Filed: Dec. 06, 2019
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 6, 2019 _ Elisabeth A. Shumaker Clerk of Court ASA S. FOREMAN, a/k/a Asa S. Forman, Plaintiff - Appellant, v. No. 19-7020 (D.C. No. 6:18-CV-00071-RAW-SPS) TERESA DELORIS ELAM, LPN, Jess (E.D. Okla.) Dunn Correctional Center, in her official and individual capacity; ROBERT RICHARD EDDE, M.D., Jess Dunn Correctional Center, in his official and individual capacity; MICHELLE LEHNUS, Medic
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 6, 2019 _ Elisabeth A. Shumaker Clerk of Court ASA S. FOREMAN, a/k/a Asa S. Forman, Plaintiff - Appellant, v. No. 19-7020 (D.C. No. 6:18-CV-00071-RAW-SPS) TERESA DELORIS ELAM, LPN, Jess (E.D. Okla.) Dunn Correctional Center, in her official and individual capacity; ROBERT RICHARD EDDE, M.D., Jess Dunn Correctional Center, in his official and individual capacity; MICHELLE LEHNUS, Medica..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 6, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ASA S. FOREMAN, a/k/a Asa S. Forman,
Plaintiff - Appellant,
v. No. 19-7020
(D.C. No. 6:18-CV-00071-RAW-SPS)
TERESA DELORIS ELAM, LPN, Jess (E.D. Okla.)
Dunn Correctional Center, in her official
and individual capacity; ROBERT
RICHARD EDDE, M.D., Jess Dunn
Correctional Center, in his official and
individual capacity; MICHELLE
LEHNUS, Medical Services Administrator,
Jess Dunn Correctional Center, in her
official and individual capacity; ROBERT
CORNEL BALOGH, M.D., Joseph Harp
Correctional Center, in his official and
individual capacity; JOEL BRENT
MCCURDY, M.D., Director of Medical
Services for the Oklahoma Department of
Corrections, in his official and individual
capacity; HEATHER HASENMEYER, ,
a/k/a Heather Hansmeyer, Physician
Assistant at Jess Dunn Correctional Center,
in her official and individual capacity; J.
MARLAR, M.D., in his official and
individual capacity; JONNA PERRY, Case
manager at Jackie Brannon Correctional
Center, in her official and individual
capacity; SGT. DAVID SUMMERS, in his
official and individual capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, O’BRIEN, and CARSON, Circuit Judges.
_________________________________
Through counsel, Oklahoma prisoner Asa S. Foreman appeals from the district
court’s Fed. R. Civ. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 civil rights
complaint. Although the complaint purported to set forth numerous claims against
various defendants, on appeal, Foreman challenges only the dismissal of his Eighth
Amendment claims against prison nurse Teresa Elam and prison doctor Robert Edde
regarding treatment he received after suffering a stroke. He therefore has abandoned
all his other claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
The facts underlying the claims against Elam and Edde are sparse. Early in the
morning of April 27, 2016, while Foreman was incarcerated at Jess Dunn
Correctional Center (JDCC), he suffered a stroke. He presented himself to Elam in
the medical unit at approximately 6:45 a.m., reporting “[n]umbness on left side,
slurred speech, [and] having problems with balance” and saying he thought he had a
stroke. Aplt. App. at 73 n.1; see also
id. at 80. Elam took his vital signs, which were
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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.
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good, and she did not believe he had a stroke. She told him to lie down until Edde
arrived at 8:30 a.m.
Foreman returned to his bunk to lie down, but before seeing Edde, he had
another stroke. Another inmate took him back to the medical unit, where Edde
examined him and then had him transported to Lindsay Municipal Hospital. The
physicians at Lindsay referred Foreman to OU Medical Center, but “[a] John Doe,
transportation officer/staff member informed [Foreman] that Defendant Edde had not
given his approval for a trip to OU, after he had been informed that the trip was
needed.”
Id. at 74. Foreman therefore returned to JDCC.
There is no indication either Elam or Edde saw Foreman at JDCC after he
returned from Lindsay. Another medical staff member, however, started Foreman on
aspirin, which he alleges is contraindicated for stroke patients. On April 29, he had
another stroke and an aneurysm. He was transported to an emergency room and then
on to St. Johns Medical Center in Tulsa, Oklahoma, where he remained in intensive
care for approximately four days. After his treatment at St. Johns, he was transferred
out of JDCC to another prison.
We review a Rule 12(b)(6) dismissal de novo. Gee v. Pacheco,
627 F.3d 1178,
1183 (10th Cir. 2010). Because Foreman’s district-court filings and appellate brief
were drafted by counsel, we do not afford them the liberal construction we give to
pro se filings. See Celli v. Shoell,
40 F.3d 324, 327 (10th Cir. 1994).
Federal pleading “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
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“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.”
Id. (brackets, citation, and
internal quotation marks omitted). Instead, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
Id. (internal quotation marks omitted). To
establish facial plausibility, the plaintiff must “plead[] factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”
Id. “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has . . . not shown . . . that the
pleader is entitled to relief.”
Id. at 679 (brackets and internal quotation marks
omitted).
“Iqbal establishes the importance of context to a plausibility determination.”
Gee, 627 F.3d at 1185. The Supreme Court has held prison officials’ “deliberate
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). An Eighth
Amendment claim has two prongs, one objective (the deprivation was sufficiently
serious), and one subjective (the official acted with a culpable state of mind).
See Farmer v. Brennan,
511 U.S. 825, 834 (1994); Self v. Crum,
439 F.3d 1227,
1230-31 (10th Cir. 2006). We assume the averments that Foreman suffered a stroke
plausibly allege the objective prong. See Davis v. Kayira,
938 F.3d 910, 914
4
(7th Cir. 2019) (“Everyone agrees that [the prisoner’s] stroke was an objectively
serious medical condition.”). That leaves the subjective prong.
In a prison-conditions case, the required culpable state of mind is “deliberate
indifference to inmate health or safety.”
Farmer, 511 U.S. at 834 (internal quotation
marks omitted). To be liable, an official must “know[] of and disregard[] an
excessive risk to inmate health or safety; the 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.”
Id. at 837. In the context of medical
care, negligent diagnosis or treatment is not enough to demonstrate a constitutional
violation. See
Estelle, 429 U.S. at 106;
Self, 439 F.3d at 1230. “[T]he subjective
component is not satisfied, absent an extraordinary degree of neglect, where a doctor
merely exercises his considered medical judgment.”
Self, 439 F.3d at 1232. Further,
“an official’s failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases be condemned as
the infliction of punishment.”
Farmer, 511 U.S. at 838.
Foreman’s claim against Elam apparently is based on her failure to
immediately treat him for a stroke on the morning of April 27. But the complaint
establishes that Elam examined Foreman, even if only briefly, that his vital signs
were good, and that she did not believe he had suffered a stroke. Thus, Elam did not
completely deny care or demonstrate “an extraordinary degree of neglect.”
Self,
439 F.3d at 1232. And the complaint fails to plead sufficient facts to establish the
stroke was “so obvious that even a layman would recognize the condition.”
Id.
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Accordingly, the complaint fails to overcome Farmer’s admonition a prison official
cannot be liable for a “failure to alleviate a significant risk that [s]he should have
perceived but did
not.” 511 U.S. at 838. At most, the allegations show negligent
diagnosis or treatment, which is insufficient to plausibly allege the subjective
component of an Eighth Amendment medical-care claim.
As for Edde, the complaint concedes he was not deliberately indifferent when
he saw Foreman and sent him to Lindsay for treatment. Instead, it faults him for not
approving a transfer from Lindsay to OU Medical Center. The complaint, however,
does not allege any facts regarding the transfer, other than an unknown source told
Foreman he was brought back to JDCC because Edde did not approve the transfer.
Even assuming the complaint adequately establishes Foreman was returned to JDCC
simply because of Edde’s non-approval, nothing in the complaint allows the
inference Edde was deliberately indifferent in not approving a transfer. Instead, the
complaint presents the type of “unadorned, the-defendant-unlawfully-harmed-me
accusation” Iqbal
disapproved, 556 U.S. at 678. At best, it raises the mere possibility
of misconduct by Edde, which is insufficient to state a plausible claim. See
id. at
678-79.
The district court’s judgment is affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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