                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 19 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    COURTNEY J. VAN RIPER,

                Plaintiff-Appellant,

    v.                                                   No. 01-8083
                                                    (D.C. No. 99-CV-91-D)
    WEXFORD HEALTH SOURCES,                               (D. Wyo.)
    INC., a Pennsylvania corporation;
    JUDY UPHOFF, individually;
    VANCE EVERETT, individually;
    HERBERT COTTON, individually,

                Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR , PORFILIO , and O’BRIEN , 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      This order and judgment is not binding precedent, except under the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.
      Pro se appellant Courtney Van Riper challenges the district court’s decision

entering summary judgment for defendants in his civil rights action. We reverse

and remand.

      Mr. Van Riper is an inmate at Wyoming State Penitentiary (WSP). He filed

this civil rights action on May 6, 1999, naming as defendants Wexford Health

Sources, Inc., which provided contract medical services for WSP; Herbert Cotton,

Wexford’s medical director; 1 Judith Uphoff, Director of the Wyoming Department

of Corrections (DOC); and Vance Everett, WSP’s warden. 2 Mr. Van Riper alleges

that both the Wexford and the DOC defendants violated his Eighth Amendment

rights by denying him necessary medical care, and that the DOC defendants

further violated his Eighth Amendment rights by placing him in unsafe conditions

such that he was assaulted by another inmate. 3




1
      For the sake of simplicity, Wexford and Dr. Cotton will be referred to as
the Wexford defendants. Wexford ceased to provide services to WSP on June 15,
1999. R. Vol. 8, Doc. 141 (Sept. 28, 2001 Order Adopting Report and
Recommendations) at 7-8.
2
      Ms. Uphoff and Mr. Everett will be referred to as the DOC defendants.
3
       Mr. Van Riper originally also alleged that the DOC defendants violated his
due process rights, retaliated against him for filing grievances, and denied him
access to the courts. He voluntarily dismissed the claims of retaliation and denial
of access to the courts, and has declined to address his due process claim in his
appellate briefing, thus waiving it for purposes of appeal. See Grant v.
Pharmacia & Upjohn Co., 314 F.3d 488, 494 (10th Cir. 2002) (deeming waived
claim not briefed on appeal).

                                        -2-
      Both the Wexford and DOC defendants moved for summary judgment but,

as explained below, failed to properly establish a record. Nevertheless, in two

separate reports and recommendations, the magistrate judge recommended that

summary judgment be entered for defendants on all claims. The district court

accepted the magistrate judge’s recommendations.

      Mr. Van Riper now appeals, arguing that the district court erred in failing

to (1) conclude that the evidence supported a claim of deliberate indifference to

serious medical needs; (2) consider evidence that defendants altered medical

records; (3) conclude that the evidence supported a claim of unconstitutionally

unsafe conditions; (4) give due weight to a Department of Justice (DOJ) report

citing unconstitutional conditions at WSP; and (5) compel production of WSP’s

violence logs.

      We review a grant of summary judgment de novo, affirming where “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 judgment as a matter of law.”

Fed. R. Civ. P. 56(c); Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177,

1180 (10th Cir. 2002). We view the evidence and the inferences drawn therefrom

in the light most favorable to the party opposing summary judgment. Hysten,

296 F.3d at 1180.


                                          -3-
      In this case, defendants provided exhibits with their motion for summary

judgment but failed to properly certify those exhibits in accordance with

Rule 56(e). That failure leaves us as it left the district court. See R. Vol. 8,

Doc. 141 (Sept. 28, 2001 Order Adopting Report and Recommendations) at 10.

The allegations in Mr. Van Riper’s verified complaint 4 and the exhibits attached

to his opposition to defendant’s motion for summary judgment provide the

basis of decision. In the district court defendants conceded the unfavorable

state of the record but maintained they were entitled to summary judgment on

Mr. Van Riper’s version of the facts. That argument continues here. It is a

difficult row to hoe.


      Medical Treatment

      Prior to arriving at WSP, Mr. Van Riper was diagnosed with

gastrointestinal reflux disease (GERD), and chronic obstructive pulmonary

disease (COPD), as well as other conditions. He had been prescribed medication

to treat these conditions. Mr. Van Riper did not receive his prescribed medication

on numerous occasions, sometimes for weeks at a time. Defendants can offer no

explanation for this failing as they have presented no affidavits from either


4
      A verified complaint stating facts that would be admissible at trial and that
are based on plaintiff’s personal knowledge has the same force and effect as an
affidavit for purposes of responding to a motion for summary judgment. See
Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988).

                                          -4-
medical or DOC personnel, or other evidence that would explain why these delays

in providing medication took place.

         The Eighth Amendment prohibits the imposition of cruel and unusual

punishment. Prison officials violate the Eighth Amendment if they display

deliberate indifference in the face of an inmate’s serious medical needs. Riddle v.

Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). To establish this type of

Eighth Amendment claim, an inmate must show that (1) his medical needs were

serious, and (2) prison officials were deliberately indifferent to those needs. Id.

at 1203. In addition, in situations where, as here, treatment was delayed rather

than denied altogether, our case law requires that the inmate suffer “substantial

harm” as a result of the delay. Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.

2001).

         The defendants appear to argue that they are entitled to summary judgment

because Mr. Van Riper’s medical needs were not serious. A medical need is

serious if it has been diagnosed by a physician as requiring treatment or is so

obvious that a layperson could recognize the need for a doctor’s attention.

Riddle, 83 F.3d at 1202. Here, there is no dispute that Mr. Van Riper was

diagnosed with GERD and COPD, among other conditions, and was prescribed




                                          -5-
medication to treat these conditions. 5 Therefore, the summary judgment evidence

meets the first element of this test.

      Regarding the substantial harm requirement, “[w]e have held that the

substantial harm requirement may be satisfied by lifelong handicap, permanent

loss, or considerable pain.” Garrett, 254 F.3d at 950. Mr. Van Riper’s

allegations that he suffered through painful episodes of untreated bronchitis and

respiratory difficulty, as well as extensive periods of untreated, painful GERD

episodes are sufficient to create a fact issue on substantial harm. See Sealock v.

Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (concluding evidence of several

hours of suffering from severe chest pain following heart attack was sufficient to

defeat summary judgment on Eighth Amendment claim). 6




5
       GERD is characterized by regurgitation of gastric contents into the
esophagus. The Merck Manual 232 (17th Ed. 1999). GERD can produce painful
esophageal ulcers that heal slowly and tend to recur.        Id. GERD may also lead to
esophagitis, which can cause massive hemorrhages.           Id. COPD is “characterized
by chronic bronchitis or emphysema and airflow obstruction that is generally
progressive.” Id. at 568. COPD may produce occasional acute chest illness, and
can lead to acute respiratory failure and death.      Id. at 573-76.
6
        Mr. Van Riper faults the district court for “dismissing the claims” that
defendants tampered with his medical records. Opening Br. at 20. While
falsification of medical records does not constitute a separate claim, it may
support Mr. Van Riper’s Eighth Amendment claim if determined to be relevant by
the district court on remand.  See Green v. Branson , 108 F.3d 1296, 1303-04
(10th Cir. 1997) (showing of deliberate refusal to provide medical attention
coupled with falsification of medical records may give rise to an Eighth
Amendment violation).

                                          -6-
      Deliberate indifference to serious medical needs is the unnecessary and

wanton infliction of pain. Riddle, 83 F.3d at 1203. An inadvertent failure to

provide adequate medical care does not rise to the level of an unnecessary and

wanton infliction of pain. Id. Similarly, conduct that at most establishes medical

malpractice does not meet the standard for an Eighth Amendment violation. Id.

Here, the summary judgment evidence shows that both the Wexford and

the DOC defendants were made aware of the substantial delays in providing

Mr. Van Riper’s medication through his numerous grievances. Defendants offer

no explanation or justification, medical or otherwise, for the repeated delays.

Defendants, therefore, are not entitled to summary judgment on the issue of

deliberate indifference on this record. See Ramos v. Lamm, 639 F.2d 559, 575

(10th Cir. 1980) (“Deliberate indifference to serious medical needs is shown

when prison officials have prevented an inmate from receiving recommended

treatment . . . .”); Boretti v. Wiscomb, 930 F.2d 1150, 1155-56 (6th Cir. 1991)

(holding that alleged five-day delay in providing prescribed treatment–changing

dressing of wound and providing pain medication–created a triable issue of fact

regarding deliberate indifference); Ancata v. Prison Health Servs., Inc., 769 F.2d

700, 704 (11th Cir. 1985) (“The knowledge of the need for medical care and the

intentional refusal to provide that care has consistently been held to surpass

negligence and constitute deliberate indifference.”); Archer v. Dutcher, 733 F.2d


                                         -7-
14, 16 (2d Cir. 1984) (holding that if necessary medical treatment is denied for

nonmedical reasons, a case of deliberate indifference has been made out); cf. Hunt

v. Uphoff , 199 F.3d 1220, 1223-24 (10th Cir. 1999) (holding that allegations that

officials failed to provide insulin prescribed by prison doctor was sufficient to

state claim for deliberate indifference).


      Unsafe Conditions

      To establish that prison officials violated the Eighth Amendment by failing

to prevent harm to an inmate, “the inmate must show that (1) he is incarcerated

under conditions posing a substantial risk of serious harm, and (2) prison officials

acted” with deliberate indifference in the face of that risk. Grimsley v. MacKay,

93 F.3d 676, 680-81 (10th Cir. 1996). In other words, prison officials knew of

the risk but disregarded it. See Lopez v. LeMaster, 172 F.3d 756, 760-61

(10th Cir. 1999).

      Here, Mr. Van Riper presents unchallenged allegations that (1) the assault

against him arose at least in part out of conditions of understaffing, (2) there had

been twenty-nine prior assaults at the facility also due in part to understaffing,

and (3) defendants Uphoff and Everett were aware of understaffing problem

because they had received a DOJ report highlighting this issue. See R. Vol. 7,

Doc. 118 (May 24, 2000 Report and Recommendation) at 18; see also R. Vol. 6,



                                            -8-
Doc. 104 at O-12 (DOJ report concluding that “[l]ack of adequate supervision by

staff [at WSP] greatly increases the likelihood of inmate-on-inmate violence”).

      When prison officials create policies that lead to dangerous levels of

understaffing and, consequently, inmate-on-inmate violence, this is sufficient to

establish personal participation in an Eighth Amendment violation. See Lopez,

172 F.3d at 761 (holding that unsafe conditions claim survived summary judgment

where reports to prison officials revealed deficiencies in staff and back up,

training, and supervision of inmates). Again, summary judgment for defendants

is not warranted on this record.


      Production of Violence Logs

      In connection with his claim of unsafe conditions, Mr. Van Riper asserts

that it was error for the district court to deny his motion to compel the DOC

defendants to produce all of WSP’s violence logs. We review the denial of a

motion to compel for an abuse of discretion. See Munoz v. St. Mary-Corwin

Hosp., 221 F.3d 1160, 1169 (10th Cir. 2000). Here, the district court reasoned

that the violence logs should remain presumptively privileged pursuant to

Wyo. Stat. Ann. § 16-4-203(b)(i) because Mr. Van Riper had failed to argue the

relevance of the records. R. Vol. 8, Doc. 140 at 2-3. However, Mr. Van Riper

did argue in his motion to compel that this evidence was relevant to prove that the

DOC defendants were aware of the risk of inmate-on-inmate assault. R. Vol. 7,

                                         -9-
Doc. 114 at 3. Therefore, we conclude that the district court abused its discretion

in denying the motion on this ground.


      Qualified Immunity

      The Wexford defendants additionally argue that summary judgment in their

favor may be affirmed on the basis of qualified immunity. The district court

declined to address whether the Wexford defendants could invoke qualified

immunity, instead concluding that Mr. Van Riper had shown no rights violation at

all. Although we reverse the district court’s conclusion that Mr. Van Riper failed

to raise a triable issue as to whether his rights were violated, we express no

opinion on whether the Wexford defendants are entitled to qualified immunity.

The issue is not foreclosed.

      For the reasons stated above, we REVERSE and REMAND this matter for

further proceedings consistent with this decision. The motion to supplement the

record is GRANTED.


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




                                        -10-
