FILED

United States Court of Appeals

Tenth Circuit

August 6, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JORGE CASANOVA, 

Plaintiff - Appellant,

v.

ROBERT ULIBARRI, Warden, 

Defendant - Appellee.

No. 14-2029

(D.C. No. 6:08-CV-00288-JAP-CG)

(D. N.M.)

 

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and MATHESON, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

This case is therefore ordered submitted without oral argument.

Plaintiff Jorge Casanova, a former state prisoner, raised several claims

against Defendant Robert Ulibarri, the former warden of the prison where

Plaintiff was incarcerated. He now appeals the district court’s entry of summary

*

 This order and judgment is not binding precedent, except under the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.

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judgment to Defendant on three claims: (1) a due process claim arising out of

Plaintiff’s placement in administrative segregation; (2) an Eighth Amendment

medical-treatment claim relating to the withholding of his medical equipment and

the allegedly inadequate medical care he received while in segregation; and (3) an

Eighth Amendment failure-to-protect claim arising out of his placement in general

population following his release from segregation. Plaintiff also contends the

district court erred in failing to recognize an Eighth Amendment medicaltreatment claim based on the time he spent in general population.

Taken in the light most favorable to Plaintiff, the record establishes several

pertinent facts. Plaintiff is a Cuban refugee who suffers from many severe health

problems as the result of torture inflicted by the Cuban government based on his

past political activism. Following his conviction on New Mexico state criminal

charges, Plaintiff was incarcerated in a state prison located in Los Lunas, New

Mexico, from February 2002 to March 2007. When he was taken into state

custody in February 2002, his physician and attorney sent letters to the prison to

inform officials of Plaintiff’s health needs, including his need to retain his

Continuous Positive Airway Pressure (CPAP) machine to treat his severe sleep

apnea. His physician told the prison: “It is essential that Mr. Casanova have his

Continuous Pressure Airway instrument and oxygen while he is incarcerated. . . . 

If this should be withheld from him for any reason, I must consider this . . .

withholding of essential medical treatment on the part of the criminal justice

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system.” (R. vol. I at 128.)

Until November 2006, Plaintiff was housed in the prison’s geriatric unit, a

unit for inmates over the age of fifty-five who have medical conditions. The

geriatric unit is located close to the prison hospital, has constant access to nursing

care, and provides inmates with more comfortable conditions than the prison’s

general population housing. 

All of the claims at issue in this appeal arose from an incident which

occurred on November 6, 2006, soon after Defendant became warden of the

prison. According to sworn statements written by Plaintiff and other inmates,

Defendant was present when a correctional officer against whom Plaintiff had

previously filed grievances searched Plaintiff’s housing unit and allegedly

discovered a contraband tobacco-like substance among Plaintiff’s belongings. 

Defendant then personally ordered Plaintiff to be removed from the geriatric unit

and placed in segregation. When Plaintiff asked to take his CPAP machine with

him, Defendant simply “said in [a] loud voice: ‘Put this man in Segregation.’”

(R. vol. 1 at 440.) Plaintiff was then handcuffed and sent to segregation without

his CPAP machine, glasses, orthopedic shoes, coat, or other medical or personal

belongings.

Plaintiff remained in segregation without his medical equipment and other

belongings until mid-December 2006, when prison officials declined to pursue

contraband charges against him. He was then released into general population

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rather than being returned to the geriatric unit. Following his placement in

general population, he was able to regain possession of his CPAP machine and

other belongings. He remained in general population until his release from the

state prison in March 2007. He then spent eleven months in a hospital as a result

of the medical deterioration he experienced while incarcerated.

The district court granted summary judgment to Defendant on the three

claims that are at issue in this appeal: (1) Plaintiff’s due process claim arising out

of his placement in segregation; (2) his Eighth Amendment claim arising out of

the withholding of his medical equipment and inadequacy of the medical care he

received in segregation; and (3) his Eighth Amendment failure-to-protect claim

based on his placement in general population following his release from

segregation. We review the district court’s summary judgment decision de novo,

applying the same standards as the district court. See Morris v. City of Colo.

Springs, 666 F.3d 654, 660 (10th Cir. 2012).

In Estate of DiMarco v. Wyoming Department of Corrections, 473 F.3d

1334 (10th Cir. 2007), we discussed four non-exclusive factors that may be

pertinent in evaluating whether a prisoner’s confinement in administrative

segregation has violated a liberty interest, thus giving rise to a due process right:

“whether (1) the segregation relates to and furthers a legitimate penological

interest, such as safety or rehabilitation; (2) the conditions of placement are

extreme; (3) the placement increases the duration of confinement . . . ; and (4) the

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placement is indeterminate.” 473 F.3d 1334, 1342 (10th Cir. 2007). We agree

with the district court that these factors do not indicate Plaintiff’s due process

rights were violated when he was placed in segregation for approximately one

month while prison officials investigated and decided whether to pursue charges

against him based on a correctional officer’s alleged discovery of contraband

among his belongings.

Plaintiff mainly argues his due process rights were violated because he was

a geriatric patient with serious medical needs and he was sent to segregation

without his orthopedic shoes, coat, glasses, CPAP machine, television, or radio. 

However, we agree with the district court that Plaintiff’s allegations regarding the

deprivation of his medical equipment and the inadequacy of the medical care he

received in the segregation unit should be evaluated as part of his first Eighth

Amendment claim and not as part of his due process claim. See Riddle v.

Mondragon, 83 F3d 1197, 1202 (10th Cir. 1996) (“[W]e have previously noted

that where constitutional protection is afforded under specific constitutional

provisions, alleged violations of the protection should be analyzed under those

provisions and not under the more generalized provisions of substantive due

process.”) As for Plaintiff’s other challenges to the conditions of his confinement

in segregation, we have previously concluded that similar conditions are

insufficient in themselves to give rise to a due process claim. See, e.g., McAdams

v. Wyo. Dep’t of Corrections, 561 F. App’x 718, 721-22 (10th Cir. 2014); Blum v.

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Fed. Bureau of Prisons, 1999 WL 638232, at *3 (10th Cir. 1999). For

substantially the same reasons given by the district court, we conclude that the

evidence does not permit a finding that Plaintiff’s due process rights were

violated by his placement in segregation.

We turn then to Plaintiff’s Eighth Amendment medical-treatment claim

based on the withholding of his medical equipment and the allegedly inadequate

medical care he received during his time in segregation. Prison officials have a

“constitutional obligation ‘to provide medical care for those [the government] is

punishing by incarceration,’” Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980)

(quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)), and a prison official

violates the Eighth Amendment if he acts with deliberate indifference to a

prisoner’s serious medical needs, see Estelle, 429 U.S. at 104. To demonstrate

deliberate indifference, a prisoner must satisfy both an objective and a subjective

prong. Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014). “The

objective prong of the deliberate indifference test examines whether the prisoner’s

medical condition was sufficiently serious to be cognizable under the Cruel and

Unusual Punishment Clause,” while “[t]he subjective prong examines the state of

mind of the defendant, asking whether the official knew of and disregarded an

excessive risk to inmate health or safety.” Id. (internal quotation marks and

brackets omitted).

The district court granted summary judgment to Defendant based on the

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subjective prong of this test. The court concluded there was no evidence

Defendant knew that Plaintiff was not receiving medical care and was without his

medical equipment while in segregation.1

 However, in reaching this conclusion,

the court ignored Plaintiff’s evidence that Defendant personally ordered Plaintiff

to be placed in segregation, yelled at him when he asked to take his CPAP

machine, and then sent him off to segregation without his CPAP machine, glasses,

and other medical equipment. “[I]t is of particular significance in this case that

deliberate indifference is shown not only by failure to provide prompt attention to

the medical needs of a [prisoner], but also by intentionally interfering with the

treatment once prescribed.” Martin v. Bd. of Cnty. Comm’rs of Pueblo Cnty., 909

F.2d 402, 406 (10th Cir. 1990); see also Estelle, 429 U.S. at 105-06 (holding that

deliberate indifference to serious medical needs violates the Eighth Amendment

“whether the indifference is manifested by prison doctors in their response to the

1

 The court reached this conclusion in part because prison officials did not

answer any of Plaintiff’s attorney’s numerous phone calls to the prison to

complain about Plaintiff’s lack of medical treatment and equipment in

segregation, and thus the court concluded there was no evidence that Defendant

was directly told about Plaintiff’s medical difficulties and requirements. Because

we reverse the district court’s summary judgment decision based on evidence that

Defendant personally and intentionally interfered with Plaintiff’s medical

treatments, we need not here resolve the question of whether a prison official may

be found liable under a deliberate indifference theory when the evidence, taken in

the light most favorable to the prisoner, indicates that the prison official

systematically avoids learning of constitutional violations against prisoners by

maintaining an inadequate communications system which prevents such violations

from being reported to him.

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prisoner’s needs or by prison guards in intentionally denying or delaying access

to medical care or intentionally interfering with the treatment once prescribed”). 

Viewing the evidence in the light most favorable to Plaintiff, Defendant

intentionally interfered with the treatments prescribed for an ill geriatric patient

by personally refusing to allow him to keep the medical equipment which he

needed and had been authorized to use in prison. This evidence is sufficient to

satisfy the subjective prong of the deliberate indifference test. Plaintiff did not

need to additionally prove that he or his attorney continued to remind Defendant

of the precarious medical situation he had placed Plaintiff in throughout the

period of his segregation.

In an earlier decision denying summary judgment to Defendant, the district

court concluded that Plaintiff had submitted sufficient evidence to satisfy the

objective prong of the deliberate indifference test. The court noted that Plaintiff

had submitted sworn statements regarding the deterioration of his health while he

was in segregation, as well as statements from other inmates regarding his serious

condition when he was released into general population and additional evidence

substantiating his claim that he was hospitalized for almost a year following his

release from prison. We agree with the district court that this evidence, taken in

the light most favorable to Plaintiff, is sufficient to show a serious medical

condition satisfying the objective prong of the test. Because we conclude

Plaintiff also presented sufficient evidence that Defendant acted with deliberate

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indifference to Plaintiff’s serious medical needs, we reverse the district court’s

grant of summary judgment in favor of Defendant on Plaintiff’s Eighth

Amendment medical-treatment claim.

We turn next to Plaintiff’s Eight Amendment failure-to-protect claim based

on his placement in general population following his release from segregation. 

“[I]n order to establish a cognizable Eighth Amendment claim for failure to

protect, a plaintiff must show that he is incarcerated under conditions posing a

substantial risk of serious harm, the objective component, and that the prison

official was deliberately indifferent to his safety, the subjective component.” 

Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). Plaintiff contends

his placement in general population put him at substantial risk of serious harm

because he was an infirm and elderly man, it was well-known that Plaintiff’s twin

sons were correctional officers at a different detention center, and Plaintiff’s

criminal charges involved a seventeen-year-old girl who was a local celebrity and

“cult idol within the boxing sports in New Mexico.” (Appellant’s Opening Br. at

25 (capitalization standardized).) However, Plaintiff has not shown that he

suffered any physical or psychological harm (apart from ongoing problems

relating to his medical conditions) as a result of his placement in general

population, nor has he shown that Defendant threatened him, spread damaging

information about him, or otherwise took any affirmative actions that placed him

at an increased risk of harm. Under all of the circumstances of this case, we

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conclude that Plaintiff’s evidence is insufficient to establish a triable failure-toprotect claim based on his placement in general population. See Riddle, 83 F.3d

at 1205 (holding that the plaintiff must show “more than a conclusory claim of

being afraid” that other inmates might harm him after discovering his status as a

sex offender in order to establish an Eighth Amendment violation); Street v. Fair,

918 F.2d 269, 272 (1st Cir. 1990) (rejecting an Eighth Amendment claim where

“plaintiff has made no allegation that he was physically attacked,” and, while he

“complains in conclusory fashion of being ‘afraid’ and ‘aggravated,” . . . he has

detailed no specific circumstances that would necessarily support a claim of

mental suffering”); cf. Benefield, 241 F.3d at 1271-72 (holding that a plaintiff had

sufficiently alleged an Eighth Amendment violation where a prison official

allegedly told other inmates the plaintiff was a snitch, causing him to fear attacks

and even death, since “the Eighth Amendment may be implicated not only to

physical injury, but also by the infliction of psychological harm.”).

Finally, we consider Plaintiff’s argument that the district court failed to

recognize an Eighth Amendment medical-treatment claim based on Plaintiff’s

time in general population. The complaint does not clearly include such a claim,

and Plaintiff never moved to amend the complaint to include this potential claim. 

Moreover, it is not clear from the record what the specific basis for such a claim

would be. Under these circumstances, we hold the district court did not err in

failing to recognize and address a potential Eighth Amendment medical-treatment

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claim arising out of Plaintiff’s time in general population.

For the foregoing reasons, we REVERSE and REMAND the district

court’s grant of summary judgment in favor of Defendant on Plaintiff’s Eighth

Amendment medical-treatment claim arising out of his placement in segregation

without any of his medical equipment. We AFFIRM the district court’s grant of

summary judgment on Plaintiff’s other claims for relief. Appellant’s motion to

proceed in forma pauperis on appeal is GRANTED.

Entered for the Court

Monroe G. McKay

Circuit Judge

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