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Peterson v. Creany

United States Court of Appeals, Tenth Circuit

February 27, 2017

BRUCE EDWARD PETERSON, Plaintiff - Appellant,
v.
DR. TIMOTHY CREANY; DR. BEATTE; DR. DAVID TESSIER; RICK MEICER, R.N.; MARK WIENPAHL; WARDEN LOU ARCHULETA, Defendants-Appellees.

         D.C. No. 1:14-CV-01916-REB-NYW, D. Colo.

          Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.

          ORDER AND JUDGMENT [*]

          Robert E. Bacharach Circuit Judge

         Mr. Bruce Peterson is a Colorado state prisoner who filed a pro se action, invoking 42 U.S.C. § 1983 and alleging deliberate indifference to serious medical needs.[1] The defendants filed a motion for dismissal or summary judgment, and Mr. Peterson moved for appointment of counsel.

         The district court denied Mr. Peterson's motion for appointment of counsel and granted (1) the motion to dismiss by six defendants (Tessier, Archuleta, Creany, Beatte, Miller, and Jane Doe) on the ground that Mr. Peterson had failed to state a claim on which relief can be granted and (2) the motion for summary judgment by two defendants (Wienpahl and Meicer) based on a failure to exhaust available administrative remedies.

         Mr. Peterson appeals these rulings, and we affirm.

         I. Motion to Request Counsel

         The district court denied Mr. Peterson's motion for appointment of counsel, reasoning that the case was not complex enough to warrant appointment of counsel and that Mr. Peterson could sufficiently advance the necessary facts and legal arguments. The court further found that any potential issues regarding adequate access to the prison law library could be addressed in due course, that Mr. Peterson's concerns about the trial were premature and not unique to his case, and that the merits were not sufficiently clear to require counsel.

          We review this reasoning for an abuse of discretion. Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). Applying this standard, we conclude that the district court acted within its discretion. The court was powerless to compel an attorney to take the case; the court could only ask an attorney to consider representing Mr. Peterson. Id. at 396. In deciding whether to request counsel for Mr. Peterson, the court was to consider the merits, the nature of the claims, Mr. Peterson's ability to present the claims, and the complexity of the issues. Id. at 397. The district court considered these factors and supplied a cogent explanation for the decision. That decision fell within the district court's discretion.

         II. Dismissal

         Even if the allegations in the complaint are true, they would not create liability for defendants Tessier, Archuleta, Creany, Beatte, Miller, and Jane Doe. Thus, the district court properly dismissed the claims against these six individuals.

         A. Allegations in the Amended Complaint[2]

         In considering the ruling on the motion to dismiss, we start with the amended complaint.

          There Mr. Peterson alleges a long history of mental illness, epilepsy, and hepatitis C. His ailments were recorded in the prison system's database and were classified as requiring chronic care. But that classification was removed.

         Mr. Peterson alleges that (1) Dr. Timothy Creany prescribed Tegretol to treat bipolar disorder and epilepsy despite Mr. Peterson's hepatitis and (2) Tegretol is contraindicated for patients with liver problems. When Mr. Peterson complained about side effects, he was allegedly told that mental health patients had to continue to take medication or face lockdown and suspension of privileges.

         Dr. Creany then ran a blood test, discovered that Mr. Peterson's hepatitis had been "reactivated" because of the Tegretol, and said to stop taking the medication. Dr. Creany also ordered the dispensary to stop giving Tegretol to Mr. Peterson.

         By this time, Mr. Peterson was allegedly near death, with blood-clot bruising on his skin and severe liver damage. He complained about the blood clots to a prison psychiatrist, Dr. Miller, who was allegedly dismissive.

         Dr. Miller then prescribed Carbamazepine, which is the generic equivalent of Tegretol. The Carbamazepine allegedly caused (1) pain in Mr. Peterson's leg, joints, neck, stomach, head, chest, and lungs; (2) weakness; (3) vomiting; (4) bleeding; (5) swelling of the feet and throat; (6) confusion; (7) shortness of breath; (8) sleep disruption; (9) faintness; (10) loss of teeth; and (11) bloodshot eyes.

         Mr. Peterson alleges that another prison psychiatrist, Dr. Hope Beatte, shared responsibility for the second prescription. According to Mr. Peterson, Dr. Beatte should not have ordered Carbamazepine without examining the medical records, which ...


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