Stoops v. Larson, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
JOHN STOOPS,

Plaintiff - Appellant,

v.

CHARLENE LARSON; BRITTANY
DOWIS; GRACE L. KIER; LORI
HOLTER; CORRECTIONAL HEALTH
PARTNERS; MARY MARGARET; D.
TOWNE; WILLIAM SHERWOOD, JR.,

Defendants - Appellees.

No. 20-1065
(D.C. No. 1:17-CV-01362-RM-NRN)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before MATHESON, KELLY, and EID, Circuit Judges.
**

_________________________________
Plaintiff-Appellant John Stoops, an inmate appearing pro se, appeals from the
district court’s final judgment granting summary judgment to various defendants and
closing the case. In his civil rights complaint pursuant to 42 U.S.C. § 1983, Mr.
Stoops alleged that the defendants violated his Eighth Amendment rights by

*
This order and judgment is not binding precedent, except under the doctrines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.
**
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.
FILED
United States Court of Appeals
Tenth Circuit

August 7, 2020

Christopher M. Wolpert
Clerk of Court
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providing delayed and inadequate medical care after he fractured his hip on June 9,
2015. Mr. Stoops received a replacement hip on June 16, 2015. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.

Background
Mr. Stoops suffered an epileptic seizure that caused him to fall and fracture his
hip. Emergency medical responders transported him to the medical services clinic in
a wheelchair, but the nurses ultimately sent him back to his living unit without
further treatment. Mr. Stoops endured serious pain for the next four days but
otherwise went about his days as normal. He alleges the injury in his hip was minor
when he fell and became far more serious as he walked about without treatment. He
complains that treatment was delayed after he was transported to the Denver Health
Medical Center on June 13, 2015, and that physical therapists there further damaged
his hip when they attempted to treat it. He contends that a correctional officer should
have intervened.
Mr. Stoops filed his complaint against employees of the Colorado Department
of Corrections and others, including four nurses and one correctional officer. The
district court reviewed the complaint and dismissed several claims against various
defendants including Lt. William Sherwood. After reviewing a third amended
complaint, a magistrate judge issued a report recommending that the court grant the
motion to dismiss filed by two defendants (Mary Margaret Towne and Correctional
Health Partners). The district court accepted and adopted the recommendation over
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Mr. Stoops’s objection. The remaining defendants (Charlene Larson, Brittany
Dowis, Grace Kier, and Lori Holter, all nurses) moved for summary judgment, which
the district court granted on the grounds of failure to exhaust administrative
remedies, a lack of evidence demonstrating an Eighth Amendment violation, and
qualified immunity.
On appeal, Mr. Stoops complains about the process and argues that the district
court erred (1) in dismissing Lt. Sherwood as a defendant because he should have
intervened to prevent injury caused by physical therapists, (2) in granting summary
judgment in favor of nurses Larson, Dowis, Kier, and Holter based on a failure to
exhaust administrative remedies (Mr. Stoops admits his grievance was untimely) and
on the merits, and (3) in dismissing the physical therapists (Jane Doe and Mary
Margaret Towne).

Discussion
The district court did not err in dismissing Lt. Sherwood. Aplees. Supp. App.
31. The Eighth Amendment prohibits deliberate indifference to an incarcerated
person’s serious medical needs, which includes intentional denial or delay of medical
care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To make an Eighth Amendment
claim, the plaintiff must show both an objectively serious medical condition and
subjective deliberate indifference on the part of a defendant. Craig v. Eberly, 164
F.3d 490, 495 (10th Cir. 1998). Mr. Stoops alleged that Lt. Sherwood was aware of
his condition, and present (and laughing) while the physical therapists were treating
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him. 1 R. 404, 406. Although he contends that Lt. Sherwood should have
intervened, no facts alleged suggest that Lt. Sherwood had any control over the
physical therapists, let alone any role in denying, delaying, or interfering with
treatment. See Estelle, 429 U.S. at 104–05. In these circumstances, exercising de
novo review, we conclude that the claim is not plausible given the high hurdle of
proving deliberate indifference to serious medical needs. Ashcroft v. Iqbal, 556 U.S.
662, 679–81 (2009) (plausibility standard).
In granting summary judgment in favor of nurses Larson, Dowis, Kier, and
Holter, the district court held that Mr. Stoops had failed to exhaust his administrative
remedies (an affirmative defense) because his grievance was untimely. 2 R. 130–31;
see 42 U.S.C. § 1997e(a); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).
In the alternative, the district court held that Mr. Stoops had not demonstrated
deliberate indifference to serious medical needs. 2 R. 132 (“[T]he gist of Plaintiff’s
claims is that Defendants should have done more at SCF to diagnose and treat his
hip. But viewing the record in the light most favorable to Plaintiff, he has shown, at
most, that Defendants may have been negligent in their diagnoses and treatment.”);
see Estelle, 429 U.S. at 105. The district court also determined that absent a
constitutional violation, these defendants were entitled to qualified immunity. 2 R.
130–31.
Exercising de novo review, we affirm the district court’s judgment regarding
these defendants on the grounds that Mr. Stoops (1) has not demonstrated that prison
officials acted in such a way that rendered his administrative remedies unavailable;
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and (2) that ignorance of the law generally does not excuse late filing. See Marsh v.
Soares, 223 F.3d 1217, 1221 (10th Cir 2000). We do note that such a dismissal is
without prejudice.
Finally, regarding the dismissal of the physical therapists, Mr. Stoops failed to
timely object to the magistrate judge’s May 15, 2019, report and recommendation,
which contained an explicit notice of the need to timely object within 14 days and the
consequences of not doing so. I R. 670. Although Mr. Stoops contended that his
objections were timely, they were not: his objections were dated June 4, 2019 (one
day after the period would have run assuming three days mailing, see Fed. R. Civ. P.
6(d)), and filed June 7, 2019. I R. 679, 683. Defendant Towne pointed out that a
party has only 14 days to object, I R. 688, but the district court resolved the
objections on the merits. I R. 699. In this circuit, we have a “firm waiver rule” that a
failure to object waives factual and legal objections. See Duffield v. Jackson, 545
F.3d 1234, 1237 (10th Cir. 2008). Although there is an “interests of justice”
exception, we are not persuaded it applies here.
AFFIRMED. We GRANT the motion to appear IFP and remind Mr. Stoops
that he is obligated to continue making partial payments until the entire fee has been
paid.
Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge
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