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MARK ANTHONY TROUTT v. CORRECTIONAL HEALTHCARE MANAGEMENT, INC.; OKLAHOMA COUNTY BOARD OF COUNTY COMMISSIONERS; JOHN WHETSEL
Case Number: 06-6273
Judge: Harris L Hartz
Court: UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Defendant's Attorney: United States Attorney’s Office
Denver, CO - Medical Malpractice lawyer represented Plaintiff-Appellant with alleging deliberate indifference to medical needs.
After being arrested on a drug-distribution charge, Mr. Troutt was confined
in the Oklahoma County Detention Center (OCDC) in April 2002. He was
convicted in September 2003 and was transferred to the Oklahoma Department of
Corrections (DOC) the following month to serve a 15-year sentence. The
Oklahoma Court of Criminal Appeals reversed Mr. Troutt’s conviction, however,
and remanded the case for a new trial.
On November 9, 2004, DOC returned Mr. Troutt to OCDC to await retrial.
The following day he submitted an “Inmate Health Service Request” form asking
to be “medically [t]reated for Hepatitus [sic] C.” R., Doc. 105, Ex. G-2. He
repeated his request twice more that month. On December 1 he was informed that
treatment for Hepatitis C was available only at DOC. In response he sued
OCDC’s private health-services provider, Correctional Healthcare Management,
Inc. (CHM), on December 22, alleging:
[A]fter being diagnosed with Hepatitis C I was refused medical
treatment[.] [M]y liver enzymes were elevated while in the custody
of the county Jail. Due to the stress and strain of not being
released[ ] and medically treated for a life threatening disease, I
developed shingles. [CHM] chose not to treat me for my disease and
Appellate Case: 06-6273 Document: 010137916 Date Filed: 09/24/2007 Page: 2
they would not medically release me so I could seek medical
attention for my life threatening disease. . . . [CHM] chose to
ignor[e] the value of my life because of the cost and procedure of
R., Doc. 1 at 2.
In January 2005 Mr. Troutt was again convicted and this time sentenced to
30 years’ imprisonment. On January 26 he amended his complaint to add as
defendants the Oklahoma County Sheriff, John Whetsel, and the Oklahoma
County Board of County Commissioners (the Board). In July 2005 he was
transferred back to DOC.
Throughout the course of the proceedings Mr. Troutt filed numerous
motions for appointment of counsel. All were either denied on the merits or
stricken from the record for lack of service. Mr. Troutt also sought discovery
from the defendants and, after receiving their responses, moved to compel,
asserting that his “efforts ha[d] been thwarted and objected to.” R., Doc. 98 at 2.
The magistrate judge denied the motion, and the district court upheld that denial
over Mr. Troutt’s objection.
In September 2005 the Defendants moved for summary judgment.
Documents presented to the district court showed that treating Hepatitis C is not a
matter of simply prescribing drugs. Drug therapy can be dangerous and is often
unnecessary. The preamble to the DOC protocol for treatment provides the
Appellate Case: 06-6273 Document: 010137916 Date Filed: 09/24/2007 Page: 3
[H]ow to predict the outcome of chronic Hepatitis C infection
in an individual case [is not clear]. Most studies show that at least
80% of persons with chronic Hepatitis C infection will have a mild
course without the development of cirrhosis or death from their
infection. The remaining 20% will develop cirrhosis; some mild,
some severe. A small percentage of those who develop cirrhosis will
develop liver cancer. It is this small percentage of persons with
severe cirrhosis and cancer who are most likely to benefit from
interventions to reduce their risk. Unfortunately there are no clear
predictors of who is most likely to benefit from current treatments.
Currently available medication treatments for Hepatitis C
infection are fraught with complications. Side effects can be
incapacitating, and even fatal. In particular, persons with certain
medical and mental health conditions are at high risk for fatal
complications of the medications. For these reasons, [DOC] strives
to select those people most likely to benefit from the medications and
to prevent harm to those most likely to be harmed by the
Id., Doc. 73, Ex. 1 at 1. The protocol sets forth an eight-step process of
evaluation, treatment, and follow-up. In step one the diagnosis of chronic
Hepatitis C infection is made by checking an inmate’s liver-enzyme levels “every
3 months x 3.” Id. If “2 out of 3 levels [are] elevated,” id. at 2, inmates are then
evaluated in steps two through six to determine whether they are suitable
candidates for drug-therapy treatment involving Ribavirin and Interferon antiviral
agents. To be suitable, the inmate should have at least two years of incarceration
remaining to complete further testing, treatment, and follow-up. Full treatment
alone takes 48 weeks. It is provided only at the state penitentiary and three
correctional centers; inmates who qualify for medication are transferred to one of
those institutions. Inmates who do not qualify for drug-therapy treatment are
Appellate Case: 06-6273 Document: 010137916 Date Filed: 09/24/2007 Page: 4
“refer[red] to Conservative Treatment,” id. at 3, 4 (internal quotation marks
The magistrate judge recommended that summary judgment be entered
against Mr. Troutt. The district court adopted the recommendation despite Mr.
Troutt’s objections and entered judgment for the Defendants.
I. Summary Judgment Standards
“We review the grant of summary judgment de novo, applying the same
standard as the district court.” Ward v. Utah, 398 F.3d 1239, 1245 (10th Cir.
2005). Summary judgment is appropriate “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
II. Deliberate Indifference
“[P]rison officials violate the Eighth Amendment’s ban on cruel and
unusual punishment if their deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain.” Self v.
Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (internal quotation marks omitted).
The Eighth Amendment applies to the states via the Fourteenth Amendment’s Due
Process Clause. See Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). Also,
“[u]nder the Fourteenth Amendment’s due process clause, pretrial detainees
Appellate Case: 06-6273 Document: 010137916 Date Filed: 09/24/2007 Page: 5
. . . are entitled to the same degree of protection regarding medical attention as
that afforded convicted inmates under the Eighth Amendment.” Barrie v. Grand
County, Utah, 119 F.3d 862, 867 (10th Cir. 1997) (internal quotation marks
omitted). Thus, even though Mr. Troutt was both a pretrial detainee and later a
convicted prisoner at OCDC, our analysis of his deliberate-indifference claim is
not affected by the status of his incarceration.
Deliberate indifference involves both an objective and a subjective
component. See Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th Cir. 2006).
“The objective component of the test is met if the harm suffered is sufficiently
serious to implicate the Cruel and Unusual Punishment Clause.” Id. (internal
quotation marks omitted). “The subjective component is met if a prison official
knows of and disregards an excessive risk to inmate health or safety.” Id.
(internal quotation marks omitted).
Mr. Troutt has failed to establish deliberate indifference. He has not even
shown negligence. He has provided no reason to challenge the underlying
medical assumptions in the DOC protocol, and under that protocol he received
proper care. During the initial portion of his confinement at OCDC—from
November 2004 to January 2005—Mr. Troutt was awaiting trial. Because he may
have been acquitted, there could have been no assurance that he would be
confined sufficiently long even to determine his suitability for drug therapy, much
less provide such therapy. After his conviction a lengthy confinement could be
Appellate Case: 06-6273 Document: 010137916 Date Filed: 09/24/2007 Page: 6
We reject Mr. Troutt’s suggestion that his medical records were not 1
authenticated. CHM’s chief executive officer submitted an affidavit declaring her
familiarity with CHM’s medical records and that she knew the records submitted
by CHM in seeking summary judgment were the records of Mr. Troutt’s medical
predicted; but he would need to be transferred to a facility prepared to provide
proper treatment. And while he was awaiting transfer from OCDC to a DOC
facility, his liver enzymes were tested in March and June 2005. Mr. Troutt has 1
provided no evidence that it was unconscionable to delay further evaluation until
he left OCDC. On the contrary, his own evidence, a report prepared by the
Hepatitis C Support Project, states that “hepatitis C takes a long time to damage
the liver[,] . . . many people will never get sick from hepatitis C,” and “not
everyone with hepatitis C needs to be treated with HCV medicines.” R., Doc.
105, Ex. F at 8. The preamble to the DOC protocol echoes these observations.
To the extent that Mr. Troutt claims harm from contracting shingles “[d]ue
to the stress of not being released . . . and not being medically treated for
[Hepatitis C],” R., Doc. 21 at 2, it is undisputed that he contracted shingles before
ever learning that he had Hepatitis C. Consequently, any denial of care for
Hepatitis C could not have resulted in Mr. Troutt’s shingles.
Mr. Troutt’s constitutional rights were not violated. Summary judgment
was properly entered on Mr. Troutt’s deliberate-indifference claims.
Appellate Case: 06-6273 Document: 010137916 Date Filed: 09/24/2007 Page: 7
“We review a district court’s ruling denying a motion to compel
[discovery] for an abuse of discretion.” Norton, 432 F.3d at 1156. The district
court denied Mr. Troutt’s motion because (1) he failed to “identif[y] any
particular discovery response of any Defendant that is allegedly insufficient”;
(2) he stated “only in the most general and conclusory terms that Defendants’
responses and objections have thwarted his ability to obtain relevant evidence”;
and (3) the “Defendants’ discovery responses d[id] not demonstrate on their face”
any violation of the Federal Rules of Civil Procedure. R., Doc. 114 at 2. We
discern no abuse of discretion.
IV. Appointment of Counsel
We review for an abuse of discretion the district court’s refusal to appoint
counsel for an indigent prisoner in a civil case. Steffey v. Orman, 461 F.3d 1218,
1223 (10th Cir. 2006). “Only in those extreme cases where the lack of counsel
results in fundamental unfairness will the district court’s decision be overturned.”
In considering a prisoner’s request for appointed counsel, the district “court
should consider the merits of the 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. at 1224 (internal quotation marks omitted). The district
court denied Mr. Troutt’s requests, finding that he had “demonstrated skill in
Appellate Case: 06-6273 Document: 010137916 Date Filed: 09/24/2007 Page: 8
presenting both the legal and factual aspects of his claims, and the issues raised in
this action are not complex at this juncture.” R., Doc. 47. We conclude that the
district court reasonably assessed Mr. Troutt’s ability to represent himself. The
court did not abuse its discretion in denying his motion for appointed counsel.
V. Objections to Magistrate Judge’s Rulings
Finally, Mr. Troutt contends that the district court did not properly review
his objections to the magistrate judge’s “treatment of the progress of the case.”
Aplt. Br. at 19. We disagree. The district court appropriately considered Mr.
Troutt’s various objections. See Fed. R. Civ. P. 72 (prescribing clear-error review
for nondispositive matters and de novo review for dispositive matters); 28 U.S.C.
§ 636(b)(1) (same).
Outcome: The judgment of the district court is AFFIRMED. Mr. Troutt’s motion to
proceed on appeal in forma pauperis is GRANTED; he is reminded of his
obligation to continue making partial payments until his filing fee is paid in full.