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

                            FOR THE TENTH CIRCUIT                 December 2, 2016
                        _________________________________
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
TERRANCE M. FARRELL, III,

     Plaintiff - Appellant,

v.                                                      No. 16-1307
                                           (D.C. No. 1:13-CV-01605-MSK-CBS)
CITY AND COUNTY OF DENVER,                               (D. Colo.)
COLORADO; GREG KELLERMEYER;
ANY INSURANCE CARRIER FOR
GREG KELLERMEYER; MEDICAL
ADMINISTRATOR OF DOWNTOWN
DENVER DETENTION CENTER;
PATIENT ADVOCATE FOR DENVER
HEALTH MEDICAL CENTER; DENVER
HEALTH AND HOSPITAL
AUTHORITY; DENVER COUNTY
SHERIFF GARY WILSON; DENVER
SHERIFF DEPUTY MICKELSON;
DENVER SHERIFF DEPUTY
SHERROD; DENVER SHERIFF
DEPUTY TOMSICK; DENVER SHERIFF
DEPUTY NORRGARD; DENVER
SHERIFF DEPUTY SINGLETON;
DENVER SHERIFF DEPUTY BLAINE;
ANY INSURANCE CARRIER FOR CITY
AND COUNTY OF DENVER,
COLORADO,

     Defendants - Appellees.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

       Proceeding pro se,1 Colorado prisoner Terrance M. Farrell III appeals the

district court’s grant of summary judgment against him on his Eighth Amendment

deliberate indifference claims. Because the district court correctly concluded that

Farrell didn’t establish that defendant Greg Kellermeyer was subjectively indifferent

to Farrell’s medical needs, we affirm.

       Farrell was admitted to Denver Health Medical Center after he overdosed on

heroin and cocaine. Upon his discharge, Farrell was transferred to the Denver

Detention Center (DDC), where he began taking medications for his various

psychiatric health conditions. Nearly three months into Farrell’s treatment at DDC,

Dr. Patrick Fox discontinued Farrell’s medication regimen after DDC staff caught

Farrell “diverting” his medication, i.e., spitting his pills into a cup or concealing them

in his mouth instead of swallowing them. R. vol. 2, 252.



       *
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
       1
         We liberally construe Farrell’s pro se filings, but it’s not our role to act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                             2
      Shortly thereafter, Farrell submitted a series of “kites,” or medical grievances,

to DDC staff. Id. at 245. In a kite on February 20, he asked Dr. Kellermeyer—a DDC

psychiatrist—to resume his medications, complaining that he was “suffering” without

them. R. vol. 1, 712. Two days later, Farrell submitted another kite urging that he

“need[ed] to see psych ASAP.” Id. at 714. On February 23, a licensed practical nurse

visited Farrell and scheduled him for a psychiatric evaluation. The next day, a

psychiatric licensed practical nurse visited Farrell, recorded his complaints, and made

a plan to review the kites with Kellermeyer or another psychiatrist. On February 25,

Dr. Fox reinstated one of Farrell’s three medications—Elavil—with instructions that

the medicine be crushed and floated, presumably in water. Kellermeyer stamped and

initialed both kites, which was his only recorded involvement with Farrell in

February.

      On March 5, Farrell submitted another kite stating that he needed to speak

with Kellermeyer about his panic attacks, which he asserted had caused him to fall

and injure himself. In contrast with the February kites, Kellermeyer didn’t stamp and

initial this kite, and there’s no record evidence showing that he received it.

      Then, apparently in response to a grievance filed by Farrell, Kellermeyer

explained Farrell’s circumstances in an email dated March 21. Kellermeyer wrote

that Farrell has a history of psychiatric issues and admitted to diverting medicine

while at DDC. Kellermeyer explained that one of Farrell’s discontinued

medications—Neurontin—is dangerous, subject to abuse, and has little efficacy for

anxiety. Kellermeyer wrote that Elavil, which Dr. Fox reinstated, might help Farrell

                                            3
with his anxiety. Kellermeyer also explained that Neurontin is valuable on the black

market, and that Farrell was likely feigning certain symptoms in order to obtain it.

      Farrell later filed a § 1983 action against a variety of entities and DDC

employees in connection with his incarceration. The district court ultimately

dismissed all defendants but Kellermeyer on grounds that aren’t relevant to this

appeal.2 In his operative complaint, Farrell asserts various Eighth Amendment

deliberate indifference violations against Kellermeyer. Farrell and Kellermeyer filed

cross-motions for summary judgment.

      The district court granted summary judgment in favor of Kellermeyer. The

district court identified two potential acts of deliberate indifference by Kellermeyer:

(1) allegedly discontinuing Farrell’s medications; and (2) allegedly ignoring Farrell’s

kites.3 The district court concluded that Farrell failed to show Kellermeyer was

subjectively indifferent to Farrell’s serious medical needs, citing Mata v. Saiz, 427

F.3d 745, 751 (10th Cir. 2005) (“The subjective prong of the deliberate indifference

      2
         In his supplemental brief, Farrell purports to appeal the district court’s
dismissal of the City and County of Denver. But neither of his briefs addresses the
basis for that dismissal—Farrell’s failure to exhaust his administrative remedies.
Farrell’s opening brief doesn’t mention exhaustion at all, and his supplemental brief
devotes a single, cursory paragraph to the issue. Accordingly, he hasn’t adequately
preserved this issue for appeal. See Fed. R. App. P. 28(a)(8)(A) (requiring argument
section of appellant’s brief to contain “appellant’s contentions and the reasons for
them, with citations to the authorities . . . on which the appellant relies”); Garrett v.
Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (applying Rule
28(a) to pro se litigant and declining to “take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record”).
       3
         We note that Farrell’s operative complaint identifies possible violations
beyond these two. But the district court apparently construed Farrell’s summary
judgment briefing as limited to these two claims, and Farrell doesn’t challenge that
premise on appeal.
                                            4
test requires the plaintiff to present evidence of the prison official’s culpable state of

mind.”).

         Farrell appeals, challenging the district court’s grant of summary judgment to

Kellermeyer and largely renewing the arguments he made below. We review the

district court’s decision granting Kellermeyer’s motion for summary judgment de

novo, applying the same legal standard as the district court and viewing the evidence

in the light most favorable to Farrell. See Zisumbo v. Ogden Reg’l Med. Ctr., 801

F.3d 1185, 1196 (10th Cir. 2015).

         After considering the parties’ arguments and the appellate record, we affirm

for substantially the reasons stated in the district court’s order.

         We further grant Farrell’s motion to proceed on appeal without prepayment of

costs or fees because (1) he has shown a financial inability to pay the required filing

fees; and (2) the arguments he raises on appeal are reasoned and non-frivolous. See

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). We order Farrell to

continue making partial payments until he has paid the full amount of his fees and

costs.




                                              Entered for the Court


                                              Nancy L. Moritz
                                              Circuit Judge




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