                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          May 26, 2015

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
MILTON BRADLEY GAREWAL,

             Plaintiff - Appellant,

v.                                                          No. 14-1413
                                                (D.C. No. 1:12-CV-02348-RM-BNB)
U.S. MARSHAL JOROME SLIZ; U.S.                               (D. Colo.)
MARSHAL GILLIAN FLECK; DR.
CRUM; NURSE JOHNSON; THE
NATIONAL COMMISSION ON
CORRECTIONAL HEALTH CARE,

             Defendants - Appellees.


                            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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                  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.




                                          -2-
      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.


                                          -3-
       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.


                                            -4-
      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


                                          -5-
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”).


                                           -6-
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.”).




                                          -7-
      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.


                                          -8-
