* This order and judgment is not binding precedent, except under the doctrines of law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.

UNITED STATES COURT OF APPEALS

Filed 4/11/96

FOR THE TENTH CIRCUIT

ROLAND RALPH WILEY, )

)

Plaintiff-Appellant, )

)

v. ) No. 95-3122

) (D.C. No. 91-CV-3073)

DR. (NFN) (NMI) HOANG; PHYLLIS WARDER, ) (D. Kan.)

KSP Hospital Administrator; CMS, Contracted )

KSP Health Care Provider; DR. (NFN) (NMI) )

WALTZ; DR. (NFN) (NMI) HARVEY; DR. (NFN) )

(NMI) THOMPSON, )

)

Defendants-Appellees. )

 

ORDER AND JUDGMENT*

 

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

 

After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

Plaintiff Roland R. Wiley, appearing pro se, appeals from the district court’s order

granting defendants’ motions for summary judgment. Plaintiff brought this action for
1

 Plaintiff also objects to the exclusion of his complaint from the designated record on

appeal. The omission was inadvertent. We requested and received from the district court

a copy of plaintiff’s complaint, consisting of the completed form with the original complaint

appended thereto. It is before us now, just as it was before the district court, and is part of

the record on appeal.

2

damages pursuant to 42 U.S.C. § 1983, alleging that defendants violated his constitutional

rights by denying him adequate medical care during his incarceration at the Lansing

Correctional Facility (LCF) in Lansing, Kansas. We affirm.

In ruling on defendants’ motions for summary judgment, the district court relied on

a March 4, 1991 filing date for plaintiff’s complaint to conclude that the applicable two-year

statute of limitations barred all of plaintiff’s claims. Notwithstanding that conclusion, the

district court proceeded to consider the medical treatment plaintiff received for his January

1989 case of spinal meningitis and held that it was not “so substandard as to implicate the

Eighth Amendment.” R. II, doc. 57 at 5. Because the parties are well aware of the facts of

the case, we will not repeat them here.

On appeal, plaintiff objects to the district court’s use of the March 4, 1991 filing date

for his complaint. Plaintiff claims that he filed his original complaint on January 11, 1991,

and that it subsequently was returned to him by the clerk of the court with instructions to use

instead a prescribed form to initiate his action. Plaintiff further claims that he did as he was

instructed and that his form complaint (with his original complaint appended thereto) was

mailed to the court on February 6, 1991. The complaint1

 is stamped to indicate that it was

received by the pro se clerk of the district court on February 8, 1991, and ultimately was filed

in the district court on March 4, 1991. It is unnecessary for us to consider whether any issue

is presented by this sequence of events and, if so, whether it is properly before us. The
3

district court, although using the March 4 date for its statute of limitations ruling, nonetheless

ruled on the merits of plaintiff’s claims arising out of his January 1989 illness. Plaintiff’s

pre-1989 claims are barred by the applicable two-year statute of limitations whether we use

the January 11 filing date or the March 4 filing date. See Hamilton v. City of Overland Park,

730 F.2d 613, 614 (10th Cir. 1984)(holding that the two-year statute of limitations in Kan.

Stat. Ann § 60-513(a)(4) should be applied to Section 1983 claims), cert. denied, 471 U.S.

1052 (1985) .

Plaintiff argues that he should not be held to the two-year statute of limitations by

virtue of Kan. Stat. Ann. § 60-515(a) (1994), which allows persons under a legal disability,

including imprisonment, to bring their actions one year after the disability is removed. We

disagree. The statute expressly excepts those who are imprisoned yet have access to the court

for purposes of bringing an action. Id. Here, there is no question that plaintiff had access.

In December of 1983, while imprisoned, he brought an action in the district court,

complaining of inadequate medical attention to his 1981 head/facial injury. See Pl.’s compl.

at p. 4; Wiley v. Harvey, No. 83-3368 (D. Kan. Jan. 31, 1984), appeal dismissed for lack of

prosecution, No. 84-1498 (10th Cir. Nov. 2, 1984).

Plaintiff also tries to avoid his statute of limitations problems by turning to

Kan. Stat. Ann. § 60-513(b) (1994), which provides for the accrual of a cause of action when

“the act giving rise to the cause of action first causes substantial injury, or, if the fact of

injury is not reasonably ascertainable until some time after the initial act, then . . . [when] the

fact of injury becomes reasonably ascertainable to the injured party. . . .” Plaintiff is

apparently taking the position that the applicable limitations period did not commence until

he purportedly learned in January of 1989 that the spinal meningitis was in some way caused
4

by the allegedly inadequate treatment of his 1981 injury. Without considering possible legal

theories which might or might not sustain such an argument, and ignoring any res judicata

issues raised by plaintiff’s earlier suit, plaintiff’s contention fails because it lacks any factual

basis in the record. The record reflects three references by Dr. Grote concerning plaintiff’s

1981 injury; the first in his discharge summary, R. I, doc. 49, Salke Aff., ex. A at 52, the

second in the notes of Dr. Grote’s orders in plaintiff’s chart, id. at 5, and the third in

defendant Warder’s notes of her telephone conversation with Dr. Grote, id. at 28-29. These

references indicate Dr. Grote’s concern about the earlier injury, but they do not support an

inference that plaintiff received inadequate treatment for the injury or that the treatment

received was the cause of plaintiff’s subsequent illness. Plaintiff’s references in his brief to

what Dr. Grote said are not supported by sworn testimony and are insufficient to raise a

question of fact.

Turning to plaintiff’s Eighth Amendment claim with respect to his January 1989 case

of spinal meningitis, we agree with the district court that summary judgment was appropriate.

Plaintiff has wholly failed to respond to defendants’ summary judgment motions with

specific factual support for his claims. See Fed. R. Civ. P. 56 (e) (“adverse party may not

rest upon the mere allegations or denials of . . . [his] pleading, but . . . [must], by affidavits

or otherwise as provided in this rule, . . . set forth specific facts showing that there is a

genuine issue for trial”); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994)(even

pro se litigants must comply with Fed. R. Civ. P.), cert. denied, 115 S. Ct. 750 (1995); Handy

v. Price, 996 F.2d 1064, 1068 (10th Cir. 1993)(“Conclusory allegations . . . do not fulfill a

nonmoving party’s obligation when faced with affidavits and a motion for summary

judgment.”). The record on which plaintiff relies shows, as the district court correctly noted,
5

that “plaintiff received medical care in response to his complaints which included medication

for pain, diagnostic testing, referral to a local hospital, and follow-up care in the prison

infirmary.” R. II, doc. 57 at 5. Plaintiff presents no evidence that defendants’ actions in this

regard were even unreasonable, much less in reckless disregard of a known risk. See Farmer

v. Brennan, 114 S. Ct. 1970, 1978-79 (1994) (defining “deliberate indifference”). Instead,

plaintiff relies primarily on the fact that Dr. Grote’s treatment plan was not followed once

plaintiff was returned to prison and under another doctor’s care.

Although we have recognized that intentional interference with prescribed medical

treatment may constitute deliberate indifference, see Martin v. Board of County Comm’rs,

909 F.2d 402, 406 (10th Cir. 1990), the mere fact that recommended treatment was not

followed is not sufficient evidentiary support to survive a motion for summary judgment.

See Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992)(evidence that inmate was

housed in upper level cell when recommended treatment included a permanent restriction on

use of stairs did not support an inference of deliberate indifference). The record shows that

although the intramuscular Demerol ordered by Dr. Grote was discontinued, see R. I, doc.

49, Salke Aff., ex. A at 18-32, plaintiff did receive medication for pain throughout his stay

in the infirmary, id. at 17-33. Plaintiff has failed to present any evidence that the medical

decision to use an alternative pain medication was unreasonable or reckless. Plaintiff’s belief

that he should have received the Demerol is insufficient to establish a constitutional

violation. See Ledoux, 961 F.2d at 1537. Similarly, plaintiff has failed to present any

evidence challenging the medical decisions to discontinue his IV and to forego a repeat

spinal tap, or any evidence that the course of treatment followed by defendants in this regard
6

was intended to cause him harm, recklessly disregarded some risk of harm, or indeed caused

him harm.

The judgment of the United States District Court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge