* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 31 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ROBERT DEHERRERA,

Plaintiff-Appellant,

v. ROY KROPINAK, Dr., Medical Doctor, Santa Fe County Detention Center, in his individual and official capacity, Defendant-Appellee. No. 00-2112 (D.C. No. CIV-99-215-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Robert DeHerrera, a prisoner in the United States P enitentiary in Atlanta, Georgia, appeals the district court’s grant of summ ary judgment to defendant Dr. Roy Kropinak on plaintiff’s § 1983 claim for vi olation of his Eighth Amendment constitutional right to adequate medical treatment. After our de novo review of the parties’ briefs, the analysis of the district court, and the record on appeal, we affirm. As an initial matter, we considered whether we had jurisdiction over this appeal in view of the fact that Mr. DeHerrera did n ot file objections to the report and recommendation of the magistrate judge. This c ircuit has adopted a firm waiver rule under which a party who fails to make t imely objection to the magistrate’s findings and recommendations waives ap pellate review of both factual and legal questions. Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). This rule does not apply, however, when the interests of justice dictate otherwise. Id. The district court dismissed this action on March 1 0, 2000. Mr. DeHerrera contends that he did not receive a copy of the magi strate judge’s report and recommendation until April 4. In support of this a ssertion, Mr. DeHerrera attached to his brief copies of (1) an envelope fro m the district court which is postmarked February 15 and bears a note indicating it was delivered to the-3-

plaintiff on April 4 and (2) a declaration of a corrections official that, on April 4, he delivered mail from the district court to the pl aintiff. Ordinarily, this court will not consider documents not before the district court, Aero-Medical, Inc. v. United States , 23 F.3d 328, 329 n.2 (10th Cir. 1994), and defendant has moved to strike the copies of the envelope and the declaration on that basis. Here, however, even without the add itional documentary evidence, we have the statement of the district judge acknowl edging that “[j]udging from the Court’s docket in this case, Plaintiff most lik ely did not receive a copy of the Magistrate Judge’s Findings.” R. Vol. I, doc. 47 at 2 (Order Denying Plaintiff’s Motion for Reconsideration). Under these circumstances, we find that the interests of justice would not be served by strict adherence to the waiver rule. See Moore , 950 F.2d at 659. We therefore turn to the merits of this appeal. Our review of the grant of summary judgment is de n ovo, and we apply the same standards as those applied by the district court. Craig v. Eberly , 164 F.3d 490, 493 (10th Cir. 1998). Thus, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitledto a judgment as a matter of law.” Fed. R. Civ. P. 56(c).-4-

Mr. DeHerrera was injured in an altercation with pr ison personnel. He originally named several other defendants in thi s suit, but Dr. Kropinak is the only remaining defendant. We will therefore examin e the facts to determine what Dr. Kropinak knew regarding plaintiff’s situation, when he knew it, and what he did about it. The first report of plaintiff’s complaint regardingleg pain occurred on either March 13 or March 14, 1997. The first refer ence to Dr. Kropinak is on March 15 when he was called “for orders” and approv ed Mr. DeHerrera’s transportation to Santa Fe Imaging for X-rays. App ellee’s Supp. App. at 19. By the time Mr. DeHerrera arrived at Santa Fe Imagi ng, however, the facility was closed. Id. at 20. There is no evidence that defendant was im mediately informed of this fact, although by the time he examined plai ntiff on March 17 he understood that Mr. DeHerrera had yet to be X-rayed. See id. at 27 (March 17 notation on chart from Dr. Kropinak that “ evidently x-ray closed by the time pt. got there”) (emphasis added). After the initial phone call to Dr. Kropinak, plaintiff was given Motrin and issued a wheelchair. On March 17, Mr. DeHerrera ha d X-rays which revealed two fractures in his lower left leg. Upon receipt of that information, Dr. Kropinak prohibited plaintiff from walking, required a wheel chair or crutches until plaintiff could be evaluated by an orthopedist, increased the dosage of Motrin, and ordered-5-

that an appointment with an orthopedist be set up for plaintiff. Id. at 27. Two days later, Mr. DeHerrera was seen by an orthopedis t who put him in a long leg bent knee cast. In October, Mr. DeHerrera underwent surgery for nonunion of the left distal tibia. The essence of Mr. DeHerrera’s claim is that he sho uld have been X-rayed sooner and that his leg should have been immediatel y stabilized. The Eighth Amendment prohibits the “unnecessary and wanton inf liction of pain” which can manifest itself in the deliberate indifference to the serious medical needs of inmates. Estelle v. Gamble , 429 U.S. 97, 104 (1976). There are two component s to a showing of deliberate indifference: The objective component is met if the deprivation i s sufficiently serious. A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily reco gnize the necessity for a doctor’s attention. The subjective component is met if a prison official knows of and disregards an exc essive risk to inmate health or safety. Sealock v. Colo. , 218 F.3d 1205, 1209 (10th Cir. 2000) (quotations omitted). Negligence or even medical malpractice is not enoug h to constitute deliberate indifference. Gamble , 429 U.S. at 106 (“Medical malpractice does not be come a constitutional violation merely because the victim is a prisoner.”). Finally, a plaintiff must show that any delay incurred resulted in substantial harm. Sealock , 218 F.3d at 1210.1 The record states that on March 14 medical personne l attempted to wrap

plaintiff’s leg but could not do so because plainti ff would not cooperate. Appellee’s Supp. App. at 16. The record further states that on March 16, plaintiff’s leg was wrapped with an Ace bandage. Id. at 21. Plaintiff asserts that his leg was never wrapped. For purposes of this re view of the grant of summary judgment, we will assume that plaintiff’s leg was n ot wrapped. -6- For purposes of analysis, we will assume, as did th e magistrate judge, that Mr. DeHerrera’s condition was serious. We cannot c onclude, however, that Dr. Kropinak knew of and disregarded an excessive r isk to plaintiff’s health or safety. On the day Dr. Kropinak was first contacted by pris on medical personnel, Mr. DeHerrera’s leg showed signs of slight swelling , bruising and warmth. Dr. Kropinak immediately ordered X-rays and presumably prescribed the Motrin and use of a wheelchair later referenced in the rec ord. Immediately upon learning that Mr. DeHerrera had not been X-rayed, Dr. Kropin ak made arrangements for the procedure to be done as soon as possible. Whenthe X-rays revealed the fractures, Dr. Kropinak ordered an expedited visit to an orthopedist for further treatment. There is no evidence that Dr. Kropinak knew of Mr. DeHerrera’s broken leg and then disregarded any risk to his hea lth. Further, Mr. DeHerrera cannot show that substantial harm befell him from any delay in getting an X-ray or in failing to immobilize the leg. 1 The orthopedist who eventually casted plaintiff’s leg noted that “[ t]he left lower leg appears to be-7-

clinically fairly well aligned.” Id. at 33. When the orthopedist compared his X-rays with those taken two days earlier, he noted no change in the position of Mr. DeHerrera’s leg. Id. The orthopedist’s attempt at a closed reduction r evealed “not much change in the overall alignment.” Id. There is nothing in the record, and plaintiff does not even suggest, that the ultim ate need for surgery was the result of plaintiff’s treatment by Dr. Kropinak. On appeal, Mr. DeHerrera asks us to consider what c ould be construed as written answers to interrogatories from the orthope dist who treated him. This document was not before the district court, and def endant urges that it be stricken. We conclude, however, that it is possible this info rmation was not presented to the district court because Mr. DeHerrera did not re ceive notice of the magistrate judge’s report and recommendation in a timely fashion. See 28 U.S.C. §636(b)(1) (judge may receive further evidence after magistrat e’s proposed findings and recommendations). We therefore have considered thi s evidence but find it insufficient to establish deliberate indifference o n the part of the defendant. At most, the document from the orthopedist reveals a difference of medical opinion regarding the proper course of treatment fo r someone in Mr. DeHerrera’s condition. While this evidence may support a claimfor medical malpractice, it is insufficient to establish deliberate indifference. See Gamble , 429 U.S. at 293 (“A-8-

medical decision not to order an X-ray, or like mea sures, does not represent cruel and unusual punishment. At most it is medical malp ractice.”). Defendant-appellee’s motion to strike portions of p laintiff-appellant’s appendix is denied. The judgment of the United States District Court for the District of New Mexico is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge