653 F. App'x 580
10th Cir.2016Background
- Sherman, a Colorado prisoner, developed bilateral inguinal hernias in 2011; treating NP William Klenke prescribed NSAIDs, later Tylenol #3, and referred him to outside surgeon Dr. Rieger who recommended surgery.
- CHP (a contractor) initially denied surgery approvals; Klenke renewed/adjusted medications, supported an appeal, and surgery was finally approved and performed November 2, 2011 (revealing a lipoma).
- Sherman sued under 42 U.S.C. § 1983 (Eighth Amendment deliberate indifference) against Klenke, Health Services Administrator Dolores Montoya, supervisory Dr. Creany, CHP, Dr. Krebs (CHP), and John Doe, and also alleged state-law negligence against CHP/Dr. Krebs.
- The district court dismissed several defendants and required a Colorado certificate-of-review for the negligence claims; it allowed Sherman to proceed on Eighth Amendment claims against Klenke and Montoya, but later granted summary judgment for those two defendants.
- On appeal, the Tenth Circuit affirmed dismissal/summary judgment on all federal Eighth Amendment claims (no subjective deliberate indifference shown), but reversed the dismissal of Sherman’s state-law negligence claims against Dr. Krebs and CHP because the record did not establish that the Colorado certificate-of-review requirement necessarily applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Klenke and Montoya were deliberately indifferent to serious medical needs | Sherman: medication was inadequate and officials knowingly continued ineffective treatment causing unnecessary pain | Defendants: provided ongoing care, referrals, and reasonable treatment decisions; no conscious disregard | Court: No; summary judgment for defendants (no subjective deliberate indifference) |
| Whether supervisory/Grievance denial by Dr. Creany states §1983 liability | Sherman: Creany knew and denied grievance, failed to supervise | Creany: denial of grievance and lack of personal participation insufficient for §1983 liability | Court: Dismissed Creany (no personal involvement; supervisory liability requires underlying violation) |
| Whether CHP/Dr. Krebs can be held liable under Eighth Amendment for delayed/denied surgery | Sherman: CHP/Dr. Krebs denied surgery causing pain; CHP had cost-cutting policy | CHP/Dr. Krebs: denials reflect medical judgment/policy, not deliberate indifference; Monell-type municipal liability not pleaded | Court: Dismissed federal claims (difference of medical opinion and lack of municipal-custom facts) |
| Whether Colorado’s certificate-of-review required before pursuing state-law negligence claims against Dr. Krebs/CHP | Sherman: claims concern administrative conduct, not professional negligence; certificate requirement unconstitutional as applied to pro se prisoners | Defendants/District Court: expert testimony will be needed so certificate requirement applies | Court: Reversed district court on this point and remanded — record did not establish as a matter of law that certificate-of-review was required |
Key Cases Cited
- Estelle v. Gamble, 429 U.S. 97 (1976) (Eighth Amendment deliberate indifference to serious medical needs)
- Farmer v. Brennan, 511 U.S. 825 (1994) (subjective knowledge and disregard standard for deliberate indifference)
- Self v. Crum, 439 F.3d 1227 (10th Cir. 2006) (deliberate-indifference evidentiary standard; treatment choice vs. absence of care)
- Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000) (objective seriousness requirement)
- Mata v. Saiz, 427 F.3d 745 (10th Cir. 2005) (examples of substantial harm from delay in care)
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (municipal liability requires policy or custom)
- Birch v. Polaris Indus., Inc., 812 F.3d 1238 (10th Cir. 2015) (summary judgment standard)