FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 8, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court MIKEL RAY HENDERSON,
Plaintiff - Appellant,
v. No. 18-6178 (D.C. No. 5:17-CV-01018-C) ROSS L. FISHER, M.D., in his individual (W.D. Okla.) capacity; CHERI ATKINSON, Medical Administrator in her individual capacity; JEORLD BRAGGS, JR., Warden in his individual capacity; BUDDY HONAKER, ODOC Medical Service Manager in his individual capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________
Mikel R. Henderson, an Oklahoma prisoner proceeding pro se, appeals the
district court’s dismissal and grant of summary judgment in favor of defendants on
his 42 U.S.C. § 1983 claims. Henderson alleges various prison officials denied him
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. access to narcotic pain medication after he was accused of diverting (or palming) his
medication in the pill line. Prison officials had repeatedly warned him there was a
zero-tolerance policy for drug abuse, and he lost access to his preferred prescription
when he did not heed their warnings. This, he argues, subjected him to undue pain
and suffering and amounted to cruel and unusual punishment in violation of the
Eighth Amendment. He further asserts his Fourteenth Amendment rights were
violated when his prescription was terminated without a misconduct or offense report
as required by Oklahoma Department of Corrections (DOC) policy. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
A. Factual & Procedural Background
Henderson was diagnosed with tongue cancer in 2013, and he received surgery
and post-operative radiation treatment through 2014. To treat the residual chronic
nerve pain in his neck, Henderson began receiving a narcotic pain medication, Norco,
three times a day in the form of a 10-milligram oral tablet (Norco 10). After several
years of use, a nurse caught Henderson attempting to divert his Norco 10 prescription
in the prison pill line on May 2, 2017.1 To little surprise, the Lexington Correctional
Center medical doctor, Defendant Dr. Ross Fisher, revoked Henderson’s Norco 10
1 The nurse described the events as follows: “This nurse scanned inmate’s ID, checked his name with his meds, ensured it was proper time to admin meds, popped meds out of prepacked bubble pack into an appropriate medication cup, put cup with contents into the drawer that is under the pill window, and slid the drawer open so the inmate could obtain his meds. When inmate took meds out of the drawer he put an already empty medication cup on top of his crushed Norco 10. So when this inmate tipped the medication cups back to simulate proper admin of meds the crushed Norco 10 was stuck in between the two medication cups.” R. at 63. 2 prescription the next day. In his medical report addressing the matter, Dr. Fisher
stated he “[w]ill not plan any alternative [prescription] pain meds, including
neuropathy meds, given his [reaction] last summer w[ith his] trial of [G]abapentin,”
an alternative prescription that treats neuropathic pain that made Henderson
nauseous. Id. at 101. Dr. Fisher concluded Henderson is “out of luck regarding pain
meds through medical now”; he “has to live with [the] consequences of his actions &
behavior & diversion of meds clearly support that he does not need med.” Id.
When Henderson asked why his prescription had been terminated, Dr. Fisher
explained, “You were caught diverting (palming) them—a misconduct write up and
incident report filed. You will no longer get narcotic pain meds at this facility—You
have previously been told of this consequence.” Id. at 117. Indeed, based on prison
health records, this was not Henderson’s first incident of diversion; records indicate
Henderson “had been accused of similar behavior about one year [prior]” and prison
medical staff had warned Henderson about the “no tolerance policy” for substance
abuse at least twice. Id. at 101; see id. at 104, 107 (consequences of diversion
explained to Henderson on May 24, 2016 and August 18, 2016).
Outside specialists had mixed responses to how to treat Henderson’s pain after
the Norco 10 prescription ended. First, on May 8, 2017, Henderson saw an outside
medical specialist who suggested that “from patient’s complaints it sounds like he
would benefit from being restarted on his previous chronic pain regimen of Norco
10.” R. at 99. The doctor continued, directing that “[t]his regimen should be provided
and monitored by facility providers.” Id. At the next appointment on May 19, 2017,
3 the physician assistant who treated Henderson noted his continued neuropathic pain
but stated he would not prescribe opiate pain medication. The physician assistant
noted he “[w]ould consider [a] trial of TCA for neuropathy, but given patient’s age,
CV risk factors and common (anticholinergic) side-effects of this class of
medication,” he did “not feel it is the safest choice, especially given the high level of
sedation typically seen with the dosage needed to have neuropathy alleviating
effects.” Id. at 95. A third specialist saw Henderson on November 6, 2017, and the
doctor wrote in his report, “Given patient’s complaints and symptoms he may benefit
from resumption of chronic pain regimen, to be provided and administered per
facility providers[’] discretion.” Id. at 87. No outside specialist issued a new
prescription, but all indicated a concern about the chronic pain.
Ultimately, Dr. Fisher and the prison medical staff did not reinstate
Henderson’s prescription. As far as the appellate record indicates, although
alternatives were considered, no chronic pain management regimen was instituted to
treat Henderson. But Henderson did continue with his physical therapy treatment and
continued to see outside specialists. This wasn’t enough for Henderson. He filed a
grievance and appeal seeking reinstatement of his Norco 10 prescription, which were
denied. In response, Henderson filed a pro se civil rights complaint alleging his
Eighth and Fourteenth Amendment rights had been violated. For relief, Henderson
seeks access to Norco 10, a different prison doctor, and monetary damages from each
defendant. Defendants prepared a report under Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978), containing relevant witness testimony, documents, and administrative
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 8, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court MIKEL RAY HENDERSON,
Plaintiff - Appellant,
v. No. 18-6178 (D.C. No. 5:17-CV-01018-C) ROSS L. FISHER, M.D., in his individual (W.D. Okla.) capacity; CHERI ATKINSON, Medical Administrator in her individual capacity; JEORLD BRAGGS, JR., Warden in his individual capacity; BUDDY HONAKER, ODOC Medical Service Manager in his individual capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________
Mikel R. Henderson, an Oklahoma prisoner proceeding pro se, appeals the
district court’s dismissal and grant of summary judgment in favor of defendants on
his 42 U.S.C. § 1983 claims. Henderson alleges various prison officials denied him
* 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. access to narcotic pain medication after he was accused of diverting (or palming) his
medication in the pill line. Prison officials had repeatedly warned him there was a
zero-tolerance policy for drug abuse, and he lost access to his preferred prescription
when he did not heed their warnings. This, he argues, subjected him to undue pain
and suffering and amounted to cruel and unusual punishment in violation of the
Eighth Amendment. He further asserts his Fourteenth Amendment rights were
violated when his prescription was terminated without a misconduct or offense report
as required by Oklahoma Department of Corrections (DOC) policy. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
A. Factual & Procedural Background
Henderson was diagnosed with tongue cancer in 2013, and he received surgery
and post-operative radiation treatment through 2014. To treat the residual chronic
nerve pain in his neck, Henderson began receiving a narcotic pain medication, Norco,
three times a day in the form of a 10-milligram oral tablet (Norco 10). After several
years of use, a nurse caught Henderson attempting to divert his Norco 10 prescription
in the prison pill line on May 2, 2017.1 To little surprise, the Lexington Correctional
Center medical doctor, Defendant Dr. Ross Fisher, revoked Henderson’s Norco 10
1 The nurse described the events as follows: “This nurse scanned inmate’s ID, checked his name with his meds, ensured it was proper time to admin meds, popped meds out of prepacked bubble pack into an appropriate medication cup, put cup with contents into the drawer that is under the pill window, and slid the drawer open so the inmate could obtain his meds. When inmate took meds out of the drawer he put an already empty medication cup on top of his crushed Norco 10. So when this inmate tipped the medication cups back to simulate proper admin of meds the crushed Norco 10 was stuck in between the two medication cups.” R. at 63. 2 prescription the next day. In his medical report addressing the matter, Dr. Fisher
stated he “[w]ill not plan any alternative [prescription] pain meds, including
neuropathy meds, given his [reaction] last summer w[ith his] trial of [G]abapentin,”
an alternative prescription that treats neuropathic pain that made Henderson
nauseous. Id. at 101. Dr. Fisher concluded Henderson is “out of luck regarding pain
meds through medical now”; he “has to live with [the] consequences of his actions &
behavior & diversion of meds clearly support that he does not need med.” Id.
When Henderson asked why his prescription had been terminated, Dr. Fisher
explained, “You were caught diverting (palming) them—a misconduct write up and
incident report filed. You will no longer get narcotic pain meds at this facility—You
have previously been told of this consequence.” Id. at 117. Indeed, based on prison
health records, this was not Henderson’s first incident of diversion; records indicate
Henderson “had been accused of similar behavior about one year [prior]” and prison
medical staff had warned Henderson about the “no tolerance policy” for substance
abuse at least twice. Id. at 101; see id. at 104, 107 (consequences of diversion
explained to Henderson on May 24, 2016 and August 18, 2016).
Outside specialists had mixed responses to how to treat Henderson’s pain after
the Norco 10 prescription ended. First, on May 8, 2017, Henderson saw an outside
medical specialist who suggested that “from patient’s complaints it sounds like he
would benefit from being restarted on his previous chronic pain regimen of Norco
10.” R. at 99. The doctor continued, directing that “[t]his regimen should be provided
and monitored by facility providers.” Id. At the next appointment on May 19, 2017,
3 the physician assistant who treated Henderson noted his continued neuropathic pain
but stated he would not prescribe opiate pain medication. The physician assistant
noted he “[w]ould consider [a] trial of TCA for neuropathy, but given patient’s age,
CV risk factors and common (anticholinergic) side-effects of this class of
medication,” he did “not feel it is the safest choice, especially given the high level of
sedation typically seen with the dosage needed to have neuropathy alleviating
effects.” Id. at 95. A third specialist saw Henderson on November 6, 2017, and the
doctor wrote in his report, “Given patient’s complaints and symptoms he may benefit
from resumption of chronic pain regimen, to be provided and administered per
facility providers[’] discretion.” Id. at 87. No outside specialist issued a new
prescription, but all indicated a concern about the chronic pain.
Ultimately, Dr. Fisher and the prison medical staff did not reinstate
Henderson’s prescription. As far as the appellate record indicates, although
alternatives were considered, no chronic pain management regimen was instituted to
treat Henderson. But Henderson did continue with his physical therapy treatment and
continued to see outside specialists. This wasn’t enough for Henderson. He filed a
grievance and appeal seeking reinstatement of his Norco 10 prescription, which were
denied. In response, Henderson filed a pro se civil rights complaint alleging his
Eighth and Fourteenth Amendment rights had been violated. For relief, Henderson
seeks access to Norco 10, a different prison doctor, and monetary damages from each
defendant. Defendants prepared a report under Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978), containing relevant witness testimony, documents, and administrative
4 rules and policies. Along with filing the Martinez report, Defendants moved for
dismissal and summary judgment. The district court granted the joint motion,
adopting the magistrate judge’s report and recommendation that the court dismiss
Henderson’s Fourteenth Amendment claim and grant Defendants’ motion for
summary judgment regarding the Eighth Amendment claim. Henderson now appeals.
B. Standard of Review
Summary judgment is appropriate only “if 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). In reviewing a district court’s grant of summary
judgment, we examine the record de novo and “may affirm for any reason supported
by the record.” Hornady Mfg. Co. v. Doubletap, Inc., 746 F.3d 995, 1005 n.8 (10th
Cir. 2014). We also “review de novo the district court’s grant of a Rule 12(b)(6)
motion to dismiss.” Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). In
reviewing both summary judgment orders and 12(b)(6) dismissals, we “draw[] all
reasonable inferences and resolv[e] all factual disputes in favor of the non-moving
party.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (internal
quotation marks omitted) (summary judgment review); see also Peterson, 594 F.3d at
727 (in reviewing orders to dismiss under 12(b)(6), all well-pled factual allegations
are accepted as true and viewed in the light most favorable to the nonmoving party).
Because Henderson is pro se, we liberally construe his pleadings, stopping “at the
point at which we begin to serve as his advocate.” United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009).
5 C. Eighth Amendment Claim
a. Henderson Failed to Allege Defendants Atkinson, Braggs, and Honaker Personally Participated in Any Alleged Constitutional Violation
As a threshold matter, “[s]upervisory status alone does not create § 1983
liability.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). As such, an
inmate must show “an affirmative link . . . between the constitutional deprivation and
either the supervisor’s personal participation, his exercise of control or direction, or
his failure to supervise.” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997)
(internal quotation marks and alterations omitted). The only connection Henderson
has offered between an alleged violation of his constitutional rights and Defendants
Atkinson, Braggs, and Honaker is their participation in the administrative grievance
and appeal process. That’s not enough. The “mere response and denial of [an
inmate’s] grievance are insufficient to establish the requisite personal participation
under § 1983.” Requena v. Roberts, 893 F.3d 1195, 1216 (10th Cir. 2018).
Accordingly, Defendants Atkinson, Braggs, and Honaker are entitled to judgment as
a matter of law on the Eighth Amendment claim against them.
b. Dr. Fisher Is Also Entitled to Judgment as a Matter of Law on the Deliberate Indifference Claim
Henderson has adequately alleged Dr. Fisher’s personal participation, but the
claims against him still fail as a matter of law. The Eighth Amendment protects
prisoners from “unnecessary and wanton infliction of pain,” including prison
officials’ deliberate indifference to inmates’ serious medical needs. Estelle v.
6 Gamble, 429 U.S. 97, 104 (1976). For a prisoner to succeed on a claim of deliberate
indifference, he must show (1) a “sufficiently serious” medical need, Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000), and (2) prison officials knew of and
disregarded “an excessive risk to inmate health or safety,” Farmer v. Brennan, 511
U.S. 825, 837 (1976). The first prong of this standard is undisputed—Defendants
have conceded Henderson’s medical condition is sufficiently serious. The remaining
question, therefore, is whether Dr. Fisher has shown he is entitled to judgment as a
matter of law regarding the subjective component of this test. As the district court
correctly concluded, he has.
Where, as here, a prison official has discontinued an inmate’s access to a
narcotic substance because of that inmate’s alleged abuse of his medication, the
prisoner has a hard row to hoe to show deliberate indifference. If anything, the
discontinuation “reflects a legitimate penological interest in prevention of drug
abuse.” Todd v. Bigelow, 497 F. App’x 839, 841 (10th Cir. 2012) (holding no
deliberate indifference when inmate’s prescription revoked due to diversion and
prison doctors prescribed a less effective alternative). As unhappy about the change
as Henderson may be, an inmate has only a constitutional right to care, “not to the
type or scope of medical care which he personally desires.” Henderson v. Sec’y of
Corr., 518 F.2d 694, 695 (10th Cir. 1975) (internal quotation marks omitted).
The undisputed evidence shows that, throughout his time at Lexington
Correctional Facility, Henderson received continuous and extensive care to treat his
cancer and its residual effects. The prison health care providers tried a variety of
7 approaches and prescriptions to treat Henderson’s chronic pain, and it was not until
he was caught diverting medication (after multiple allegations and warnings) that he
finally lost his prescription. At the heart of this civil rights complaint is Henderson’s
access to narcotic pain medication, Norco 10—he wants it back. But given the
multiple allegations of diversion against him, the several warnings he received about
the prison’s zero-tolerance policy, the heightened concern about diversion in the
prison environment, and the alternative treatments explored, Dr. Fisher’s ultimate
decision to terminate Henderson’s Norco 10 prescription simply does not rise to the
level of utter disregard for inmate health and safety. See Johnson v. Richins, 438 F.
App’x 647, 649 (10th Cir. 2011) (holding no deliberate indifference when prison
officials suspended inmate’s prescription for suspected diversion of his medication).
Further, despite Henderson’s reliance on them, the outside specialists’ notes
regarding the reinstatement of Henderson’s narcotic prescription do not change the
analysis, particularly where one explicitly left the ultimate decision to Dr. Fisher’s
discretion, the other merely offered reinstatement as a suggestion, and the third
declined to reinstate the prescription outright. See Vaughn v. Lacey, 49 F.3d 1344,
1346 (8th Cir. 1995) (doctors’ “disagreement as to the proper course of [a prisoner’s]
treatment” is “not actionable under the Eighth Amendment”).
The reach of the Eighth Amendment is limited—“the negligent failure to
provide adequate medical care, even one constituting medical malpractice, does not
give rise to a constitutional violation.” Self v. Crum, 439 F.3d 1227, 1233 (10th Cir.
2006) (internal quotation marks omitted). Where, as here, “a doctor orders treatment
8 consistent with the symptoms presented and then continues to monitor the patient’s
condition, an inference of deliberate indifference is unwarranted under our case law.”
Id. at 1232-33. Although Dr. Fisher declined to reinstate Henderson’s Norco 10
prescription, pain management alternatives were explored, and Henderson’s
condition continued to be monitored closely. A disagreement, even one as sharp as
this, between a prisoner and the doctor regarding his “diagnosis or a prescribed
course of treatment” is insufficient as a matter of law to show a constitutional
violation. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
D. Fourteenth Amendment Claim
Also fruitless is Henderson’s argument he was denied due process when his prison
grievances did not lead to a new Norco 10 prescription. Henderson asserts the record
does not support Dr. Fisher’s explanation because he did not receive a write-up for
the alleged diversion and no incident report was ever filed on the matter. But as we
have explained before, “prisoners have no liberty interest in prison grievance
procedures.” Todd, 497 F. App’x at 842; see also Richins, 438 F. App’x at 649 (an
inmate’s “claim that [a prison official] mishandled his prison grievances does not
implicate any due-process rights”). As far as prison regulations go, state-created
liberty interests protected by the Fourteenth Amendment are “limited to freedom
from restraint” that “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995); see Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993) (“[A] failure
to adhere to administrative regulations does not equate to a constitutional
9 violation.”). No such restraint is at issue here. Accordingly, Henderson has failed to
state a claim upon which relief may be granted and the district court’s order to
dismiss was appropriate.
E. Conclusion
The district court’s order granting summary judgment and dismissal is
AFFIRMED. Henderson’s motion for leave to proceed in forma pauperis is granted.
The relevant statute, 28 U.S.C. § 1915(a)(1), does not permit litigants to avoid
payment of filing and docketing fees, only the prepayment of those fees. Although
we have disposed of the matter on the merits, Henderson remains obligated to pay all
filing and docketing fees until paid in full.
Entered for the Court
Gregory A. Phillips Circuit Judge