                                                                                 FILED
                      UNITED STATES COURT OF APPEALS                 United States Court of Appeals
                                                                             Tenth Circuit
                             FOR THE TENTH CIRCUIT
                         _________________________________                  August 7, 2020

                                                                        Christopher M. Wolpert
 JOHN STOOPS,                                                               Clerk of Court
       Plaintiff - Appellant,

 v.                                                          No. 20-1065
                                                 (D.C. No. 1:17-CV-01362-RM-NRN)
 CHARLENE LARSON; BRITTANY                                    (D. Colo.)
 DOWIS; GRACE L. KIER; LORI
 HOLTER; CORRECTIONAL HEALTH
 PARTNERS; MARY MARGARET; D.
 TOWNE; WILLIAM SHERWOOD, JR.,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges.**
                  _________________________________


      Plaintiff-Appellant John Stoops, an inmate appearing pro se, appeals from the

district court’s final judgment granting summary judgment to various defendants and

closing the case. In his civil rights complaint pursuant to 42 U.S.C. § 1983, Mr.

Stoops alleged that the defendants violated his Eighth Amendment rights by


       *
          This order and judgment is not binding precedent, except under the doctrines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.
       **
          After examining the briefs and 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). The case is therefore
ordered submitted without oral argument.
providing delayed and inadequate medical care after he fractured his hip on June 9,

2015. Mr. Stoops received a replacement hip on June 16, 2015. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.



                                     Background

      Mr. Stoops suffered an epileptic seizure that caused him to fall and fracture his

hip. Emergency medical responders transported him to the medical services clinic in

a wheelchair, but the nurses ultimately sent him back to his living unit without

further treatment. Mr. Stoops endured serious pain for the next four days but

otherwise went about his days as normal. He alleges the injury in his hip was minor

when he fell and became far more serious as he walked about without treatment. He

complains that treatment was delayed after he was transported to the Denver Health

Medical Center on June 13, 2015, and that physical therapists there further damaged

his hip when they attempted to treat it. He contends that a correctional officer should

have intervened.

      Mr. Stoops filed his complaint against employees of the Colorado Department

of Corrections and others, including four nurses and one correctional officer. The

district court reviewed the complaint and dismissed several claims against various

defendants including Lt. William Sherwood. After reviewing a third amended

complaint, a magistrate judge issued a report recommending that the court grant the

motion to dismiss filed by two defendants (Mary Margaret Towne and Correctional

Health Partners). The district court accepted and adopted the recommendation over

                                           2
Mr. Stoops’s objection. The remaining defendants (Charlene Larson, Brittany

Dowis, Grace Kier, and Lori Holter, all nurses) moved for summary judgment, which

the district court granted on the grounds of failure to exhaust administrative

remedies, a lack of evidence demonstrating an Eighth Amendment violation, and

qualified immunity.

      On appeal, Mr. Stoops complains about the process and argues that the district

court erred (1) in dismissing Lt. Sherwood as a defendant because he should have

intervened to prevent injury caused by physical therapists, (2) in granting summary

judgment in favor of nurses Larson, Dowis, Kier, and Holter based on a failure to

exhaust administrative remedies (Mr. Stoops admits his grievance was untimely) and

on the merits, and (3) in dismissing the physical therapists (Jane Doe and Mary

Margaret Towne).



                                      Discussion

      The district court did not err in dismissing Lt. Sherwood. Aplees. Supp. App.

31. The Eighth Amendment prohibits deliberate indifference to an incarcerated

person’s serious medical needs, which includes intentional denial or delay of medical

care. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To make an Eighth Amendment

claim, the plaintiff must show both an objectively serious medical condition and

subjective deliberate indifference on the part of a defendant. Craig v. Eberly, 164

F.3d 490, 495 (10th Cir. 1998). Mr. Stoops alleged that Lt. Sherwood was aware of

his condition, and present (and laughing) while the physical therapists were treating

                                           3
him. 1 R. 404, 406. Although he contends that Lt. Sherwood should have

intervened, no facts alleged suggest that Lt. Sherwood had any control over the

physical therapists, let alone any role in denying, delaying, or interfering with

treatment. See Estelle, 429 U.S. at 104–05. In these circumstances, exercising de

novo review, we conclude that the claim is not plausible given the high hurdle of

proving deliberate indifference to serious medical needs. Ashcroft v. Iqbal, 556 U.S.

662, 679–81 (2009) (plausibility standard).

      In granting summary judgment in favor of nurses Larson, Dowis, Kier, and

Holter, the district court held that Mr. Stoops had failed to exhaust his administrative

remedies (an affirmative defense) because his grievance was untimely. 2 R. 130–31;

see 42 U.S.C. § 1997e(a); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002).

In the alternative, the district court held that Mr. Stoops had not demonstrated

deliberate indifference to serious medical needs. 2 R. 132 (“[T]he gist of Plaintiff’s

claims is that Defendants should have done more at SCF to diagnose and treat his

hip. But viewing the record in the light most favorable to Plaintiff, he has shown, at

most, that Defendants may have been negligent in their diagnoses and treatment.”);

see Estelle, 429 U.S. at 105. The district court also determined that absent a

constitutional violation, these defendants were entitled to qualified immunity. 2 R.

130–31.

      Exercising de novo review, we affirm the district court’s judgment regarding

these defendants on the grounds that Mr. Stoops (1) has not demonstrated that prison

officials acted in such a way that rendered his administrative remedies unavailable;

                                            4
and (2) that ignorance of the law generally does not excuse late filing. See Marsh v.

Soares, 223 F.3d 1217, 1221 (10th Cir 2000). We do note that such a dismissal is

without prejudice.

        Finally, regarding the dismissal of the physical therapists, Mr. Stoops failed to

timely object to the magistrate judge’s May 15, 2019, report and recommendation,

which contained an explicit notice of the need to timely object within 14 days and the

consequences of not doing so. I R. 670. Although Mr. Stoops contended that his

objections were timely, they were not: his objections were dated June 4, 2019 (one

day after the period would have run assuming three days mailing, see Fed. R. Civ. P.

6(d)), and filed June 7, 2019. I R. 679, 683. Defendant Towne pointed out that a

party has only 14 days to object, I R. 688, but the district court resolved the

objections on the merits. I R. 699. In this circuit, we have a “firm waiver rule” that a

failure to object waives factual and legal objections. See Duffield v. Jackson, 545

F.3d 1234, 1237 (10th Cir. 2008). Although there is an “interests of justice”

exception, we are not persuaded it applies here.

        AFFIRMED. We GRANT the motion to appear IFP and remind Mr. Stoops

that he is obligated to continue making partial payments until the entire fee has been

paid.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge


                                            5
