UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

JOHN SANDIFER,

Plaintiff - Appellant,

v.

LEROY GREEN, JR.; J.B. HOPKINS,Jail Administrator; (FNU) GAMBLE,Jail Physician, Wyandotte CountyDetention Center; PRISON HEALTHSERVICES,

Defendants - Appellees.No. 02-3086

D.C. No. 00-CV-3286-JTM

(D. Kansas)

ORDER AND JUDGMENT(*)

Before EBEL, BALDOCK, andLUCERO, Circuit Judges.

Plaintiff John Sandifer, a Kansas state inmate proceeding pro se, appealsthe district court's order dismissing his complaint filed under 42 U.S.C. § 1983,in which he alleged deliberate indifference to his serious medical needs during hispretrial detention in violation of the Eighth Amendment. He also appeals thedistrict court's denial of various motions. We exercise jurisdiction under 28 U.S.C. § 1291, and reverse and remand for further proceedings.

I

Sandifer was arrested and jailed on May 1, 1999. He was detained at theWyandotte County Detention Center until January 14, 2000, when he wastransferred to the state penitentiary. Sandifer suffers from the AIDS virus andrequires medication to treat his condition. On August 7, 2000, he filed a § 1983complaint in district court, claiming that jail personnel refused to provide himwith the necessary medication and failed to administer his medication correctly. He further alleged that jail personnel disregarded his requests for appropriatemedication and his complaints of pain and other serious symptoms of hiscondition.

Defendants filed motions to dismiss Sandifer's suit on the ground that theyprovided Sandifer with regular and reasonable medical care while in jail. Thedistrict court notified the parties that the motions to dismiss would be treated asmotions for summary judgment. Sandifer did not respond to defendants' motions,but instead filed a motion to stay proceedings temporarily, a motion to file asecond amended complaint, a renewed motion for appointment of counsel, and amotion for a guardian ad litem based on his inability to draft legal documents dueto attention deficit disorder.(1) BecauseSandifer had drafted many legaldocuments, the district court found no excuse for Sandifer's failure to respond todefendants' motions to dismiss. Applying Rule 7.4 of the District of KansasLocal Rules, which states that uncontested motions "ordinarily will be grantedwithout further notice," the district court granted defendants' motions to dismiss. Sandifer's pending motions were denied as moot. We consider Sandifer'sappeal.(2)

II

Sandifer was a pretrial detainee during the time his claims arose. "Underthe Fourteenth Amendment's Due Process Clause, pretrial detainees are entitledto the same degree of protection against denial of medical care as that afforded toconvicted inmates under the Eighth Amendment." Estate of Hocker ex rel.Hocker v. Walsh, 22 F.3d 995, 998 (10th Cir. 1994). Therefore, Sandifer's claimthat he received inadequate medical treatment while he was in jail is evaluatedunder the standard of "deliberate indifference to serious medical needs." Id.(quotation omitted). Because Sandifer filed his appeal pro se, we liberallyconstrue his pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972).

Sandifer argues that the district court erred in granting defendants' motionsto dismiss solely on the basis that Sandifer had not responded to the motions. Werecently held that "a party's failure to file a response to a summary judgmentmotion is not, by itself, a sufficient basis on which to enter judgment against theparty." Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). "The districtcourt must make the additional determination that judgment for the moving partyis appropriate under Rule 56." Id. In the instant case, the district court treateddefendants' motions to dismiss as motions for summary judgment, thus ourholding in Reed is implicated.

As is the case here, the district court in Reed granted the defendant'ssummary judgment motion as uncontested pursuant to Rule 7.4 of the District ofKansas Local Rules. Id. at 1192. We reversed and remanded, holding thatsummary judgment was not available merely because the opposing party did notfile a response. Id. at 1194-95. We concluded that the district court may not grantsummary judgment "without first examining the moving party's submission todetermine if it has met its initial burden of demonstrating that no material issues offact remain for trial and the moving party is entitled to judgment as a matter oflaw." Id. at 1195. If the moving party has not made a sufficient showing, nodefense is required. Id. By failing to respond, however, the nonmoving partywaives his "right to respond or to controvert the facts asserted in the summaryjudgment motion," id., but such waiver does "not relieve the court of its duty tomake the specific determinations required by Fed. R. Civ. P. 56(c)," id. at 1196.

In the case at bar, the district court dismissed the case pursuant to a localrule and did not make the "specific determinations required by Fed. R. Civ. P.56(c)." Id. Accordingly, we reverse the grant of summary judgment and remandthe case for the district court to make the necessary determinations. In makingsuch determinations, the court should consider the entire record, including allpleadings filed below.

III

Sandifer also argues that the district court erred in denying his requests forappointment of counsel. We review for an abuse of discretion the district court'sdenial of appointment of counsel. Rucks v. Boergermann, 57 F.3d 978, 979 (10thCir. 1995). In denying Sandifer's requests for counsel, the district court evaluatedand applied the factors set forth in Rucks, and we conclude that the court did notabuse its discretion. If on remand, Sandifer's claims survive summary judgment,however, the court may want to revisit Sandifer's request because "where themedical questions are complex in a deliberate indifference claim, the legal aspectsbecome more complicated as well." McCarthy v. Weinberg, 753 F.2d 836, 839(10th Cir. 1985) (quotation omitted)(concluding that district court's denial ofcounsel was an abuse of discretion when plaintiff, debilitated by multiplesclerosis, was forced to conduct his trial pro se).

Sandifer also asserts that the district court erred in denying his motion for atemporary stay and his request to file a second amended complaint. Because hewithdrew his request for appointment of a guardian ad litem, we do not address thedenial of that motion. We review the district court's decisions to deny a stay andto deny leave to amend for an abuse of discretion. Ben Ezra, Weinstein, & Co. v.America Online, Inc., 206 F.3d 980, 987 (10th Cir. 2000).

The district court granted Sandifer's first request to amend his complaint. His motion to amend a second time stated that the amendment would "clarify andnarrow adequately the claim and all facts surrounding the claim." (R. Doc. 64 at3.) Because Sandifer did not allege that his second amended complaint would bematerially different from his first, the district court did not abuse its discretion indenying the motion. Cf. Bauchman ex rel. Bauchman v. West High School,132F.3d 542, 559 (10th Cir. 1997) (finding no abuse of discretion in denial of leave toamend where amendment would be futile because there was "no materialdifference between the two complaints"). To the extent Sandifer claims on appealthat he intended to name additional defendants, we do not address issues presentedfor the first time on appeal. Walker v. Mather (In re Walker), 959 F.2d 894, 896(10th Cir. 1992).

Sandifer requested a temporary stay to permit the district court to rule on hismotion for appointment of a guardian ad litem and his request to file a secondamended complaint. Given his subsequent withdrawal of the motion for aguardian ad litem and our determination that the district court did not abuse itsdiscretion in refusing a second amended complaint, we also conclude that the courtdid not abuse its discretion when it denied the motion to stay.

IV

The judgment of the district court is REVERSEDand the case isREMANDED for further proceedings consistent with this order and judgment.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. At the parties' request, the case isunanimously ordered submitted without oralargument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This orderand judgment is not binding precedent, except under the doctrines of law of thecase, res judicata, and collateral estoppel. The court generally disfavors thecitation of orders and judgments; nevertheless, an order and judgment may becited under the terms and conditions of 10th Cir. R. 36.3.

1. Sandifer contends that the district courtfailed to liberally construe his motionsas an answer to defendants' motions to dismiss. He argues that "[w]hile theMotions were not entitled, Answer to Motion to Dismiss, a liberal constructionclearly shows the Appellant used this Motion as a vehicle to address the dismissalmotion." (Appellant's Br. at 13.) Because we conclude below that the districtcourt improperly granted summary judgment in favor of defendants, we do notreach this argument.

2. Sandifer has filed a volume of documentscharacterized as exhibits to hisopening brief on appeal. Defendants have moved to strike the exhibits on theground that the documents were not presented to the district court. Many of themedical records contained in the exhibits volume, however, were submitted to thedistrict court with the Martinez report. The motion to strike is denied as to thosedocuments. The motion is granted as to the remaining documents because we willnot consider evidence that was not before the district court. John Hancock Mut.Life Ins. Co. v. Weisman, 27 F.3d 500, 506 (10th Cir. 1994) (citation omitted).