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Marshall v. Wyoming Department of Corrections

United States Court of Appeals, Tenth Circuit

November 25, 2014

ROBERT OWEN MARSHALL, III, Plaintiff - Appellant,
v.
WYOMING DEPARTMENT OF CORRECTIONS; PRISON HEALTH SERVICES, INC./CORIZON HEALTH; ROBERT O. LAMPERT; STEVE LINDLEY; BRIAN FARMER; DAN SHANNON; JOHN ORDIWAY; SAM BORBELY; DEBBIE LEONARD; EDDIE WILSON; TODD MARTIN; MICHAEL J. MURPHY; RUBY ZIEGLER; JANELL THAYER; KYA GALLO; MELODY NORRIS; SHAWNA RETTINGHOUSE; KATHY LONG; CARRIE CARUTHERS; BURT PRINDLE; JASON WADSWORTH; JAMES VALLIERE; JASON MAY; JAY OWREN; DENNIS JONES; KRISTY BROOKS; PAM NICHOLS; VICKI SMITH; DAN PILLON; STEVE HARGETT; MICHAEL DAVID; RICHARD LORENZ; JOHN MARTIN; ROBERT CUSTARD; ROB BRANHAM; SHAWN SITZMAN; CURTIS MOFFAT; AMBER DAVISON; BARBARA TUTTLE; HEATHER BERGLUND; MARLENA MILLER; NEICOLE MOLDEN; KONNE RIFE; JOHN COYLE, M.D.; ANNE CYBULSKI-SANDLIAN; SAMUEL KURT JOHNSON, M.D.; JEFF SHAHAN; SHIRLEY HALEY; LESLIE BRIGGS, RN; ROBERT BYRD, DDS; JACQUIE PROBST, RN; DANIEL M.FETSCO; MELVIN HAMILTON; WYOMING BOARD OF PAROLE; JAMES F. WIESBECK; PATRICK ANDERSON; RICHARD HALLWORTH; ANTONIO ESCAMILLA; CONSOLIDATED DEFENDANTS PRISON HEALTH SERVICES/CORIZON HEALTH EMPLOYEES, in their individual and official capacities; CONSOLIDATED DEFENDANTS WYOMING DEPARTMENT OF CORRECTIONS EMPLOYEES, in their individual and official capacities, Defendants-Appellees.

D.C. No. 1:12-CV-00175-SWS D. Wyo.

Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.

ORDER AND JUDGMENT [*]

STEPHEN H. ANDERSON CIRCUIT JUDGE

Robert Owen Marshall, III, proceeding pro se, appeals from the district court's judgment for defendants in his prisoner civil rights suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the disposition of most of the claims, but we vacate the judgment in favor of certain defendants on the First Amendment portions of claims 1 and 2 and remand for further proceedings.

Background & Discussion

Between 2008 and 2012, Mr. Marshall was imprisoned in various Wyoming correctional institutions where Corizon Health, Inc. was contracted to provide medical services. He brought claims against numerous defendants under 42 U.S.C. §§ 1983 and 1985; the Religious Land Use and Institutionalized Persons Act (RLUIPA); the Americans with Disabilities Act (ADA); and the Rehabilitation Act of 1973 (RA). Because he had been released from prison before filing his complaint, he sought only money damages.

In thorough and detailed orders, the district court granted judgment on the pleadings under Fed.R.Civ.P. 12(c) to the prison system and its officials (the State Defendants) and summary judgment to Corizon and its employees (the Medical Defendants). We review both decisions de novo. Barber ex rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1227 (10th Cir. 2009) (summary judgment); Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262, 1265 (10th Cir. 2003) (judgment on the pleadings). We have considered only those claims addressed in the opening brief, [1] as any issue not raised or not briefed adequately in an appellant's opening brief is waived. See Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012).

1. Generally Applicable Arguments

Mr. Marshall initially makes two general arguments. He first asserts that in light of his multiple impairments and the complex issues, the district court erred in denying his requests for appointment of counsel. We review the denial of appointed counsel for abuse of discretion, reversing "[o]nly in those extreme cases where the lack of counsel results in fundamental unfairness." Id. at 916 (internal quotation marks omitted). The relevant factors "include the merits of a prisoner's claims, the nature and complexity of the factual and legal issues, and the prisoner's ability to investigate the facts and present his claims." Id. (internal quotation marks omitted). Having reviewed the record in light of those factors and Mr. Marshall's presentation on appeal, we cannot conclude that denying appointed counsel resulted in fundamental unfairness.

Next, he argues that the district court erred in granting judgment without allowing discovery. It is not clear, however, that he ever properly notified the district court that he could not adequately respond to defendants' dispositive motions without discovery. We do not see where his response to the State Defendants' motion for judgment on the pleadings asked for discovery. In responding to the Medical Defendants' motion for summary judgment, he did suggest at the end of his brief that "as Defendants have asked that Discovery be stayed in this action, Plaintiff will need to wait for such discovery before he can properly address the other claims." R. Vol. 1 at 899. But this is no ground for reversal, as this conclusory statement fails to comply with the requirements of Fed.R.Civ.P. 56(d) (formerly Rule 56(f)), which requires a plaintiff to file a specific affidavit if he believes he needs discovery to respond to a summary judgment motion. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010).

2. Section 1983 Claims

Claims 1 through 17 present § 1983 claims alleging various constitutional violations, some against the State Defendants, some against the Medical Defendants, and some against both sets of defendants.

a. State Defendants

We review a Rule 12(c) dismissal "under the standard of review applicable to a Rule 12(b)(6) motion to dismiss." Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005) (internal quotation marks omitted). Accordingly, "[a]ll well-pleaded facts, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to the nonmoving party." Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). "In reviewing a motion to dismiss, this court must look for plausibility in the complaint." Id. (internal quotation marks omitted). "Under this standard, a complaint must include 'enough facts ...


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