Riley v. Grasso

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 2, 1998
• Docket: 97-6234
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 2 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

GARY KEVIN RILEY,

Plaintiff-Appellant,

v. No. 97-6234 (D.C. No. 96-CV-1912) ANTHONY GRASSO, (W.D. Okla.)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff, an inmate of the State of Oklahoma appearing pro se, appeals

from the district court’s order entering judgment in favor of defendant in this

civil rights suit filed under 42 U.S.C. § 1983. We exercise jurisdiction under

28 U.S.C. § 1291, grant plaintiff’s motion to proceed in forma pauperis on appeal,

and affirm.

Plaintiff broke a bone in his right hand during his arrest for drunk and

disorderly behavior on November 3, 1994. He alleged that defendant, a police

officer, violated his Eighth and Fourteenth Amendment rights to be free from

cruel and unusual punishment by denying him medical care for seven hours

afterwards. In his verified complaint, plaintiff alleged that he complained to

defendant of pain in his right hand shortly after his arrest and again when he was

being placed in a cell, but that defendant ignored his injury. Seven hours later,

plaintiff noticed his hand had swollen, and complained again to someone else.

At that time, plaintiff was taken to a hospital for medical care. He was told by

medical personnel that his hand could not be placed in a cast because it was too

swollen, and surgery was required. He was told he could have had a cast placed

instead of surgery if he had received treatment when his hand was first broken.

Plaintiff contends his hand was permanently damaged as a result of not receiving

immediate medical treatment.

-2- Defendant filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The

magistrate judge granted plaintiff leave to proceed in forma pauperis in the

district court, treated defendant’s motion as one for summary judgment under

Fed. R. Civ. P. 56, and recommended that judgment be entered for defendant.

Plaintiff filed no objections to the magistrate judge’s recommendation, which the

district court adopted.

Because plaintiff was properly informed that his right to district court and

appellate review depended on his filing objections to the magistrate judge’s

recommendation, his failure to do so amounts to a waiver of appellate review.

See Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996). Even if he had

filed objections, as a pretrial detainee, his constitutional rights were violated only

if defendant knew of his serious medical need and was deliberately indifferent to

it. See Barrie v. Grand County, 119 F.3d 862, 868-69 (10th Cir. 1997). “‘[A]n

official . . . acts with deliberate indifference if [his] conduct . . . disregards a

known or obvious risk that is very likely to result in the violation of a prisoner’s

constitutional rights.’” Id. at 869 (quoting Berry v. City of Muskogee, 900 F.2d

1489, 1496 (10th Cir. 1990)). Although defendant ignored plaintiff’s initial

complaints of pain, plaintiff was taken to the hospital for treatment as soon as he

noticed his hand had swollen and showed it to a police officer. We hold that the

-3- facts plaintiff alleged do not constitute deliberate indifference as a matter of law,

and plaintiff has failed to allege a constitutional violation.

Plaintiff’s motion to proceed on appeal in forma pauperis is GRANTED.

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge

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