                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 31 2001
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

    ROBERT DEHERRERA,

                 Plaintiff-Appellant,

    v.                                                   No. 00-2112
                                                   (D.C. No. CIV-99-215-JC)
    ROY KROPINAK, Dr., Medical                            (D. N.M.)
    Doctor, Santa Fe County Detention
    Center, in his individual and official
    capacity,

                 Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Robert DeHerrera, a prisoner in the United States Penitentiary in Atlanta,

Georgia, appeals the district court’s grant of summary judgment to defendant

Dr. Roy Kropinak on plaintiff’s § 1983 claim for violation of his Eighth

Amendment constitutional right to adequate medical treatment. After our de novo

review of the parties’ briefs, the analysis of the district court, and the record on

appeal, we affirm.

       As an initial matter, we considered whether we had jurisdiction over this

appeal in view of the fact that Mr. DeHerrera did not file objections to the report

and recommendation of the magistrate judge. This circuit has adopted a firm

waiver rule under which a party who fails to make timely objection to the

magistrate’s findings and recommendations waives appellate review of both

factual and legal questions.   Moore v. United States , 950 F.2d 656, 659 (10th Cir.

1991). This rule does not apply, however, when the interests of justice dictate

otherwise. Id.

       The district court dismissed this action on March 10, 2000. Mr. DeHerrera

contends that he did not receive a copy of the magistrate judge’s report and

recommendation until April 4. In support of this assertion, Mr. DeHerrera

attached to his brief copies of (1) an envelope from the district court which is

postmarked February 15 and bears a note indicating it was delivered to the




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plaintiff on April 4 and (2) a declaration of a corrections official that, on April 4,

he delivered mail from the district court to the plaintiff.

       Ordinarily, this court will not consider documents not before the district

court, Aero-Medical, Inc. v. United States    , 23 F.3d 328, 329 n.2 (10th Cir. 1994),

and defendant has moved to strike the copies of the envelope and the declaration

on that basis. Here, however, even without the additional documentary evidence,

we have the statement of the district judge acknowledging that “[j]udging from

the Court’s docket in this case, Plaintiff most likely did not receive a copy of the

Magistrate Judge’s Findings.” R. Vol. I, doc. 47 at 2 (Order Denying Plaintiff’s

Motion for Reconsideration). Under these circumstances, we find that the

interests of justice would not be served by strict adherence to the waiver rule.     See

Moore , 950 F.2d at 659. We therefore turn to the merits of this appeal.

       Our review of the grant of summary judgment is de novo, and we apply the

same standards as those applied by the district court.      Craig v. Eberly , 164 F.3d

490, 493 (10th Cir. 1998). Thus, summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).




                                             -3-
      Mr. DeHerrera was injured in an altercation with prison personnel.

He originally named several other defendants in this suit, but Dr. Kropinak is the

only remaining defendant. We will therefore examine the facts to determine what

Dr. Kropinak knew regarding plaintiff’s situation, when he knew it, and what he

did about it.

      The first report of plaintiff’s complaint regarding leg pain occurred on

either March 13 or March 14, 1997. The first reference to Dr. Kropinak is on

March 15 when he was called “for orders” and approved Mr. DeHerrera’s

transportation to Santa Fe Imaging for X-rays. Appellee’s Supp. App. at 19.

By the time Mr. DeHerrera arrived at Santa Fe Imaging, however, the facility was

closed. Id. at 20. There is no evidence that defendant was immediately informed

of this fact, although by the time he examined plaintiff on March 17 he

understood that Mr. DeHerrera had yet to be X-rayed.       See id. at 27 (March 17

notation on chart from Dr. Kropinak that “     evidently x-ray closed by the time

pt. got there”) (emphasis added).

      After the initial phone call to Dr. Kropinak, plaintiff was given Motrin and

issued a wheelchair. On March 17, Mr. DeHerrera had X-rays which revealed two

fractures in his lower left leg. Upon receipt of that information, Dr. Kropinak

prohibited plaintiff from walking, required a wheelchair or crutches until plaintiff

could be evaluated by an orthopedist, increased the dosage of Motrin, and ordered


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that an appointment with an orthopedist be set up for plaintiff.     Id. at 27. Two

days later, Mr. DeHerrera was seen by an orthopedist who put him in a long leg

bent knee cast. In October, Mr. DeHerrera underwent surgery for nonunion of

the left distal tibia.

       The essence of Mr. DeHerrera’s claim is that he should have been X-rayed

sooner and that his leg should have been immediately stabilized. The Eighth

Amendment prohibits the “unnecessary and wanton infliction of pain” which

can manifest itself in the deliberate indifference to the serious medical needs of

inmates. Estelle v. Gamble , 429 U.S. 97, 104 (1976). There are two components

to a showing of deliberate indifference:

       The objective component is met if the deprivation is sufficiently
       serious. 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. The subjective component is met
       if a prison official knows of and disregards an excessive risk to
       inmate health or safety.

Sealock v. Colo. , 218 F.3d 1205, 1209 (10th Cir. 2000) (quotations omitted).

Negligence or even medical malpractice is not enough to constitute deliberate

indifference. Gamble , 429 U.S. at 106 (“Medical malpractice does not become a

constitutional violation merely because the victim is a prisoner.”). Finally, a

plaintiff must show that any delay incurred resulted in substantial harm.     Sealock ,

218 F.3d at 1210.


                                            -5-
       For purposes of analysis, we will assume, as did the magistrate judge, that

Mr. DeHerrera’s condition was serious. We cannot conclude, however, that

Dr. Kropinak knew of and disregarded an excessive risk to plaintiff’s health

or safety.

       On the day Dr. Kropinak was first contacted by prison medical personnel,

Mr. DeHerrera’s leg showed signs of slight swelling, bruising and warmth.

Dr. Kropinak immediately ordered X-rays and presumably prescribed the Motrin

and use of a wheelchair later referenced in the record. Immediately upon learning

that Mr. DeHerrera had not been X-rayed, Dr. Kropinak made arrangements for

the procedure to be done as soon as possible. When the X-rays revealed the

fractures, Dr. Kropinak ordered an expedited visit to an orthopedist for further

treatment. There is no evidence that Dr. Kropinak knew of Mr. DeHerrera’s

broken leg and then disregarded any risk to his health.

       Further, Mr. DeHerrera cannot show that substantial harm befell him from

any delay in getting an X-ray or in failing to immobilize the leg.   1
                                                                         The orthopedist

who eventually casted plaintiff’s leg noted that “[t]he left lower leg appears to be



1
        The record states that on March 14 medical personnel attempted to wrap
plaintiff’s leg but could not do so because plaintiff would not cooperate.
Appellee’s Supp. App. at 16. The record further states that on March 16,
plaintiff’s leg was wrapped with an Ace bandage.     Id. at 21. Plaintiff asserts that
his leg was never wrapped. For purposes of this review of the grant of summary
judgment, we will assume that plaintiff’s leg was not wrapped.

                                             -6-
clinically fairly well aligned.”   Id. at 33. When the orthopedist compared his

X-rays with those taken two days earlier, he noted no change in the position of

Mr. DeHerrera’s leg.     Id. The orthopedist’s attempt at a closed reduction revealed

“not much change in the overall alignment.”          Id. There is nothing in the record,

and plaintiff does not even suggest, that the ultimate need for surgery was the

result of plaintiff’s treatment by Dr. Kropinak.

       On appeal, Mr. DeHerrera asks us to consider what could be construed as

written answers to interrogatories from the orthopedist who treated him. This

document was not before the district court, and defendant urges that it be stricken.

We conclude, however, that it is possible this information was not presented to

the district court because Mr. DeHerrera did not receive notice of the magistrate

judge’s report and recommendation in a timely fashion.          See 28 U.S.C. §636(b)(1)

(judge may receive further evidence after magistrate’s proposed findings and

recommendations). We therefore have considered this evidence but find it

insufficient to establish deliberate indifference on the part of the defendant.

       At most, the document from the orthopedist reveals a difference of medical

opinion regarding the proper course of treatment for someone in Mr. DeHerrera’s

condition. While this evidence may support a claim for medical malpractice, it is

insufficient to establish deliberate indifference.      See Gamble , 429 U.S. at 293 (“A




                                              -7-
medical decision not to order an X-ray, or like measures, does not represent cruel

and unusual punishment. At most it is medical malpractice.”).

      Defendant-appellee’s motion to strike portions of plaintiff-appellant’s

appendix is denied. The judgment of the United States District Court for the

District of New Mexico is AFFIRMED.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Circuit Judge




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