Professional Documents
Culture Documents
Stepnay v. Goff, 10th Cir. (2006)
Stepnay v. Goff, 10th Cir. (2006)
Clerk of Court
v.
No. 05-3203
(D.C. No. 04-CV-3246-GTV)
(D. Kan.)
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
*
diagnosed Mr. Stepnay with a staph infection and prescribed a ten-day course of
antibiotics and antibiotic soap. After ten days of this treatment, Mr. Stepnay still
suffered from the same symptoms and requested follow-up care. This request was
denied. He went through the same grievance process and was again told no action
would be taken. After filing a second grievance with the Kansas Secretary for
Corrections, Mr. Stepnay was seen by another physician on May 2004. This
physician diagnosed the skin condition as Staphylococcus Aureus (M.R.S.A.)
and prescribed a twenty-day course of antibiotics.
Mr. Stepnay contends that due to the C.C.S. staffs and the Wardens
deliberate indifference toward [his] medical needs, [he has] permanent scarring
on his skin and an infectious disease that will continue to recur. Additionally, he
alleges that because he has congestive heart failure this virus (M.R.S.A.) could
result in [his] untimely death. He claims that Defendants actions in denying
him medical care violated the Eighth Amendments prohibition against cruel and
unusual punishment.
After granting Mr. Stepnays motion to proceed in forma pauperis, the
district court concluded that Mr. Stepnays allegations were insufficient to state a
claim of deliberate indifference as required to state a cognizable Eighth
Amendment violation. It therefore dismissed Mr. Stepnays claim for failure to
-3-
the prison officials acted with deliberate indifference to his serious medical
needs, it is not clear that allowing Mr. Stepnay the opportunity to amend his
complaint would be futile. In order to provide guidance to the district court and
Mr. Stepnay on remand, we focus our analysis on the deficiencies in his
complaint.
A. Deprivation of Medical Care for Sufficiently Serious Medical
Condition
The deprivation of a medical need is sufficiently serious if the condition
has been diagnosed by a physician as mandating treatment or is so obvious that
even a lay person would easily recognize the necessity for a doctors attention.
Garrett, 254 F.3d at 949 (quotation, alteration omitted). Although Mr. Stepnays
skin condition was twice diagnosed by a physician as mandating treatment, he
received that treatment as soon as it was prescribed. 1 Accordingly, the only
seemingly viable deprivation claim that exists relates to the brief window of time
when Defendants allegedly denied Mr. Stepnay follow-up care after the expiration
of his ten-day course of antibiotics despite the fact that Mr. Stepnay repeatedly
told Defendants the treatment for his staph infection had not worked. See Ramos
v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (Deliberate indifference to serious
To the extent that Mr. Stepnay is challenging the nurse practioners
treatment, we note that a prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation. Perkins
v. Kan. Dept of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
1
-5-
medical needs is shown when prison officials have prevented an inmate from
receiving recommended treatment or when an inmate is denied access to medical
personnel capable of evaluating the need for treatment.).
Mr. Stepnay may not avoid dismissal, however, by merely asserting
conclusory allegations that his condition obviously required a doctors attention
because most skin conditions are not intuitively serious. Cf. Oxendine v. Kaplan,
241 F.3d 1272, 1278 (10th Cir. 2001) (holding that ineffectiveness of the prison
doctors reattachment and care of the inmates severed finger was so obvious a
lay person would recognize the need for a doctors attention where the inmates
finger tissue blackened and necrified). However, because we can at least imagine
some skin conditions that are sufficiently serious, and drug resistant infections in
a prison context might certainly be in that context, Mr. Stepnay may only avoid
dismissal by alleging specific facts indicating his condition at the conclusion of
his ten-day course of antibiotics was so obvious that Defendants should have
recognized that it required a referral for follow-up care. Thus, Mr. Stepnay could,
for instance, describe objective symptoms he manifested after the ten-day course
of antibiotics that are sufficient to trigger the need for additional treatment. 2
B. Deliberate Indifference
Of course, Mr. Stepnay could alternatively satisfy this element by
alleging that a physician timely diagnosed his condition as mandating treatment
after the ten days of antibiotics.
2
-6-
-8-
III. Conclusion
We express no opinion on the merits of Mr. Stepnays claims. However,
because pro se litigants are to be given reasonable opportunity to remedy the
defects in their pleadings, Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir.
1991), the district court erred in dismissing Mr. Stepnays complaint with
prejudice without first giving him an opportunity to amend his complaint to cure
any deficiencies. We therefore REVERSE the district courts order dismissing
the complaint with prejudice and REMAND the matter with instructions to
dismiss the complaint without prejudice to Mr. Stepnays right to reinitiate the
matter by filing a new complaint that sufficiently states a claim upon which relief
may be granted. 4 Mr. Stepnays motion to proceed on appeal pursuant to 1915
is GRANTED. We remind Mr. Stepnay that he is obligated to continue making
partial payments until the entire fee has been paid.
David M. Ebel
Mr. Stepnays motion for a default judgment against Defendants pursuant
to Fed. R. Civ. P. 55(a) is DENIED because Defendants were never served with
Mr. Stepnays complaint. Additionally, we DISMISS Mr. Stepnays motion
before this court to amend or alter his complaint as moot based on our remand of
this case to the district court.
4
- 10 -
Circuit Judge
- 11 -