

V. DISMISSAL OF STATE-LAW CLAIMS

When the district court disposed of Hardeman’s § 1983 claims, it declined to

exercise supplemental jurisdiction over any state-law claims. “We review the district

court’s decision declining to exercise supplemental jurisdiction for an abuse of

discretion.” Strain, 977 F.3d at 989.

Once all federal claims have been dismissed, the court may decline to exercise

jurisdiction over any remaining state-law claims. See 28 U.S.C. § 1367(c)(3); Barnett v.

Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir.

2020) (“The Supreme Court has encouraged the practice of dismissing state claims or

4 We need not address whether the dismissal of defendants McCurdy and Cincotta could also be based on the absence of personal participation. We note, however, that the dismissal of those defendants cannot support the designation of a strike. See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated . . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”). Here, only the claims against McCurdy and Cincotta were dismissed for failure to state claims—the remaining claims were dismissed on other grounds or resolved on the merits. Therefore, the designation of a strike was improper. See Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012) (“Because the statute refers to dismissals of ‘actions,’ as opposed to ‘claims,’ it is well established that a partial dismissal based on one of the grounds enumerated in § 1915(g) is generally not a proper basis for assessing a strike.”). 9 Appellate Case: 21-7018 Document: 010110645802 Date Filed: 02/16/2022 Page: 10

remanding them to state court when the federal claims to which they are supplemental

have dropped out before trial.”). The district court did not abuse its discretion when it

dismissed Hardeman’s state-law claims.

VI. CONCLUSION

The judgment of the district court is affirmed. We agree with the district court’s

grant of leave to proceed ifp on appeal and remind Hardeman that she is required to make

partial payments until the filing fee is paid in full.

Entered for the Court

Harris L Hartz Circuit Judge