UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

MILTON BRADLEY GAREWAL, 

 Plaintiff - Appellant, 

v. 

U.S. MARSHAL JOROME SLIZ; U.S. 

MARSHAL GILLIAN FLECK; DR. 

CRUM; NURSE JOHNSON; THE 

NATIONAL COMMISSION ON 

CORRECTIONAL HEALTH CARE, 

 Defendants - Appellees. 

No. 14-1413 

(D.C. No. 1:12-CV-02348-RM-BNB) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, McKAY and PHILLIPS, Circuit Judges. 

 

 Milton Garewal, a federal prisoner appearing pro se, appeals from the district 

court’s dismissal of his claims that defendants violated his constitutional right to be 

free from cruel and unusual punishment. Exercising jurisdiction under 28 U.S.C. 

§ 1291, and mindful of our obligation to construe pro se filings liberally, we affirm. 

 

* 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)(2); 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. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 26, 2015

Elisabeth A. Shumaker 

Clerk of Court

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BACKGROUND

 In his Third Amended Complaint, Garewal alleged that United States Marshals 

Jorome Sliz and Gillian Fleck were to transport him from the Denver City Jail to a 

federal building for a court hearing. Garewal asked Fleck if she recalled transporting 

him a month earlier without shackles because he had shown a medical card stating he 

has drop foot and was wearing a brace on his drop foot. Fleck said she did, but added 

that Sliz was in charge of deciding whether he would be shackled this time. Garewal 

told Sliz he had a drop foot, explained what that was, presented Sliz with a medical 

card indicating he “may have brace for foot drop,” R. at 33, and told Sliz it “wasn’t a 

good idea” to shackle him, id. at 31. Sliz said Garewal could go slow and take his 

time because they were early for the hearing anyway. Garewal told the Marshals 

“going slow” was irrelevant because if he could not “throw his foot far enough to 

land flat,” his foot would “drag and cause [him] to trip.” Id. He reiterated that it was 

“not a good idea” to shackle him during transport. Id. Sliz then applied the shackles. 

After fifteen or twenty steps, Garewal began to fall. Sliz caught him, but not before 

the shackles twisted Garewal’s right foot. Garewal said his foot hurt badly and might 

be broken, so Sliz removed the shackles. Fleck asked Garewal if he could walk. 

Garewal responded he could if he had to, but did not think he should. Sliz told 

Garewal “ahh, your [sic] tough” and that he could go as slow as he wanted. Id. at 32. 

Garewal then walked to the hearing and again during his return to the jail. 

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 At the jail, Garewal asked Fleck if they were going to tell jail staff about his 

injury. Fleck told Garewal he would have to put in a medical “kite” (i.e., a request 

for medical assistance) and tell the staff himself. A deputy at the jail told him there 

were no kites and that Garewal had to ask the nurse for one. Three days later, 

Garewal submitted a kite stating his left foot was bruised and purple around his toes 

and his right foot might be fractured or broken. An unidentified nurse reviewed the 

kite late that same day, and Nurse Johnson examined Garewal the next morning. She 

noted his foot was swollen and warm to the touch, prescribed Tylenol and Motrin, 

and scheduled him for the medical line three days later. She noted Garewal denied 

the need for an “ace wrap” because he had “borrowed high top shoes from another 

[inmate].” Id. at 39. After Nurse Johnson’s exam, Garewal walked back to his pod. 

Three days later, Dr. Stob examined him, ordered an x-ray for his right foot, and sent 

Garewal back to his pod.1

 Dr. Stob’s progress note indicates he discontinued Motrin 

but prescribed diclofenac (an anti-inflammatory), Tylenol, and a diuretic. He also 

ordered blood-pressure checks for Garewal’s hypertension and planned to follow up 

with Garewal in one week. Three days later, Garewal had an x-ray, and it showed he 

had fractures in two metatarsals in his right foot. Dr. Crum prescribed a walking 

boot and a cane. 

 

1

 Garewal alleged that one of the named defendants, Dr. Crum, performed this 

examination, but in his opening appellate brief, he acknowledges it was Dr. Stob. 

Further, in his March 5 Reply Brief, Garewal states that he did not name Dr. Stob 

because he “acted medically reasonably instead of deliberately indifferent.” 

March 5 Reply Br. at 4. 

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 In this action, Garewal raised claims under Bivens2

 and 42 U.S.C. § 1983, 

asserting that defendants Sliz, Fleck, Johnson, and Crum violated his Eighth 

Amendment right to be free from cruel and unusual punishment.3

 Defendants filed 

motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). A magistrate 

judge recommended the motions be granted on the ground that Garewal had not 

stated a plausible claim that defendants had been deliberately indifferent to a 

substantial risk of serious injury. Garewal filed objections to those 

recommendations, but the district court overruled the objections, adopted the 

recommendations, and dismissed the claims without prejudice. This appeal followed. 

DISCUSSION 

 We review de novo the district court’s dismissal for failure to state a claim 

under Rule 12(b)(6). Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 

(10th Cir. 2011). “[T]o withstand a motion to dismiss, a complaint must have enough 

allegations of fact, taken as true, to state a claim to relief that is plausible on its 

face.” Id. (internal quotation marks omitted). A claim is facially plausible if its 

factual content allows a reasonable inference of liability. Id. at 1215. 

 

2

 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 

388 (1971). 

3

 Garewal also alleged that the National Commission on Correctional Health 

Care had “accredited . . . the Denver City Detention Center,” R. at 40, but he 

specified no claims against the NCCHC. The district court adopted the magistrate 

judge’s recommendation to dismiss any claims against the NCCHC as legally 

frivolous. Garewal did not object to that recommendation, and he has not taken issue 

on appeal with the district court’s ruling. We therefore do not address it further. 

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 The test for deliberate indifference to a medical need in violation of the Eighth 

Amendment has an objective and a subjective prong. Mata v. Saiz, 427 F.3d 745, 

751 (10th Cir. 2005). To satisfy the objective prong at the dismissal stage, Garewal 

had to allege facts permitting a reasonable inference that his medical need was 

sufficiently serious. See id. “[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 recognize the necessity for a doctor’s attention.” 

Id. (internal quotation marks omitted). To satisfy the subjective prong, Garewal had 

to allege facts permitting a reasonable inference that the defendants “kn[ew] of and 

disregard[ed] an excessive risk to [his] health or safety.” Farmer v. Brennan, 

511 U.S. 825, 837 (1994). His factual allegations had to be sufficient to show 

defendants were “aware of facts from which the inference could be drawn that a 

substantial risk of serious harm exist[ed],” and that they actually “[drew] the 

inference.” Id. In other words, he had to show a “conscious disregard[]” of “a 

substantial risk of serious harm.” Mata, 427 F.3d at 752. 

We first consider Garewal’s allegations regarding Sliz and Fleck. Although 

Garewal’s medical card said he could have a brace for his drop foot it did not contain 

any restriction on shackling. Hence, the card was insufficient to alert Sliz and Fleck 

that Garewal’s drop foot required him to walk unshackled, since that accommodation 

was not mandated by a physician or “so obvious” as to be “easily recogniz[able]” by 

a lay person, Mata, 427 F.3d at 751 (internal quotation marks omitted). And even 

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though Fleck had previously allowed Garewal to be transported unshackled on one 

occasion, that is insufficient to show that Fleck or Sliz actually inferred a substantial 

risk of serious harm on the occasion at issue. In fact, the factual allegations point 

decisively in the opposite direction—Sliz and Fleck thought walking slowly would 

accommodate Garewal’s drop foot. They may have been wrong about that, but it 

does not show the sort of conscious disregard necessary for a constitutional claim to 

survive a motion to dismiss.4

After Garewal fell, Sliz and Fleck inquired of his ability to walk. He said he 

could but preferred not to, and they allowed him to walk slowly. Thus, we see no 

plausible deliberate indifference in their actions after he fell.5

 Nor can we see any 

plausible claim of deliberate indifference regarding Fleck’s instruction that Garewal 

had to obtain and submit his own medical kite. Fleck did not consciously disregard a 

 

4

 Garewal argues that the magistrate judge overlooked his allegations regarding 

the prior occasion, but he is mistaken. See R. at 126 (magistrate judge’s 

recommendation stating that Garewal alleged “Fleck had previously permitted [him] 

to be transported without leg shackles because of his drop foot” but that he did “not 

allege [it was] because of her belief that there was a substantial risk of serious harm 

or injury to [him]”). The district court did not specifically refer to those allegations, 

but they do not change the outcome. 

5

 On appeal, Garewal argues for the first time that he walked because other 

transferees had been tased for failing to walk. See Aplt. Opening Br. at 7; March 5 

Reply Brief at 2, 6, 7. “As a general rule we refuse to consider arguments raised for 

the first time on appeal unless sovereign immunity or jurisdiction is in question.” 

Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992). We decline to depart 

from that rule in this case. See id. (recognizing court most likely to depart from 

general rule “when we are presented with a strictly legal question the proper 

resolution of which is beyond doubt or when manifest injustice would otherwise 

result”). 

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substantial risk of serious harm when she told Garewal to request medical attention 

using jail procedures. 

Garewal’s allegations concerning Johnson and Crum amount to nothing more 

than a delay in medical care and Garewal’s disagreement with his treatment. As the 

district court pointed out, Garewal did not allege that Johnson or Crum was 

responsible for the delay. Johnson saw Garewal the morning after he submitted his 

medical kite, gave him Tylenol and Motrin, and scheduled him for the medical line 

three days later. But none of Garewal’s allegations address why it took him three 

days to submit the kite, and he did not allege (nor is there a reasonable inference 

from the facts he did allege) that Johnson deliberately failed to schedule him for the 

medical line sooner because of an indifference to his injury. Even if we were to infer 

that the jail’s procedures were to blame for either of those delays, as Garewal 

suggests in his appellate briefs, that still does not show deliberate indifference by 

Johnson or, for that matter, Crum, whose only involvement was to prescribe a 

walking boot and cane after Garewal’s foot was x-rayed. Furthermore, Garewal’s 

disagreement with the treatment decisions of Johnson and Crum are insufficient to 

sustain an Eighth Amendment claim of deliberate indifference. See Perkins v. Kan. 

Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999) (“[A] prisoner who merely 

disagrees with a diagnosis or a prescribed course of treatment does not state a 

constitutional violation.”). 

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Finally, there is no merit to Garewal’s argument that defendants’ motions to 

dismiss for failure to state a claim should have been denied because his complaint 

survived the preliminary screening process of 28 U.S.C. § 1915A. Although § 1915A 

dismissals can be because the complaint, or a portion of it, “fails to state a claim 

upon which relief can be granted,” id. § 1915A(b)(1), a district court may not be able 

to make that determination on screening. Cf. Buchheit v. Green, 705 F.3d 1157, 1161 

(10th Cir. 2012) (“Dismissing a complaint without benefit of an adversarial 

presentation is often an uncertain and time-consuming task, and the district court 

should make the call as to if and when it is appropriate.”). Simply put, the fact that a 

district court does not dismiss a complaint under § 1915A does not mean that the 

complaint will necessarily withstand a defendant’s challenge to its plausibility under 

Rule 12(b)(6).6

CONCLUSION 

 The judgment of the district court is affirmed. We grant Garewal’s motion to 

proceed in forma pauperis on appeal and remind him of his obligation to continue 

making partial payments until his entire fee has been paid. 

 Entered for the Court 

 Gregory A. Phillips 

 Circuit Judge 

 

6

 Given our agreement with the district court that Garewal failed to state a claim 

for relief based on deliberate indifference, we need not reach the parties’ arguments 

regarding qualified immunity. 

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