Arсhie RACHEL, Plaintiff-Appellant, v. Jeffrey TROUTT, D.O., in his official and individual capacity as the facility doctor; Katryna Frech, R.N., in her official and individual capacity; Janet Dowling, Warden, in her official and individual capacity; Felicia Harris, Law Librarian, in her official and individual capacity, Defendants-Appellees.
No. 15-6104
United States Court of Appeals, Tenth Circuit.
April 26, 2016.
390-399
Wasatch also asserts its complaint pleaded facts sufficient to show joint action between Alta and the Fоrest Service. To satisfy the joint-action test, Wasatch‘s complaint must plausibly establish that Alta is a “willful participant in joint action with the [Forest Service] or its agents.” Gallagher, 49 F.3d at 1453 (quoting Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980)). For this inquiry, the focus “is not on long-term interdependence between the [Forest Service] and [Alta]” but instead on whether the Forest Service and Alta “have acted in concert in effecting a particular deprivation of constitutional rights.” Id. But as with the nexus test, “the mere acquiescence of [the Forest Service] in the actions of [Alta] is not sufficient.” Id. (emphasis added). And as discussed, Wasatch‘s complaint at best establishes the Forest Service knows of the ban and acquiesces in its continued application, and notably doesn‘t establish that the Forest Service and Alta “act[] in concert in effecting” the snowboard ban. See id. The complaint thus fails to plausibly establish joint action between the Forest Service and Alta.
Finally, Wasatch argues its complaint plausibly establishes state action under the public-function test. To satisfy that test, Wasatch‘s complaint must plausibly establish that the Forest Service delegated to Alta “a function ‘traditionally exclusively reserved to the State.‘” Gallagher, 49 F.3d at 1456 (quoting Jackson, 419 U.S. at 352, 95 S.Ct. 449). We have cautioned that this test is difficult to satisfy because a function is rarely deemed exclusively reserved to the state. Id.
Nonetheless, Wasatch argues the facts of its complaint plausibly satisfy this difficult test, because “[f]ew public functions are as traditionally and exclusively performed by the Government as management of National Forest property.” Aplt. Br. 34. Wasatch again misses the point. While managing National Forest property may be a traditional government function, operating a ski resort—including deciding whether to permit or allow certain devices—isn‘t a power “traditionally associated with sovereignty.” Jackson, 419 U.S. at 353, 95 S.Ct. 449. The complaint thus fails to establish state action under the public-function test.
Even if we grant all reasonable inferences in Wasatch‘s favor, the pleaded facts at best establish that each year the Forest Service—with knowledge of the snowboard ban—reviews and approves Alta‘s site plan and receives from Alta a usage fee. This isn‘t enough to establish state action for purposes of the Fourteenth Amendment. See Blum, 457 U.S. at 1004-05, 102 S.Ct. 2777. Because Wasatch‘s complaint doesn‘t plausibly establish state action, we affirm the district court‘s
Affirmed.
Stefanie Erin Lawson, Office of the Attorney General for the State of Oklahoma, Oklahoma City, OK, for Defendants-Appellees.
Before GORSUCH, MCKAY, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
The
In this appeal, we ask: Should the district court have found good cause for an extension of time? We conclude the court
I. The Underlying Suit
Mr. Rachel is a 71-year-old state prisoner who suffers from various medical conditions. In this suit, he alleges that (1) he routinely had to wait outdoors in adverse conditions to receive his medications, (2) he received inadequate care from the prison‘s medical staff, and (3) the prison‘s grievance procedure was unfair.
Based on these allegations, Mr. Rachel invoked
II. The district court should have granted an extension of time bеfore ruling on the defendants’ dispositive motion.
On February 2, 2015, the defendants filed both the dispositive motion and the prison officials’ Martinez report. With the filing of the Martinez report, Mr. Rachel obtained an opportunity to conduct discovery for the first time. He quickly took advantage of this opportunity, serving each defendant with separate discovery requests within six days of the opening of the discovery period.2 But Mr. Rachel faced a dilemma: He needed to respond to the defendants’ dispositive motion by February 23, 2015, even though the defendants had until March 9, 2015 or later to respond to Mr. Rachel‘s discovery requests.
Mr. Rachel tried to avoid this dilemma by seeking an extension, explaining that he needed additional time to conduct discovery and to use the prison‘s law library, where his use was limited to a few hours per week. The court did not rule on the extension requests by February 23, 2015, when Mr. Rachel‘s response to the dispositive motion was due. So Mr. Rachel filed his response and planned to supplement it when he obtained the discovery responses. But he never obtained any responsive information.3
Without any opportunity for Mr. Rachel to conduct discovery, the magistrate judge recommended that the district judge deny an extension and grant summary judgment to the defendants, reasoning in part that Mr. Rachel had failed to furnish evidence
We review the denial of an extension of time for an abuse of discretion. Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1193 (10th Cir.1998). Under this standard, we consider the rule and the facts before the district court.
In district court, the governing rule allows an extension of time “for good cause.”
To overcome the summary judgment motion, Mr. Rachel had to present evidence of an objectively serious medical need and prison officials’ deliberate indifference to this need. Mata v. Saiz, 427 F.3d 745, 752 (10th Cir.2005). “Each step of this inquiry is fact-intensive.” Hartsfield v. Colburn, 491 F.3d 394, 397 (8th Cir.2007); see also Leamer v. Fauver, 288 F.3d 532, 547 (3d Cir.2002) (stating that a claim involving deliberate indifference to an inmate‘s treatment needs was “fact-intensive” and “require[d] further development of the record“). Because the issuе is fact-intensive, “discovery may be important.” Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 533 (7th Cir.1988).
But Mr. Rachel had no opportunity to conduct discovery and obtain evidence before responding to the defendants’ dispositive motion. Until the defendants filed that motion, discovery had been stayed. R., Vol. 1 at 53. Thus, Mr. Rachel had only 21 days to request discovery and obtain answers before responding to the dispositive motion. Id. at 54. This timing presented a dilemma for Mr. Rachel because the federal rules permit 30 days to respond to discovery requests.
The dilemma was compounded by Mr. Rachel‘s limited access to the prison law library. The defendants’ dispositive motion included citations to over 40 cases, along with various rules and statutes. In the 21 days Mr. Rachel had to respond, he not only had to draft and serve discovery requests, but also to respond to the defendants’ legal analysis—while able to use a law library for only a few hours per week. Meanwhile, Mr. Rachel was 71 years old, physically handicapped, experiencing health problems, and taking a variety of medications.
An extension of time for Mr. Rachel would not have resulted in any prejudice to the defendants. They insisted that Mr. Rachel did not need discovery in light of the medical records furnished with the
Seeking to avoid this one-sided set of information before the district court, Mr. Rachel filed a request for additional time 14 days before his response deadline was to expire. Because the motion was timely, he needed only to show good cause for the extension request.
In these circumstances, we conclude that the denial of an extension constituted an abuse of discretion. Cf. Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1265 (10th Cir.1984) (“Because of the uncertainty created by the court‘s failure to exercise its discretion, the likelihood of prejudice to the plaintiff and the current status of this case, we reversе the court‘s grant of summary judgment and remand for the trial court to expressly consider plaintiff‘s
The district judge interpreted Mr. Rachel‘s request for more time to involve a complaint about the defendants’ refusal to answer discovery requests. Based on this interpretation, the judge concluded that Mr. Rachel should have filed a motion to compel months earlier. We respectfully disagree with the district judge‘s interpretation of Mr. Rachel‘s motion for an extension of time.6 In his motion, Mr. Rachel was simply explaining why he needed more than 21 days to respond to the dispositive motion. At that time, he was not complaining about the defendants’ refusal to provide discovery within the 21-day period. Indeed, he could not have done so because the defendants had 30 days to respond to the discovery requests.
By the time Mr. Rachel filed a reply in support of his motion for an extension, however, the defendants’ time to provide discovery responses had expired. Thus, in
It would have been better, of course, for Mr. Rachel to file a separate motion to compel rather than ask for additional relief in his reply brief. Ultimately, however, Mr. Rachel filed his initial motion to obtain an extension of time both because of the limitations on his use of the prison‘s law library and the earlier prohibition on discovery. In our view, the district court should have granted that request. Cf. CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir.2008) (“Typically, when the parties have no opportunity for discovery, denying the Rule 56(f) motion and ruling on a summary judgment motion is likely to be an abuse of discretion.“).
In light of this conclusion, we must reverse and remand for further proceedings on the defendants’ dispositive motion.
III. Mr. Rachel‘s Other Appeal Points
Mr. Rachel has also raised other appeal points. We address these points below because of the likelihood that they will recur on remand.
A. The district court did not err in failing to take corrective action with regard to deficiencies in the Martinez report.
Mr. Rachel complains about deficiencies in the Martinez report. For example, he says that the report contained lies and omitted pertinent documents. These complaints led Mr. Rachel to object to the report in district court. The district court declined to rule on the objection and ultimately relied on the report when granting summary judgment to the defendants. According to Mr. Rachel, the district court should have required the prison officials to furnish documents incorrectly omitted from the Martinez report.
We disagree. Courts order the Martinez report not to provide discovery, but to aid in screening the complaint. See Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987) (“The purpose of the Martinez report is to ascertain whether there is a factual as well as a legal basis for the prisoner‘s claims.“).
Mr. Rachel complains that the prison officials failed to submit all of the relevant documents. This omission was allegedly material and might have affected the district court‘s screening. But on screening the complaint, the district court allowed Mr. Rachel to proceed with all of his claims. And on remand, Mr. Rachel can seek the missing documents through discovery. We have no need, at this stage, to address Mr. Rachel‘s complaints about the district court‘s failure to order supplementation of the Martinez report.
B. The district court did not err in declining to appoint counsel.
Mr. Rachel moved for appointment of counsel and the district court denied the motion. This ruling did not constitute error.
Courts are not authorized to appoint counsel in
We review the district court‘s denial of Mr. Rachel‘s request for an attorney only fоr an abuse of discretion. Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.2012). In considering whether the court acted within its discretion, we consider the merits of the claims, the nature of the claims, Mr. Rachel‘s ability to present the claims, and the complexity of the issues. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). The court considered these factors and declined to request counsel for Mr. Rachel.
This decision was reasonable. Each year, the district court receives hundreds of requests for legal representation and only a small number of attorneys are avаilable to accept these requests. Accordingly, the district court must use discretion in deciding which cases warrant a request for counsel. To do otherwise would deprive clearly deserving litigants of an opportunity to obtain legal representation. The dilemma is unfortunate for litigants like Mr. Rachel. But the dilemma was not the district court‘s fault; that dilemma was the product of the court‘s lack of authority to compel legal representation or to reimburse attorneys for thеir time.
As a result, we conclude that the district court did not abuse its discretion by denying Mr. Rachel‘s motion for appointment of counsel.
C. The district court did not err in denying Mr. Rachel‘s motion for appointment of a medical expert.
After the defendants filed their dispositive motion, Mr. Rachel moved for appointment of a medical expert under
Our review is confined to the abuse-of-discretion standard. See United States v. Sloan, 65 F.3d 861, 864 (10th Cir.1995) (“A decision to deny, or grant, an application for expert services is a matter committed to the sound discretion of the district court and will not be disturbed on appeal absent a showing of prejudice.“); Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.2002) (stating that the abuse-of-discretion standard applies to denial of a motion for appointment of an expert). In our view, the district court did not abuse its discretion in declining to appoint a medical expert.
Though
When appointing medical experts, the court is to allocate payment between the parties.
The district court did not abuse its discretion because the nature of Mr. Rachel‘s underlying claim is not sufficiently complicated to require an independent medical expert. See Ledford v. Sullivan, 105 F.3d 354, 359 (7th Cir.1997) (upholding the denial of a medical expert for an inmate-plaintiff‘s claim of deliberate indifference to serious medical needs because the determination of deliberate indifference was not sufficiently complicated to require a medical expert).
Mr. Rachel also argues that he needed expert testimony to rebut the defendants’ arguments about the alleged adequacy of his medical treatment. “[B]ut it cannot follow that a court must therefore appoint an expert under Rule 706 whenever there are allegations of medical malрractice.” Gaviria v. Reynolds, 476 F.3d 940, 945 (D.C.Cir.2007).
As a result, we conclude that the district court did not abuse its discretion in denying Mr. Rachel‘s motion for appointment of a medical expert.
D. The district court did not err in granting summary judgment to the defendants on the due process claim involving the grievance procedure.
Mr. Rachel also appeals the grant of summary judgment on his claim involving the failure to provide a fair grievance procedure. In district court, Mr. Rachel clarified that he was bringing this claim under state lаw rather than under the federal constitution. The district judge interpreted the claim accordingly, holding that state law did not mandate any particular type of grievance procedure.
On appeal, Mr. Rachel does not address this rationale. Instead, he argues that state law creates a liberty interest. The existence of a liberty interest would be significant only if Mr. Rachel were claiming a deprivation of due process under the state or federal constitution. But Mr. Rachel did not allege a due process violation in federal district court. It is too late for him to do so on appeal for the first time. See Gorman v. Carpenters’ & Millwrights’ Health Benefit Tr. Fund, 410 F.3d 1194, 1202 (10th Cir.2005) (“[S]ound policy supports the proposition that an appellate court will not consider an issue raised for the first time on appeal.“).
E. On remand, the district court should revisit its ruling on the petition for an emergency injunction.
Mr. Rachel filed a petition for an emergency injunction, asking for an order requiring prison officials to (1) send him to аn outside medical specialist for gastrointestinal problems and (2) follow that specialist‘s recommendations for medications and treatment. R., Vol. 1 at 56-59. The
F. On remand, the district court should also revisit its ruling on the claims against the prison nurse.
One of the defendants is a prison nurse and administrator, who allegedly contributed to the deficiencies in Mr. Rachel‘s medical care and to the prison‘s extended pill lines. The nurse was not served until April 1, 2015, and she did not enter an appearance. See R., Supp. Vol. 1 at 26. But claims against her were dismissed on screening based on the award of summary judgment to the other defendants. Because we have reversed the summary judgment ruling, the claims against the prison nurse should be revisited on remand.
IV. The Court grants the motion for leave to proceed in forma pauperis.
With the appeal, Mr. Rachel seeks leave to proceed in forma pauperis. He is unable to pay the filing fee, and this appeal is not frivolous. Accordingly, we grant Mr. Rachel‘s request. But we remind Mr. Rachel that this status eliminates only the need for prepayment of the filing fee. Mr. Rachel remains obligated to pay the filing fee in monthly installments. See
BACHARACH
UNITED STATES CIRCUIT JUDGE