Appellate Case: 21-3008 Document: 010110648547 Date Filed: 02/23/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 23, 2022 _________________________________ Christopher M. Wolpert Clerk of Court JEFFREY J. SPERRY,
Plaintiff - Appellant,
v. No. 21-3008 (D.C. No. 5:18-CV-03119-EFM-ADM) CORIZON HEALTH, INC.; AMBER (D. Kan.) BRUNDEGE; REBECCA TALBERT; RAYMOND ROBERTS; JOHNNIE GODDARD; DOUGLAS BURRIS; REX PRYOR; CHRISTOPHER ROSS,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________
This appeal grew out of the medical care provided to a Kansas
inmate: Mr. Jeffrey Sperry. Mr. Sperry was diagnosed in July 2014 with
Hepatitis C. That year, a new antiviral medication (Harvoni) became
* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 21-3008 Document: 010110648547 Date Filed: 02/23/2022 Page: 2
available to treat certain types of Hepatitis C. Vasquez v. Davis, 882 F.3d
1270, 1273 (10th Cir. 2018). Mr. Sperry requested the new treatment, but
the medical provider (Corizon Health, Inc.) declined his request. Mr.
Sperry responded by suing state prison officials, Corizon Health, and two
of Corizon Health’s nurses. The district court rejected all of the claims,
dismissing some, granting judgment on the pleadings for others, and
awarding summary judgment on the remaining claims. We affirm.
I. The district court didn’t err in rejecting the rulings on non- dispositive issues.
Mr. Sperry’s chief disagreement lies with the dispositive rulings (the
dismissals, judgments on the pleadings, and awards of summary judgment).
But Mr. Sperry also complains of four other rulings:
1. the entry of a scheduling order,
2. the denial of leave to amend the complaint,
3. the refusal to appoint counsel, and
4. the denial of a request to convene a medical screening panel.
We conclude that the district court did not err in making these rulings.
A. We have jurisdiction to address these rulings.
The defendants challenge our jurisdiction to consider these issues,
arguing that Mr. Sperry failed to designate the rulings in his notice of
appeal. We reject this argument.
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In the notice of appeal, the appellant must designate the orders being
appealed. Fed. R. App. P. 3(c)(1)(B). This designation ordinarily limits the
scope of our jurisdiction. HCG Platinum, LLC v. Preferred Prod.
Placement Corp., 873 F.3d 1191, 1199 n.8 (10th Cir. 2017). But nonfinal
orders typically merge into the final judgment, triggering appellate
jurisdiction over earlier rulings. McBride v. CITGO Petroleum Corp., 281
F.3d 1099, 1104 (10th Cir. 2002).
In his notice of appeal, Mr. Sperry designated the final judgment, so
the earlier rulings merged into that judgment. Given this merger into the
final judgment, the notice of appeal triggered our jurisdiction to address
entry of the scheduling order, the ruling on the motion to amend the
complaint, the decision whether to appoint counsel, and the ruling on the
request to convene a medical screening panel.
B. Entry of the Scheduling Order
Roughly two years into the case, the magistrate judge entered a
scheduling order. Mr. Sperry challenges the validity of that order, and we
reject his challenge.
In most civil cases, the court must enter a scheduling order. Fed. R.
Civ. P. 16(b)(1). But the District of Kansas has exempted prisoner cases
from this requirement. D. Kan. Rules 9.1(k), 16.1(b)(2). So in the District
of Kansas, a court need not enter a scheduling order in a prisoner case.
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Despite this exemption, the district court can enter a scheduling
order. See D. Kan. Rule 16.1(b) (stating that prisoner cases are exempt
from the requirement for entry of a scheduling order “[u]nless the court
orders otherwise in a particular case”).
In this case, the magistrate judge applied only some of the
requirements of Federal Rule of Civil Procedure 16. But this too was
within the magistrate judge’s discretion, as the District of Kansas allows
the district court to impose some or all of the requirements of Rule 16 “if
necessary to effectively manage an action.” D. Kan. Rule 9.1(k). As a
result, we conclude that the magistrate judge did not err in entering a
scheduling order.
C. Denial of Leave to Amend
Mr. Sperry moved for leave to amend to add defendants, and the
magistrate judge denied the motion. In reviewing the denial of leave, we
apply the abuse-of-discretion standard. Castanon v. Cathey, 976 F.3d 1136,
1144 (10th Cir. 2020). In our view, the magistrate judge acted within her
discretion.
In denying leave to amend, the magistrate judge reasoned that Mr.
Sperry had waited too long to request amendment. This court has
recognized a litigant’s unexplained delay as a reason to deny leave to
amend. Id. But Mr. Sperry argues that he had two reasons to wait before
requesting leave to amend:
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1. He didn’t know who else to sue until he received a copy of the state’s investigative report. See Martinez v. Aaron, 570 F.2d 317, 319–20 (10th Cir. 1978) (en banc) (per curiam) (discussing the process for submitting investigative reports in prisoner cases).
2. He needed to conduct discovery before deciding which parties to add.
But in district court, Mr. Sperry did not say anything about his need
to conduct discovery; he said only that he needed to wait on the
investigative report. But once the defendants filed the investigative report,
Mr. Sperry waited roughly eleven months before seeking leave to amend.
He has furnished us with a plausible explanation, stating that he
wanted to conduct discovery rather than file multiple requests to add
parties. But Mr. Sperry didn’t tell the magistrate judge about the alleged
need to conduct discovery. The magistrate judge couldn’t abuse her
discretion by rejecting an argument that hadn’t been made. So the
magistrate judge did not abuse her discretion in denying leave to amend.
D. Denial of the Request for Appointment of Counsel
Mr. Sperry asked not only for leave to amend but also for
appointment of counsel. The magistrate judge declined to appoint counsel.
The magistrate judge couldn’t force an attorney to represent Mr.
Sperry in this case; at most, the court could ask an attorney to consider
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taking the case. 28 U.S.C. § 1915(e)(1); 1 see Rachel v. Troutt, 820 F.3d
390, 396 (10th Cir. 2016) (“Courts are not authorized to appoint counsel in
§ 1983 cases; instead, courts can only ‘request’ an attorney to take the
case.” (quoting 28 U.S.C. § 1915(e)(1))). And there’s no statutory basis for
paying attorneys for their time in civil cases. Id. at 397.
Many indigent plaintiffs ask courts for help in obtaining
representation. See id. So magistrate judges must use discretion in
determining when to solicit representation for indigent litigants. See id. So
we determine only whether the magistrate judge abused her discretion
when ruling on a request for counsel. Id.
In exercising this discretion, the district court considers the merits,
the nature of the claims, the claimant’s ability, and the complexity of the
issues. Id. Applying these factors, the magistrate judge reasoned that the
claims didn’t appear particularly meritorious, the legal issues weren’t too
complex, and Mr. Sperry could adequately present his claims.
This explanation appears reasonable. Though the magistrate judge
wasn’t rendering a final decision, she did need to consider the merits. And
in considering the merits, the magistrate judge noted that Mr. Sperry had
1 Under 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford counsel.” But Mr. Sperry has paid the filing fees in multiple cases and never argued in district court that he couldn’t afford counsel. Instead, he relied on limitations in his ability to contact attorneys and to use the law library. 6 Appellate Case: 21-3008 Document: 010110648547 Date Filed: 02/23/2022 Page: 7
obtained treatment for his hepatitis. That treatment would have created a
hurdle for Mr. Sperry to prove deliberate indifference.
Mr. Sperry points to the complexity of the factual issues. But the
magistrate judge didn’t question the complexity of the factual issues; she
reasoned instead that the legal issues didn’t appear overly complex. And
that appraisal appears reasonable.
Finally, the magistrate judge reasoned that Mr. Sperry had shown an
ability to adequately present his claims. This appears to be a reasonable
appraisal of Mr. Sperry’s abilities. He says that he’s a jailhouse lawyer and
has helped hundreds of other inmates. This statement is plausible: His
briefs in district court were well-written. 2
Because the magistrate judge’s explanation was reasonable, we
conclude that she did not abuse her discretion in declining to request
counsel for Mr. Sperry.
E. Denial of the Request to Convene a Medical Screening Panel
Among the claims was one for medical malpractice. This kind of
claim often requires expert testimony, so Kansas has devised a procedure
to help indigent claimants. Under this procedure, either party can ask the
court to convene a medical screening panel consisting of healthcare
providers. Kan. Stat. Ann. § 65-4901. The panel decides whether the
2 His appellate briefs are also well-written. 7 Appellate Case: 21-3008 Document: 010110648547 Date Filed: 02/23/2022 Page: 8
treatment had been negligent and, if it had been, whether that negligence
caused damages. Id. § 65-4903.
Mr. Sperry made two requests for a medical screening panel. Though
the court denied both requests, Mr. Sperry challenges only the denial of his
second request. The magistrate judge gave several reasons for denying this
request. Among these reasons was the delay in his first motion; Mr. Sperry
disagrees with this reason.
The deadline to request a medical screening panel is 60 days from
service. Kan. Supreme Court Rule 142(c). Corizon Health was served on
October, 29, 2018; but the record doesn’t say when the nurses were served.
Mr. Sperry made his first request for a medical screening panel on
December 31, 2018—63 days after service on Corizon Health. So Mr.
Sperry missed the 60-day deadline for Corizon Health.
He argues that
the return of service wasn’t filed until November 6, 2018, and
the district court denied the first request without prejudice.
We reject both arguments.
First, the 60-day deadline starts with service, not the filing of a
return of service. Kan. Supreme Court Rule 142(c).
Second, the dismissal without prejudice didn’t extend the deadline;
indeed, the request had been late as to Corizon Health even before the
district court ruled. 8 Appellate Case: 21-3008 Document: 010110648547 Date Filed: 02/23/2022 Page: 9
In denying the request to convene a medical screening panel, the
magistrate judge allowed Mr. Sperry to submit a new request because of
uncertainty over when the two nurses were served. But Mr. Sperry didn’t
file a new request for his claims against the two nurses.
Mr. Sperry questions the need to file a third request, stating that a
third filing would serve little purpose. But the magistrate judge explained
that with a third request, Mr. Sperry could show his ability to supply the
needed materials and pay for the panel’s time. See Kan. Stat. Ann. § 65-
4907 (addressing compensation of the panel members).
Mr. Sperry points out that the statute doesn’t require an ability to pay
the medical screening panel. But the statute does require compensation of
the panel members. Id. And for the panel to perform, Mr. Sperry needed to
show his ability to supply the needed materials in a timely manner. In our
view, the magistrate judge acted within her discretion to ensure that the
panel members would obtain the needed materials and compensation for the
work.
II. The district court didn’t err in denying the defendants’ motions for dismissal and judgment on the pleadings.
The defendants consisted of two groups: (1) prison officials and
(2) Corizon Health and two of its nurses. Both groups moved to dismiss.
But the second group moved for dismissal after they filed answers. So this
group’s motion is treated as a motion for judgment on the pleadings.
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Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). For
the ruling on this motion, we apply the same standard that we use in
deciding motions to dismiss. Id.
Under this standard, we apply de novo review, viewing the
allegations in the light most favorable to Mr. Sperry and determining
whether the complaint contains sufficient facts to state a plausible claim
for relief. Shimomura v. Carlson, 811 F.3d 349, 358 (10th Cir. 2015).
Applying this standard, we find no error in the rulings, which addressed
claims involving violation of the Eighth Amendment, civil conspiracy,
medical malpractice, outrage, breach of fiduciary duty, and battery.
A. Violation of the Eighth Amendment
The district court granted the defendants’ motions on all of the
Eighth Amendment claims. These rulings were correct.
The Eighth Amendment claims involve deliberate indifference to Mr.
Sperry’s affliction with Hepatitis C. But the prison officials had
outsourced the medical care to Corizon Health.
For this claim, the statutory vehicle is 42 U.S.C. § 1983. Under
§ 1983, Mr. Sperry had to allege facts showing that the prison officials had
personally participated in the constitutional violations. Moya v. Garcia,
895 F.3d 1229, 1233 (10th Cir. 2018). For participation, Mr. Sperry relies
on his grievances and the prison officials’ failure to act. But the denial of a
grievance isn’t enough for participation. See Requena v. Roberts, 893 F.3d
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1195, 1216 (10th Cir. 2018) (stating that “the mere response and denial of
[the plaintiff’s] grievance are insufficient to establish the requisite
personal participation under § 1983”); Gallagher v. Shelton, 587 F.3d
1063, 1069 (10th Cir. 2009) (“[A] denial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by plaintiff,
does not establish personal participation under § 1983.”). Given Mr.
Sperry’s reliance on the handling of his grievances, we conclude that the
district court properly dismissed the Eighth Amendment claims against the
prison officials.
B. Corizon Health and the Two Nurses
Mr. Sperry also sued Corizon Health and two of its nurses. Though
he eventually obtained drug treatment (Epclusa), he alleged that the two
nurses had waited too long.
Even if the nurses had delayed, Mr. Sperry could prevail only by
showing substantial harm from the delay, such as a “lifelong handicap,
permanent loss, or considerable pain.” Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005) (internal quotation marks omitted). But Mr. Sperry did not
allege any facts reflecting substantial harm from the delay in administering
drug treatment. As a result, the district court properly dismissed the Eighth
Amendment claims against the two nurses. And without a violation by the
two nurses, Mr. Sperry couldn’t prevail against Corizon Health because its
liability depended on an employee’s constitutional violation. Olsen v.
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Layton Hills Mall, 312 F.3d 1304, 1317–18 (10th Cir. 2002). The district
court thus properly dismissed the Eighth Amendment claim against Corizon
Health and the two nurses.
C. Civil Conspiracy
The claim of civil conspiracy rests on a single statement, implying a
conspiracy from the prison officials’ refusal to intervene with Corizon
Health. This conclusory allegation is not enough to state a valid claim. See
Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998).
D. Medical Malpractice
The district court dismissed the malpractice claims against the prison
officials, but not against Corizon Health or its nurses.
In dismissing the claim against the prison officials, the district court
reasoned that they couldn’t have committed medical malpractice because
they weren’t healthcare professionals. We agree with this reasoning. See
Perkins v. Susan B. Allen Mem’l Hosp., 146 P.3d 1102, 1105 (Kan. Ct.
App. 2006) (“Medical malpractice is negligence of a healthcare
professional in the diagnosis, care, and treatment of a patient.”).
E. Outrage
In Kansas, the tort of outrage requires a showing of extreme and
outrageous conduct. Valadez v. Emmis Commc’ns, 229 P.3d 389, 394 (Kan.
2010). The district court concluded that the allegations hadn’t created a
plausible claim of extreme and outrageous conduct.
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Mr. Sperry argues that the court should have left this determination
to the jury. But under Kansas law, the district court had to make this
determination in the first instance. Id. So we reject Mr. Sperry’s challenge
to the dismissal of this claim.
F. Breach of Fiduciary Duty
The district court reasoned that Mr. Sperry hadn’t adequately alleged
fiduciary status for the prison officials, Corizon Health, or the two nurses.
We agree with the district court’s ruling as to the prison officials.
For this ruling, the court concluded that Kansas law would not recognize a
fiduciary relationship between prison officials and inmates. We agree.
For Corizon Health and the two nurses, we assume for the sake of
argument that a fiduciary relationship existed. But even if such a
relationship existed, Mr. Sperry would have needed to plead a plausible
basis to infer a breach of that duty.
He claimed that Corizon Health and the two nurses had delayed in
telling him of his diagnosis (Hepatitis C). In dismissing the claim, the
district court reasoned that Mr. Sperry hadn’t
adequately alleged a failure to disclose his diagnosis or
alleged a failure by a fiduciary to tell him of his diagnosis.
Mr. Sperry identifies no flaws with this reasoning, so we affirm the
dismissal of this claim. See Nixon v. City & Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015) (stating that the appellant must “explain what 13 Appellate Case: 21-3008 Document: 010110648547 Date Filed: 02/23/2022 Page: 14
was wrong with the reasoning that the district court relied on in reaching
its decision”); see also Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840–41 (10th Cir. 2005) (stating that even unrepresented litigants
must present an argument citing the record and providing legal authority).
G. Battery
Mr. Sperry also claims battery, which requires an “unprivileged
touching or striking.” McElhaney v. Thomas, 405 P.3d 1214, 1219 (Kan.
2017) (internal quotation marks omitted). But Mr. Sperry doesn’t allege
that anyone touched him without a privilege. The district court thus acted
properly in dismissing this claim.
III. The district court didn’t err in granting summary judgment on the remaining claims.
These rulings leave claims for medical malpractice and negligence.
On these claims, the district court granted summary judgment to Corizon
Health and the two nurses. We agree with this ruling.
For claims of malpractice or negligence on the part of a healthcare
professional, the plaintiff ordinarily must present expert testimony because
the appropriate standard of care and causation ordinarily fall outside the
knowledge of laypersons. Perkins v. Susan B. Allen Mem’l Hosp., 146 P.3d
1102, 1105–06 (Kan. Ct. App. 2006). The district court properly concluded
that laypersons are ill-equipped to assess the standard of care to treat
Hepatitis C and the issue of causation.
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Mr. Sperry makes four arguments challenging the district court’s
conclusion:
1. He would have had expert testimony if the district court had convened a medical screening panel.
2. The evidence doesn’t entitle the defendants to judgment as a matter of law.
3. Expert testimony isn’t necessary when the issue involves common knowledge.
4. Support for the claims could come from the defense witnesses.
We reject each argument.
The standard of care for treating hepatitis doesn’t fall within the
realm of common knowledge, so Mr. Sperry needed expert testimony.
Though a medical screening panel might have credited Mr. Sperry’s claim,
he cannot rely on the failure to convene a medical screening panel because
he waited too long to make his request.
He points to the defendants’ failure of proof. But these were his
claims, and the defendants could properly argue that Mr. Sperry had lacked
evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The
defendants’ argument thrust the burden of persuasion on Mr. Sperry,
requiring him to present supporting evidence for his claims. See id. But the
defendants not only argued that Mr. Sperry lacked evidence; they also
presented detailed evidence on the standard of care for patients with
Hepatitis C, and Mr. Sperry failed to present contrary evidence. Mr. Sperry
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argues that he could rely on testimony from defense witnesses. That’s true,
but he didn’t present such testimony.
We thus conclude that the district court acted properly in granting
summary judgment to Corizon Health and the two nurses on the claims of
medical malpractice and negligence.
Affirmed.
Entered for the Court
Robert E. Bacharach Circuit Judge