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Tenth Circuit Reverses Dismissal of Federal Prisoner's Medical Suit

The Tenth Circuit Court of Appeals reversed a lower court's dismissal of a federal prisoner's suit, finding that the prisoner had adequately exhausted his administrative remedies and stated a cognizable deliberate indifference claim.

Former Japanese Red Army member Yu Kikumura is serving a 262 month sentence at the United States Penitentiary, Administrative Maximum (ADX) in Florence, Colorado. On July 5, 2005 he became violently ill in his cell. Guards Vail and Sanders called Physician's Assistant (PA) Anthony Osagie, who came to Kikumura's cell.

When Kikumura could not stand, Osagie had Vail and Sanders drag him to the infirmary by his arms. Osagie accused Kikumura of being "dramatic" and of "exaggerating." Following a "perfunctory exam," Osagie diagnosed Kikumura as suffering from lactose intolerance, "prescribed 'reassurance and observation,' gave him acetaminophen and encouraged him to drink plenty of fluids." He was then dragged back to his cell.

In reality, Kikumura was suffering an emergency medical condition called hyponatraemic encephalopathy, which is exaggerated by fluid consumption. Kikumura's condition rapidly deteriorated. Six hours after the onset of the condition, Osagie called an on-call physician who arrived an hour later. Kikumura was "'in extremis,' meaning at the point of death." He "was suffering from 'hyponatraemic encephalopathy, acute pulmonary edema and congestive heart failure'" as well as severe organ damage from these conditions.

Kikumura eventually recovered, exhausted his administrative remedies and brought suit in federal court against Osagie, Vail, Sanders, four supervisory officials and the United States of America. Kikumura alleged Bivens claims for deliberate indifference against Osagie, the guards and the supervisory officials. He also asserted eight Federal Tort Claims Act (FTCA) claims against the government for various state-law torts. The district court granted Defendants' motion to dismiss, agreeing that Kikumura had failed to state a valid Eighth Amendment claim, failed to adequately exhaust administrative remedies, and failed to file a certificate of review as required by Colo. Rev. Stat. 13-30-602.

The Tenth Circuit found that Kikumura had adequately exhausted his administrative remedies with respect to Osagie and the guards. It rejected Defendants' argument that the "Court should adopt 'a rule that requires the inmate to include in his grievance the identity, either by name or description, of the alleged wrongdoer and the nature of the wrongdoing.'" Rather, agreeing with Kikumura and the reasoning of Strong v. David, 297 F.3d 646 (7th Cir. 2002) and Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004), the appellate court held "that a grievance satisfies" 42 U.S.C. § 1997e(a)'s exhaustion requirement so long as it provides prison officials with enough information to investigate and address the inmate's complaint internally.

Applying this standard, the Tenth Circuit found that Kikumura adequately exhausted his remedies with respect to Osagie and the guards, but failed to do so with respect to the four supervisory defendants. The appeals court then declined to apply the total exhaustion rule of Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), finding that it "would simply waste judicial resources and create an unnecessary burden on litigants. The total exhaustion rule is not meant to force courts to play 'a game of judicial ping-pong' with inmate lawsuits." Adopting the total exhaustion exception crafted in Rhines v. Weber, 544 U.S. 269 (2005), the court dismissed only Kikumura's unexhausted claim.

The appellate court then reversed the dismissal of Kikumura's deliberate indifference claims against Osagie and the guards, finding that he stated a cognizable claim for relief and that Defendants were not entitled to qualified immunity. It also reversed the dismissal of Kikumura's FTCA claims based on Osagie's alleged professional negligence and outrageous conduct, and the guards' alleged negligent failure to refer or consult and outrageous conduct.

Finally, the Tenth Circuit found that Kikumura raised a non-trivial constitutional challenge to the application of Colorado's certificate of review requirement. A plaintiff alleging professional negligence of a licensed professional must file a certificate declaring that he "has consulted a person who has expertise in the areas of the alleged negligent conduct," and that "the professional who has been consulted ... has concluded that the filing of the claim ... does not lack substantial justification." Colo. Rev. Stat. § 13-20-602.

The appeals court found that the record was insufficient to evaluate the due process argument on appeal. Therefore, the "district court should conduct a more thorough inquiry into the factual and legal bases of ... Kikumura's due process challenge to CRS § 13-20-602. It may also reconsider its denial of ... Kikumura's motion for an extension of time to file a certificate of review in light of the due process concerns implicated by such a denial." See: Kikumura v. Osagie, 461 F.3d 1269 (10th Cir. 2006).

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Related legal case

Kikumura v. Osagie