Spencer v. Garden ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 5, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
STEVE SPENCER,
Plaintiff - Appellee,
v. No. 16-4009
(D.C. No. 2:10-CV-00626-CW)
CHRIS ABBOTT, PA - Physician’s (D. Utah)
Assistant; CRAIG JENSEN, Medical
Technician for UDC; JERRY MILLER,
UDC Custody Officer; RODGER
MACFARLANE, Med Tech,
Defendants - Appellants,
and
RICHARD GARDEN, Director of
Clinical Services Bureau for UDC;
STEVE MECHAM, Nurse; DALE
WHITNEY, Correctional Officer,
Defendants.
ORDER AND JUDGMENT *
Before KELLY and HOLMES, Circuit Judges.**
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
The Honorable Neil Gorsuch heard oral argument in this appeal, but has
since been confirmed as an Associate Justice of the United States Supreme Court; he did
(continued...)
Following a severe stroke in July 2008, a former inmate at Utah State Prison,
Brian Maguire,1 asserted claims under 42 U.S.C. § 1983 against various medical
and non-medical prison staff—including physician’s assistant Chris Abbott,
emergency medical technicians (“EMTs”) Craig Jensen and Rodger MacFarlane,
and a prison guard (occupying the position of Sergeant) who worked on Mr.
Maguire’s cell block, Jerry Miller (collectively, “Appellants”)—for deliberate
indifference to his serious medical needs in violation of the Eighth Amendment and
the Utah Constitution.2
Following limited discovery, Appellants moved for summary judgment on
qualified-immunity grounds, but the district court denied the motion, finding that
**
(...continued)
not participate in the consideration or preparation of this order and judgment. The
practice of this court permits the remaining two panel judges, if in agreement, to act as a
quorum in resolving the appeal. See 28 U.S.C. §46(d); see also United States v. Wiles,
106 F.3d 1516, 1516 n.* (10th Cir. 1997) (noting this court allows remaining panel judges
to act as a quorum to resolve an appeal); Murray v. Nat’l Broad. Co., 35 F.3d 45, 47–48
(2nd Cir. 1994) (remaining two judges of original three-judge panel may decide petition
for rehearing without third judge), cert. denied, 513 U.S. 1082 (1995).
1
Following Mr. Maguire’s death, the district court substituted Steve Spencer,
the personal representative of Mr. Maguire’s estate, as the plaintiff. For the sake of
clarity, we—like the parties and the district court—will continue to refer to Mr. Maguire
as the plaintiff, rather than Mr. Spencer.
2
In addition, Mr. Maguire brought claims against Mr. Abbott’s supervisor,
Dr. Richard Garden, and a prison nurse, Steven Mecham. The district court, however,
found that these individuals were entitled to summary judgment on qualified-immunity
grounds, and Mr. Maguire mounts no challenge to that determination on appeal.
2
the Appellants’ qualified-immunity claims depended on the resolution of disputed
facts. Appellants now appeal, arguing that their actions fall far short of
establishing a violation of a clearly established constitutional right.
For the reasons that follow, we DISMISS Mr. Miller’s appeal for lack of
appellate jurisdiction. Exercising jurisdiction over the remainder of this appeal
under 28 U.S.C. § 1291, we REVERSE the district court’s denial of summary
judgment on qualified-immunity grounds as to Mr. Abbott and the two EMTs, Mr.
Jensen and Mr. MacFarlane, and REMAND with instructions to enter judgment in
their favor.
I
A3
On July 3, 2008, Mr. Abbott (a physician’s assistant) performed an intake
examination of Mr. Maguire before releasing him into the prison population.
During that assessment, Mr. Maguire explained that he had been on a methadone
treatment program for opiate addiction, and he requested that he be placed on a
methadone-tapering regimen. However, Mr. Abbott informed Mr. Maguire that the
prison did not prescribe methadone and, instead, gave him medicine to reduce the
deleterious effects of methadone withdrawal. Mr. Maguire spent the next week in
3
The district court recited the facts in the light most favorable to Mr.
Maguire and Appellants generally accept that recitation, except as explained infra, for
purposes of the pending appeal. We, in turn, track the factual narrative that the district
court recounted.
3
and out of the prison infirmary, with complaints of an array of physiological and
psychological problems.
On July 15, 2008, Mr. Maguire submitted an Inmate Health Request Form,
claiming that he was “losing the[] use” of his “left arm and hand” and that he was
“very worried and suffering mentally and physically.” See Aplts.’ App., Vol. IV, at
446 (Mem. Decision & Order Granting in Part and Den. in Part Defs.’ Mot. for
Summ. J., filed Dec. 15, 2015) (quoting the record). Later that day, a prison guard
escorted him to Mr. Abbott, and informed Mr. Abbott that Mr. Maguire appeared to
be dragging his left leg. In addition, Mr. Maguire himself expressed difficulty with
controlling the left side of his body, including his left arm and extremities. While
massaging Mr. Maguire’s upper body, Mr. Abbott noticed a prominent spasm in his
left trapezius muscle and applied pressure on the associated trigger point.
Following that treatment, Mr. Maguire reported immediate relief. As a result, Mr.
Abbott determined that Mr. Maguire suffered from a muscle spasm and prescribed
a muscle relaxant and physical therapy.
That evening, however, Mr. Maguire’s left arm began seizing, his left leg
became numb, and he began convulsing. As a result, Mr. Maguire yelled for the
other inmates to call “man down,” and a prison guard, Mr. Miller, and EMTs
Jensen and MacFarlane responded to the cell and witnessed Mr. Maguire
convulsing. Id. The three men moved Mr. Maguire to the cell floor, where EMTs
Jensen and MacFarlane checked his vital signs and determined that he had suffered
4
a seizure. Mr. Maguire, however, disputed this diagnosis, because he had never
experienced a seizure, remained lucid throughout the event, and never blacked out.
Nevertheless, EMTs Jensen and MacFarlane maintained their diagnosis and placed
Mr. Maguire’s mattress on the floor to prevent him from falling from his bunk if he
had another seizure. They further told Mr. Maguire that there was nothing else
they could do at that time, but that he should inform prison guards if he
experienced any additional issues and the guards would alert them.
Throughout that night until early the next morning, prison
guards—including, according to Mr. Maguire, Mr. Miller—passed by Mr.
Maguire’s cell to perform hourly inmate counts.4 During each of these hourly
counts, Mr. Maguire claims that he pleaded for assistance from the passing prison
guards, but submits that each plea went unanswered. On the following
morning—July 16, 2008—prison guards found that Mr. Maguire had urinated in his
jumpsuit during the night, having been unable to get himself off of the floor. As a
result, prison guards transferred him to the University of Utah Medical Center,
where doctors determined that he had suffered a severe stroke.
B
In the aftermath of this diagnosis, Mr. Maguire filed the underlying civil-
4
Mr. Miller argues that the district court’s factual recitation on this point
“blatantly contradicted” the underlying record. Aplts.’ Opening Br. at 22–24.
Nevertheless, we reject that notion for the reasons discussed infra.
5
rights complaint under 42 U.S.C. § 1983, asserting constitutional claims against
Mr. Abbott, EMTs Jensen and MacFarlane, and Mr. Miller, among other
individuals. Following limited discovery, Appellants moved for summary
judgment on the grounds of qualified immunity. On December 15, 2015, however,
the district court denied summary judgment to them.5
Addressing the existence of a constitutional violation—the first prong of the
qualified-immunity inquiry—the district court concluded that the evidence created
a sufficient factual inference of deliberate indifference relative to Mr. Abbott,
because he diagnosed Mr. Maguire’s condition as “a simple muscle spasm,” despite
the evidence that Mr. Maguire had “los[t] control o[f] the entire left side of his
body.” Aplts.’ App., Vol. IV, at 452. Given those facts, the district court
determined that Mr. Abbott’s “contrary diagnosis and treatment” could be deemed
“patently unreasonable,” because a reasonable jury could conclude that the “loss of
control” constituted a symptom “so obviously inconsistent with a simple muscle
spasm in [the] shoulder . . . and so obviously consistent with the symptoms of a
stroke.” Id. With respect to EMTs Jensen and MacFarlane, the district court found
5
The district court did enter summary judgment, however, in favor of two
defendants, Dr. Richard Garden and Steven Meacham, see Aplts.’ App., Vol. IV, at
449–50, 453–54 (finding no evidence of deliberate indifference relative to these
defendants), and in favor of Mr. Abbott, solely insofar as Mr. Maguire asserted a claim
“against Abbott for [his] involvement [in] the decision to discontinue Maguire’s
methadone prescription,” id. at 451 n.7. The propriety of these rulings is not at issue
here.
6
the record similarly sufficient to support an inference of deliberate indifference
because the two men determined that Mr. Maguire had experienced a seizure
(despite Mr. Maguire’s contrary assertions) and, yet, failed to refer him to a
medical specialist, opting instead to “simply place[] Maguire’s mattress on the cell
floor.” Id. at 458–59. Finally, the district court found sufficient evidence that Mr.
Miller acted with deliberate indifference, because the evidence suggested that he
knew that “Maguire had suffered (at the very least) a seizure” and of his
subsequent requests for medical assistance, but failed to notify medical
professionals. Id. at 462.
Turning then to the question of clearly established law—the second prong of
the qualified-immunity inquiry—the district court found it “clearly established” (1)
that when Mr. Abbott confronted “symptoms obviously indicative of a stroke and
inconsistent with a mere shoulder muscle spasm, the decision to merely treat the
muscle spasm would evidence deliberate indifference to a serious medical
condition,” id. at 464; (2) that when EMTs Jensen and MacFarlane confronted
“what they believed to be a seizure, they had an obligation to provide Maguire
meaningful treatment or at least access to an appropriate health care provider,” id.;
and (3) that, when Mr. Miller confronted Mr. Maguire’s requests for “further
medical assistance”—“with the understanding that Maguire had suffered a
seizure”—“he had the obligation to provide Maguire access to necessary medical
personnel” and “fair notice that failing to provide such access would be sufficient
7
to show a constitutional violation,” id.
Accordingly, the district court denied summary judgment on the basis of
qualified immunity to Mr. Abbott, EMTs Jensen and MacFarlane, and Mr. Miller.
This appeal followed.
II
Appellants’ appeal is interlocutory and, before reaching its merits, we must
address whether we properly have jurisdiction. See Franklin Sav. Corp. v. United
States (In re Franklin Sav. Corp.), 385 F.3d 1279, 1286 (10th Cir. 2004)
(“Jurisdictional issues must be addressed first and, if they are resolved against
jurisdiction, the case is at an end.”).
A
Federal appellate courts typically lack “jurisdiction to review denials of
summary judgment motions,” Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015)
(quoting Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1150 (10th Cir. 2006)), but
we may review “[t]he denial of qualified immunity to a public official . . . to the
extent [the denial] involves abstract issues of law,” id. (first alteration in original)
(quoting Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013)); see also
Henderson v. Glanz, 813 F.3d 938, 947 (10th Cir. 2015). Specifically, we have
interlocutory “jurisdiction ‘to review “(1) whether the facts that the district court
ruled a reasonable jury could find would suffice to show a legal violation, or (2)
whether that law was clearly established at the time of the alleged violation.”’”
8
Cox, 800 F.3d at 1242 (quoting Roosevelt–Hennix v. Prickett, 717 F.3d 751, 753
(10th Cir. 2013)).
Applying that analytical framework, we have “no interlocutory jurisdiction
to review ‘whether or not the pretrial record sets forth “genuine” issues of fact for
trial,’” Henderson, 813 F.3d at 948 (quoting Johnson v. Jones, 515 U.S. 304, 320
(1995)), because that inquiry would require “second-guessing the district court’s
determinations of evidence sufficiency,” id. (quoting Medina v. Cram, 252 F.3d
1124, 1130 (10th Cir. 2001)); see also Cox, 800 F.3d at 1242 (explaining that
“‘whether or not the pretrial record sets forth a “genuine” issue of fact for trial’ is
not an abstract legal question that we may review” (quoting Johnson, 515 U.S. at
320)).
Rather, we may review “the legal question of whether a defendant’s conduct,
as alleged by the plaintiff, violates clearly established law.” Cox, 800 F.3d at 1242
(emphasis added) (quoting Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179,
1186 (10th Cir. 2001)). Hence, our jurisdiction becomes “clear” when “the
defendant does not dispute the facts alleged by the plaintiff” or concedes the
version of events most favorable to the plaintiff, and raises instead only legal
challenges to the denial of qualified immunity based on those facts. Id. (quoting
Farmer v. Perrill, 288 F.3d 1254, 1258 n.4 (10th Cir. 2002)).
Where a defendant challenges the district court’s factual findings, “we may
assess the case based on our own de novo view of which facts a reasonable jury
9
could accept as true,” if the record “blatantly contradict[s]” the version of events
that the district court has found, viewing the evidence in the light most favorable to
the plaintiff. Henderson, 813 F.3d at 948 (quoting Lewis v. Tripp, 604 F.3d 1221,
1225–26 (10th Cir. 2010)); see York v. City of Las Cruces, 523 F.3d 1205, 1210
(10th Cir. 2008) (noting that “a court may not adopt a ‘blatantly contradicted’
version of the facts for summary judgment purposes” (quoting Scott v. Harris, 550
U.S. 372, 380 (2007))). However, the blatantly-contradicted exception imposes, by
its very terms, a heavy burden, requiring that the district court’s findings
“constitute ‘visible fiction.’” Lynch v. Barrett, 703 F.3d 1153, 1160 n.2 (10th Cir.
2013) (quoting Scott, 550 U.S. at 380–81)); see Roosevelt-Hennix, 717 F.3d at 759
(explaining the “limited nature” of the blatantly-contradicted exception); Green v.
Post, 574 F.3d 1294, 1296 n.4 (10th Cir. 2009) (declining to accept the district
court’s factual recitation that the traffic light was red, when “[t]he videotape of the
collision, obtained from the camera on [the officer-defendant’s] vehicle, shows that
the light was yellow”); see also Cordero v. Froats, 613 F. App’x 768, 769 (10th
Cir. 2015) (unpublished) (noting that the exception covers only the “rare” and
“exceptional” case).
B
1
In light of these principles, we conclude that Mr. Abbott, and EMTs Jensen
and MacFarlane have presented appellate arguments over which we have
10
jurisdiction, because they accept Mr. Maguire’s version of the facts relating to
them—more specifically, the facts as the district court recited them—for purposes
of this appeal, and argue their legal entitlement to qualified immunity under that
factual narrative.6 See Cox, 800 F.3d at 1243–44 (finding appellate jurisdiction
where the defendant “accepted the truth of [the plaintiff’s] version of the facts for
purposes of an appeal,” and requested that we address “the legal issues presented
by [those] agreed-upon set of facts”).
6
The district court framed its summary-judgment conclusions in terms of
findings regarding what a “reasonable jury” could draw from the factual record and with
respect to the existence of genuinely disputed issues of material fact. Aplts.’ App., Vol.
IV, at 452–53 (finding, with respect to Mr. Abbott, that “a reasonable jury could
conclude” that he acted with deliberate indifference and that the record contained
“genuine dispute[s] of fact” relative to deliberate indifference); id. at 458–60 (finding,
with respect to EMTs Jensen and MacFarlane, that “a reasonable jury could conclude”
that they acted with deliberate indifference and that the record contained “genuine
disputes” relative to deliberate indifference); id. at 462–63 (finding, with respect to Mr.
Miller, that “a reasonable jury could conclude” that he acted with deliberate indifference
and that the record contained “genuine disputes of fact” relative to deliberate
indifference). We are constrained to observe that, insofar as the district court’s analysis
focused on the existence of genuine disputes of material fact—it is not congruent with
“our established qualified-immunity approach”—the “principal purpose” of which is “to
determine whether plaintiff’s factual allegations are sufficiently grounded in the record
such that they may permissibly comprise the universe of facts that will serve as the
foundation for answering the legal question before the court.” Cox, 800 F.3d at 1243
(quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1326 (10th Cir. 2009) (Holmes, J.,
concurring)). Nevertheless, because Appellants (with the exception of Mr. Miller) have
accepted the truth of Mr. Maguire’s version of the facts for purposes of this appeal—a
version of the facts that the district court embraced—we may reach the legal questions of
qualified immunity based on that version of the facts, despite the noted deficiency in the
district court’s methodology. See Cox, 800 F.3d at 1243 (reaching the legal issues in the
context of a qualified-immunity, summary-judgment inquiry despite the district court’s
deficient “fact-based” “mode of analysis”).
11
2
An inquiry into our jurisdiction over Mr. Miller’s appeal cannot be resolved
with the same ease. That is because Mr. Miller contends that the district court’s
factual recitation as to him is “blatantly contradicted” by the summary-judgment
record on two grounds. Aplts.’ Opening Br. at 22–24; accord Aplts.’ Reply Br. at
4–7, 28. First, he claims that, contrary to the district court’s reading of the record,
Mr. Maguire actually “d[id] not allege that Sgt. Miller was the officer who
performed the [night] rounds.” Aplts.’ Reply Br. at 4 (quoting the record).
Second, he submits that the evidence the district court used to buttress its “version
of events neither mentions nor identifies Miller as an officer who performed the
hourly counts.” Id. at 5; accord Aplts.’ Opening Br. at 23–24. Our review of the
evidence, however, reveals no blatant contradiction of the district court’s
assessment regarding these matters.
Tracing a factual narrative in Mr. Maguire’s favor, the district court stated
that, “prison guards—including, according to Maguire, defendant Miller— passed
by Maguire’s cell to perform hourly counts” following the “man down” incident,
and explained that Mr. Maguire pleaded with prison guards “[d]uring each of these
counts . . . to summon the EMTs because he was experiencing twitching and
cramping throughout the left side of his body.” Aplts.’ App., Vol. IV, at 446–447.
Based on this version of events, the district court found “sufficient evidence . . . for
a reasonable jury to conclude [that] Miller personally performed at least one of the
12
nightly counts and . . . had actual knowledge” of Mr. Maguire’s various requests
for medical assistance. Id. at 461. In reaching this conclusion, the district court
noted that Mr. Maguire did not point “to this evidence in his briefing,” and instead
took the “litigation position that Miller [could] be liable even if he did not
personally perform the [hourly] counts.” Id. at 461 n.10 (emphasis added).
Nevertheless, the district court emphasized that it must “consider the record
evidence” at the summary-judgment phase, and need not constrain its inquiry to
Mr. Maguire’s “legal arguments.” Id.
The essential thrust of Mr. Miller’s first challenge relates to the district
court’s failure to take into account that Mr. Maguire did not contest a purported
statement of undisputed fact relating to Mr. Miller’s lack of participation in the
hourly counts that Appellants averred in their summary-judgment briefing.
However, in acknowledging a certain group of factual statements in Appellants’
briefing to be “undisputed,” Mr. Maguire did not explicitly address Appellants’
statement regarding Mr. Miller’s lack of participation in the counts. Aplts.’ App.,
Vol. III, at 243 (Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J, filed May 15,
2015). As such, Mr. Maguire’s response hardly resembles the sort of intentional
factual stipulation—or admission—that our precedent prohibits district courts from
disregarding. See Stubblefield v. Johnson-Fagg, Inc., 379 F.2d 270, 272 (10th Cir.
1967) (explaining that the “trial court may not disregard facts stipulated to by the
parties or require evidence to support them” (quoting United States v. Sommers,
13
351 F.2d 354, 357 (10th Cir. 1965))). Perhaps more importantly, Mr. Maguire’s
substantive summary-judgment arguments squarely presented his factual position
that Mr. Miller did indeed perform the hourly counts. See Aplts.’ App., Vol. III, at
262 (arguing that Mr. Miller either “failed to follow up on Mr. Maguire’s condition
by avoiding checking in on [him] or he did check in but failed to obtain help when
requested”); see also Aplee.’s App., at 51 (Tr. of Hr’g on Mot. Summ J., dated Oct.
22, 2015) (arguing that the evidence impliedly creates an inference that Mr. Miller
performed hourly counts).
Aside from all that, the district court clearly had the discretion, in any event,
to inquire into the factual record in areas that the parties left underdeveloped. See
FED. R. CIV. P. 56(c)(3) (“The court need only consider the cited materials, but may
consider other materials in the record.” (emphasis added)); Green v. Northport,
599 F. App’x 894, 895 (11th Cir. 2015) (unpublished) (“The district court could
consider the record as a whole to determine the undisputed facts on summary
judgment.”); Ayazi v. United Fed’n of Teachers Local 2, 487 F. App’x 680, 681 (2d
Cir. 2012) (unpublished) (“[W]hen assessing a summary judgment motion, a
District Court ‘may consider other materials in the record.’ Thus, there was no
error in the magistrate judge considering and relying on evidence not specifically
cited by the [summary-judgment movant] . . . .” (quoting FED. R. CIV. P. 56(c)(3)).
Turning then to Mr. Miller’s second challenge, he essentially posits that the
district court mischaracterized record evidence in concluding that a “reasonable
14
jury [could] conclude [that] Miller personally performed at least one of the nightly
counts.” Aplts.’ App., Vol. IV, at 461. On this point, the district court explained
that,
[i]n Maguire’s sworn affidavit, he stated that “Officer 5,”
responded to the “man down” call and helped the EMTs place
Maguire’s mattress on the floor. The record shows, and Miller
concedes, that he was one of the officers who responded to
Maguire’s cell during the “man down” call. Maguire’s affidavit
further states that the EMTs instructed him to alert “Officer 5” if
he had any other problems throughout the night. Maguire later
clarified that Miller was the officer whom the EMTs indicated he
should alert if he had any further problems during the night.
Therefore, a reasonable jury could infer that “Officer 5” in
Maguire’s affidavit refers to Miller. And importantly, Maguire
stated in his affidavit that during “[e]very hourly count, at some
of which Maguire recognized Officer 5[,] Maguire asked the
counting officer to please call medical.”
Id. at 461–62 (first and second emphases added) (citations omitted). With these
facts in mind, the district court concluded that “a reasonable jury could infer” that
Mr. Miller performed “some of the hourly counts and heard Maguire’s pleas for
help.” Id. at 462.
In challenging these factual observations and inferences, Mr. Miller claims
only that “the deposition testimony cited by the district court” makes no mention of
Mr. Miller, and identifies by name instead only (non-party) Officer Mau. Aplts.’
Opening Br. at 23–24; accord Aplts.’ Reply Br. at 4–5. Mr. Miller’s position,
however, brushes aside the fact that, in his affidavit, Mr. Maguire specifically
averred that he “recognized Officer 5” as one of the officers who performed “some”
15
of the hourly counts. Aplts.’ App., Vol. IV, at 332 (Aff. of Brian Maguire, dated
Aug. 23, 2010). And it is undisputed that Mr. Miller is the only prison guard who
responded to the “man down” call. Compare id. at 331 (explaining that, during the
“man down” incident, “Officer 5 moved the mattress to the floor and put Maguire
on [the] mattress”), and Aplee.’s Br. at xi (stating that “three” individuals
responded to the “man down” call: Mr. Miller, and EMTs Jensen and MacFarlane),
with Aplts.’ App., Vol. II, at 194 (recounting, as part of Appellants’ summary-
judgment submissions, Mr. Miller’s role during the “man down” call); Aplts.’
Opening Br. at 9 (“Miller responded to the man down call and called for medical
assistance”).
As we see it, the underlying evidence created the reasonable inference that
Mr. Miller responded to the “man down” call and performed some of the hourly
counts that evening. The fact that Mr. Maguire singled out Officer Mau in his
deposition with respect to one of the many counts—that is, the 8:30 AM hourly
count—does not undercut the reasonableness of this inference, especially given the
equivocal, tentative nature of Mr. Maguire’s identification of Officer Mau. See
Aplts.’ App., Vol. IV, at 378 (Dep. of Brian Maguire, dated Jan. 15, 2015) (“At the
8:30 count when the count come [sic] through, the officer that counted, and I’m not
sure, I’m not sure who that was, but I think it might have been Mau, officer Mau.
Maybe, I’m not positive about that. But anyway, he told me that I needed to stand
up for count and I told him ‘I can’t stand up, I can’t even sit up. I can’t get up to
16
do it.’”).
Based on this evidence, the district court drew reasonable and supported
inferences in Mr. Maguire’s favor, and “we must accept ‘as true’ the district court’s
determination ‘that a reasonable jury could find certain specified facts in favor of
the plaintiff.’” Pahls v. Thomas, 718 F.3d 1210, 1217 (10th Cir. 2013) (quoting
Lewis, 604 F.3d at 1225). In short, the district court’s findings regarding Mr.
Miller’s participation in at least some of the hourly counts is not blatantly
contradicted by the record. Indeed, even if we were to conclude that the evidence
that Mr. Miller relies on demonstrates some contradiction with the district court’s
relevant factual recitation, that would not permit Mr. Miller to carry his burden of
demonstrating that this recitation is a “visible fiction.”7 Lynch, 703 F.3d at 1160
n.2 (quoting Scott, 550 U.S. at 380–81). Therefore, we lack jurisdiction over Mr.
Miller’s interlocutory appeal because it “would [impermissibly] require second-
guessing the district court’s determinations of evidence sufficiency.” Henderson,
7
Nor do we find this case to be analogous to the Supreme Court’s Scott
decision—which is the subject of the parties’ dueling contentions. There, the “videotape
quite clearly contradict[ed] the version of the story told by [the plaintiff] and adopted by
the [court].” 550 U.S. at 378–80 (describing the video as “a Hollywood-style car chase of
the most frightening sort, placing police officers and innocent bystanders alike at great
risk of serious injury,” while the plaintiff’s version of events stated that the car chase
involved “little, if any, actual threat to pedestrians or other motorists, as the roads were
mostly empty and [the plaintiff] remained in control of [the] vehicle” (quoting Harris v.
Coweta Cty., Ga., 433 F.3d 807, 815 (11th Cir. 2005)). Here, the underlying record
supports the version of events proffered by Mr. Maguire and adopted by the district court,
as explicated supra.
17
813 F.3d at 949–50 (quoting Medina, 252 F.3d at 1130) (dismissing an
interlocutory appeal for lack of jurisdiction, because the record did not blatantly
contradict the district court’s factual determinations).
For these reasons, we DISMISS Mr. Miller’s appeal for lack of appellate
jurisdiction.
III
Turning to the merits, we address the substantive assertions of the qualified-
immunity defense of Mr. Abbott, and EMTs Jensen and MacFarlane.
A
“The defense of qualified immunity ‘protects governmental officials from
liability for civil damages insofar as their own conduct does not violate “clearly
established statutory or constitutional rights of which a reasonable person would
have known.”’” A.M. v. Holmes, 830 F.3d 1123, 1134 (10th Cir. 2016) (quoting
Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010)). Qualified immunity “not
only protects public employees from liability, [but] also protects them from the
burdens of litigation.” Id. (alteration in original) (quoting Allstate Sweeping, LLC
v. Black, 706 F.3d 1261, 1266 (10th Cir. 2013)).
“We review the denial of a summary judgment motion raising qualified
immunity questions de novo.” Medina, 252 F.3d at 1128; accord Apodaca v.
Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017). When a defendant raises the
qualified-immunity defense, the plaintiff bears the burden of demonstrating “(1)
18
that the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the challenged conduct.” Quinn v. Young,
780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731,
735 (2011)). We address the two prongs of qualified immunity in either order; “if
the plaintiff fails to establish either prong of the two-pronged qualified-immunity
standard, the defendant prevails on the defense.” Id.; see Medina, 252 F.3d 1128
(“In short, although we will review the evidence in the light most favorable to the
nonmoving party, the record must clearly demonstrate the plaintiff has satisfied his
heavy two-part burden; otherwise, the defendants are entitled to qualified
immunity.” (citation omitted)).
B
On appeal, Mr. Abbott challenges only the first prong of the district court’s
qualified-immunity determination, while EMTs Jensen and MacFarlane raise issues
with respect to both aspects of the district court’s qualified-immunity assessment.
More specifically, Mr. Abbott asserts that Mr. Maguire’s allegations demonstrate at
most that he committed “an error in medical judgment” rising “no higher than
negligence or [inadvertent] misdiagnosis”—not the deliberate indifference required
for purposes of an Eighth Amendment claim. Aplts.’ Opening Br. at 29–37; accord
Aplts.’ Reply Br. at 10–16. Similarly, EMTs Jensen and MacFarlane take the
position that their diagnosis and treatment amounted to no more than “negligence”
or “gross negligence”; they also submit that no clearly established law revealed that
19
their actions rose to the level of a constitutional deprivation. Aplts.’ Opening Br.
at 38–51; accord Aplts.’ Reply Br. at 16–28.
Mr. Maguire argues, by contrast, that the relevant record demonstrates
deliberate indifference on the part of Mr. Abbott, because he dismissed “Mr.
Maguire’s obvious signs of a stroke as mere muscle spasms,” by ignoring plainly-
presented symptoms and, generally, provided “patently unreasonable” treatment.
Aplee.’s Br. at 18–21. Relatedly, Mr. Maguire takes the view that the “evidence
establishing Jensen and Mac[F]arlane’s deliberate indifference abounds,” id. at 22,
because in the face of a purported seizure, EMTs Jensen and MacFarlane simply
“put Mr. Maguire onto the floor, closed the door, and left him there” without
determining the cause of the purported “seizure,” id. at 23, and without referring
him “to desperately-needed medical care,” id. at 25.
We elect to focus solely on the first prong of the qualified-immunity
standard—that is, on whether Mr. Maguire has demonstrated that Mr. Abbott and
EMTs Jensen and MacFarlane violated his constitutional rights, specifically, his
Eighth Amendment rights. See, e.g., Pearson v. Callahan, 555 U.S. 223, 236
(2009) (“The judges of the district courts and the courts of appeals should be
permitted to exercise their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.”). We conclude that Mr. Maguire has
not carried his summary-judgment burden as to any of these officials.
20
Consequently, we reverse the district court’s denial of summary judgment to Mr.
Abbott, and EMTs Jensen and MacFarlane, and remand with instructions to enter
judgment in their favor. See, e.g., Cortez v. McCauley, 478 F.3d 1108, 1129 (10th
Cir. 2007) (en banc) (“Even taking Plaintiffs’ allegations as true and viewing the
evidence in the light most favorable to Plaintiffs, Plaintiffs have not established
that Defendants’ use of force against Rick Cortez violated his Fourth and
Fourteenth Amendment right to be free from the use of excessive force. In other
words, the Defendants are entitled to qualified immunity on Rick Cortez’s
excessive force claim because no constitutional violation occurred.”); Clark v.
Bowcutt, 675 F. App’x 799, 805 (10th Cir. 2017) (unpublished) (“We elect to focus
on the first prong—viz., whether the defendant committed a constitutional
violation—and it proves dispositive.”).
C
1
The Eighth Amendment, which applies to the States through the Due Process
Clause of the Fourteenth Amendment, prohibits deliberate indifference to an
inmate’s serious medical needs, see Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Mitchell v. Maynard, 80 F.3d 1433, 1440 (10th Cir. 1996), and “involves both an
objective and a subjective component.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.
2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)). In this
case, Mr. Abbott and EMTs Jensen and MacFarlane concede that the objective
21
component is satisfied, and so we turn our attention directly to the subjective
aspect of the deliberate-indifference standard. See Aplts.’ Opening Br. at 28
(“Defendants conceded below that the objective prong is satisfied.”).
In order to satisfy the subjective prong, the prison official must have a
sufficiently culpable state of mind—meaning that the plaintiff must establish that
the prison official “kn[e]w of and disregard[ed] an excessive risk to inmate health
or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Mata, 427 F.3d
at 751 (citing Farmer for the same premise). Stated another way, the subjective
component requires proof that a defendant official was both “aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists”
and that the official actually “dr[ew] the inference.” Farmer, 511 U.S. at 837.
Accordingly, “allegations of ‘inadvertent failure to provide adequate medical care’
or of a ‘negligent . . . diagnos[is]’ simply fail to establish the requisite culpable
state of mind.” Wilson v. Seiter, 501 U.S. 294, 299 (1991) (citation omitted);
accord Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (explaining that a
medical provider’s “negligent diagnosis or treatment of a medical condition do[es]
not constitute a medical wrong under the Eighth Amendment” (alteration in
original) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980))).
Similarly, “[a] prison medical professional who serves ‘solely . . . as a gatekeeper
for other medical personnel capable of treating the condition’ may be held liable
under the deliberate indifference standard [only] if [the professional] ‘delays or
22
refuses to fulfill that gatekeeper role.’” Mata, 427 F.3d at 751 (quoting Sealock,
218 F.3d at 1211).
Nevertheless, “[d]eliberate indifference does not require a finding of express
intent to harm,” Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir. 1996), nor
must a plaintiff “show that a prison official acted or failed to act believing that
harm actually would befall an inmate,” Mata, 427 F.3d at 752 (quoting Farmer,
511 U.S. at 842). Rather, the plaintiff must show that “the official acted or failed
to act despite his knowledge of a substantial risk of serious harm.” Id. (quoting
Farmer, 511 U.S. at 842). Thus, “[a]n official ‘would not escape liability if the
evidence showed that he merely refused to verify underlying facts that he strongly
suspected to be true, or declined to confirm inferences of risk that he strongly
suspected to exist.’” Id. (quoting Farmer, 511 U.S. at 843 n.8).
2
Applying the foregoing principles here, we conclude that Mr. Maguire’s
allegations fail to demonstrate that Mr. Abbott acted with deliberate indifference to
Mr. Maguire’s serious medical needs. Rather, Mr. Maguire’s version of events
demonstrates, at most, that Mr. Abbott exercised reasonable medical judgment, but
ultimately misdiagnosed Mr. Maguire’s condition.
Specifically, Mr. Maguire expressed problems controlling the left side of his
body (including his left arm and hand), and the prison guard that escorted Mr.
Maguire for treatment informed Mr. Abbott that Mr. Maguire appeared to be
23
dragging his left leg. Based on that information, Mr. Abbott proceeded to massage
the upper portion of Mr. Maguire’s body, and immediately noticed “a prominent
spasm in [his] left trazepius muscle.” Aplts.’ App., Vol. IV, at 446. Mr. Abbott
consequently applied pressure to the associated trigger point, and Mr. Maguire
reported “some immediate relief.” Id. Given the palliative effect of the targeted
massaging, Mr. Abbott determined—as a matter of medical judgment—that Mr.
Maguire’s symptoms related to a muscle spasm, and he prescribed a muscle
relaxant and physical therapy for Mr. Maguire. See id.
Citing Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001), Blackmon v.
Sutton, 734 F.3d 1237 (10th Cir. 2013), and Estate of Booker v. Gomez, 745 F.3d
405 (10th Cir. 2014), Mr. Maguire, however, advances the view—as did the district
court—that Mr. Abbott consciously disregarded his serious medical needs, by
approaching “an obvious risk with patently unreasonable treatment.” Aplee’s Br. at
16. But we see things differently: Mr. Abbott’s reasoned diagnosis and treatment
hardly resembles the obviously unreasonable treatment scenarios that were
sufficient to satisfy the subjective inquiry in Oxendine, Blackmon, and Gomez.
In Oxendine, for example, the prison doctor repaired a severed finger but
failed to diagnose the onset of gangrene. See 241 F.3d at 1277–78. In finding the
allegations sufficient to satisfy the subjective component of the deliberate-
indifference inquiry (on a dismissal motion), we emphasized (1) that the inmate
repeatedly claimed to be suffering considerable pain and informed the doctor that
24
“his finger ‘had turned jet black’” and that the reattached portion of his finger had
begun to fall off; and (2) that the doctor himself recognized and noted the
“necrosis” on the reattached finger, but took no action. Id. at 1278–79. Given the
patent seriousness of the plaintiff’s injury—upon visual inspection—which the
plaintiff repeatedly validated by his complaints of pain, we reasoned that the
situation involved more than a “mere disagreement between the parties” regarding
the proper course of medical treatment, id. at 1277 n.7, and concluded that the
allegations stated a claim for deliberate difference to serious medical needs, id. at
1279. Put another way, we effectively concluded that under these circumstances a
reasonable jury could find that the doctor was both “aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists” and that the
doctor actually “dr[ew] the inference.” Farmer, 511 U.S. at 837.
Similarly, in Blackmon, an eleven-year-old child at a juvenile detention
facility exhibited mental health issues, and the mental health unit supervisor and a
counselor knew of his “obvious” mental health issues, knew that his incarceration
exacerbated those problems, and knew that their response to his mental health
issues—strapping him in a restraint chair—offered no help. 734 F.3d at 1244–45.
Nevertheless, the officials denied him, or caused delay in his receipt of, access to
mental health treatment, despite his known and “serious suicidal and self-harm
problems.” Id. at 1245. In light of these striking circumstances, we determined
that the record was sufficient “to suggest conscious disregard of a substantial risk
25
of serious harm,” because the officials “failed to provide him with access to
obviously needed medical care for what was clearly a life-threatening condition.”
Id. at 1245–46.
Finally, in Gomez, officers put an arrestee in a “carotid restraint”—a
technique that “compresses the carotid arteries and the supply of oxygenated blood
to the brain” and renders “a person unconscious within 10–20 seconds.” 745 F.3d
at 413. The officers’ training materials warned that “[b]rain damage or death
could occur” if used “for more than one minute.” Id. (alteration in original).
Nevertheless, officers applied the technique to a prisoner for nearly three minutes
and then turned to other “pain compliance technique[s],” all while the prisoner
remained “motionless on the floor.” Id. at 413–15. The officers then carried his
“limp and unconscious” body to a holding cell, id. at 431, and “placed him face
down on the cell floor” without checking his vital signs or attempting to determine
whether he needed medical attention, id. at 415. When the nurse finally
arrived—approximately five minutes after the officers’ use of force—attempts to
resuscitate the prisoner proved unsuccessful, and an autopsy reported the cause of
death as “cardiorespiratory arrest during physical restraint.” Id. at 416.
In affirming the denial of qualified immunity, we reasoned in Gomez that the
officers “had a front-row seat to [the prisoner’s] rapid deterioration” and knew the
“substantial risk” their pain-compliance techniques posed to the prisoner’s “health
and safety,” yet delayed for what—under the particular circumstances
26
there—amounted to a substantial amount of time before providing him with
obviously necessary medical attention. Id. at 431–33. Accordingly, we concluded
that the factfinder could “conclude that [the officers] subjectively knew of the
substantial risk of harm by circumstantial evidence” or by the obviousness of the
risk. Id. at 433 (quoting Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009)).
In each of these cases—Oxendine, Blackmon, and Gomez—we concluded
that a reasonable jury could find that the defendant official possessed a culpable
state of mind primarily because the “facts from which the inference could be drawn
that a substantial risk of serious harm exists,” Farmer, 511 U.S. at 837, were
remarkably obvious and the defendant had, in the words of Gomez, a “front-row
seat” to observe them, 745 F.3d at 431. While Mr. Abbott did directly interact with
Mr. Maguire, the circumstances here are otherwise markedly different.
Though the parties do not dispute that Mr. Maguire had a “sufficiently
serious” medical need, Farmer, 511 U.S. at 834 (i.e., the objective component of
the deliberate-indifference standard), the facts from which Mr. Abbott could have
inferred the existence of that medical need—and, consequently, known the
“substantial risk” that “serious harm” would befall Mr. Maguire, if that need were
not addressed, id. at 837—were not obvious, when viewed through the prism of
Oxendine, Blackmon, and Gomez. Notably, Mr. Maguire visually presented to Mr.
Abbott in part with a prominent spasm in his left trapezius muscle. Rather than his
condition continuing to decline before Mr. Abbott’s eyes—see Oxendine, 241 F.3d
27
at 1278 (noting that the inmate repeatedly claimed to be suffering considerable pain
and informed the doctor that the reattached portion of his finger had begun to fall
off); Gomez, 745 F.3d at 431 (noting that officers “had a front-row seat to [the
plaintiff’s] rapid deterioration”); Blackmon, 734 F.3d at 1245 (observing that the
defendants “were aware those [mental health] problems [of the plaintiff] grew
worse during his stay”)—Mr. Maguire experienced immediate relief from Mr.
Abbott’s physical application of pressure to the associated trigger point. Given this
positive clinical response, Mr. Abbott reasoned that muscle spasms were the root
cause of Mr. Maguire’s concerns regarding mobility on the left side of his body.
And, unlike the defendants in Oxendine, Blackmon, and Gomez, Mr. Abbott did not
ignore the medical need that he perceived; rather, he affirmatively acted to address
it by prescribing a muscle relaxant and physical therapy.
To be sure, in light of Mr. Maguire’s subsequent stroke, a plausible argument
could be made that Mr. Abbott’s conclusion that Mr. Maguire suffered from muscle
spasms was off-base; in other words, that he misdiagnosed Mr. Maguire. But the
fact that Mr. Abbott’s reasoning may have amounted to negligence is immaterial
for purposes of the subjective component of the deliberate-indifference standard.
See, e.g., Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state a valid claim
of medical mistreatment under the Eighth Amendment. Medical malpractice does
not become a constitutional violation merely because the victim is a prisoner.”);
28
Self v. Crum, 439 F.3d 1227, 1234 (10th Cir. 2006) (“[M]isdiagnosis, even if rising
to the level of medical malpractice, is simply insufficient under our case law to
satisfy the subjective component of a deliberate indifference claim.”); see also
Verdecia v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (“Even if the conclusion
[the prison official] drew from his investigation was erroneous or negligent, it does
not rise to the level of an Eighth Amendment violation based on deliberate
indifference. Deliberate indifference requires more than a showing of simple or
heightened negligence.”); Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001)
(rejecting the plaintiff’s subjective-component argument by noting that her
“complaints suggest negligence—not a wanton and obdurate disregard for inmate
health and safety”).
More specifically, our caselaw firmly establishes that a doctor’s exercise of
“considered medical judgment” fails to fulfill the subjective component, “absent an
extraordinary degree of neglect”—viz., where a prison physician “responds to an
obvious risk” with “patently unreasonable” treatment. Self, 439 F.3d at 1232
(emphasis added). “[I]n the circumstances of a missed diagnosis or delayed
referral,” we have only found a sufficiently extraordinary degree of neglect under
three circumstances: first, where a doctor “recognizes an inability to treat the
patient due to the seriousness of the condition and his corresponding lack of
expertise” but refuses or unnecessarily delays a referral; second, where a doctor
fails to treat a medical condition “so obvious that even a layman would recognize
29
the condition”; and finally, where a doctor entirely denies care “although presented
with recognizable symptoms which potentially create a medical emergency.” Id.
Mr. Maguire’s argument is essentially predicated on the second
circumstance. He contends that the partial loss of motor control constitutes an
“obvious sign[] of a stroke.” Aplee.’s Br. at 18. Importantly, however, Mr.
Maguire mounts no attack on the notion that the loss of motor control also may be
suggestive of a muscle spasm, nor does he dispute that Mr. Abbott’s pressure-point
treatment provided him with immediate relief. Rather, Mr. Maguire advances the
view that Mr. Abbott should have recognized his symptoms as being more
consistent with a stroke, and submits that his failure to do so constitutes deliberate
indifference. We are not persuaded.
We limit our subjective inquiry “to consideration of the [medical
professional’s] knowledge at the time he prescribed treatment for the symptoms
presented, not to the ultimate treatment necessary,” Self, 439 F.3d at 1233, and the
fact that Mr. Maguire’s symptoms could have also pointed to other, more serious
conditions fails “to create an inference of deliberate indifference” on Mr. Abbott’s
part, id. at 1235. See also Farmer, 511 U.S. at 838 (noting that an “official’s
failure to alleviate a significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be condemned as the
infliction of punishment”); Self, 439 F.3d at 1234 (“Where a doctor faces symptoms
that could suggest either indigestion or stomach cancer, and the doctor mistakenly
30
treats indigestion, the doctor’s culpable state of mind is not established even if the
doctor's medical judgment may have been objectively unreasonable.”). Indeed,
where the medical professional “provides a level of care consistent with the
symptoms presented by the inmate, absent evidence of actual knowledge or
recklessness, the requisite state of mind cannot be met.” Self, 439 F.3d at 1233
(emphases added). In this case, Mr. Maguire has presented no evidence of actual
knowledge or recklessness, and the “negligent failure to provide adequate medical
care, even one constituting medical malpractice, does not give rise to a
constitutional violation.” Id. (quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d
803, 811 (10th Cir. 1999)).
In sum, we do not believe that a reasonable factfinder could infer that Mr.
Abbott possessed the requisite culpable state of mind to satisfy the deliberate-
indifference standard, even if he misdiagnosed Mr. Maguire’s condition. Mr.
Maguire was required to present evidence—not conjecture or speculation—that Mr.
Abbott displayed a “conscious disregard of a substantial risk of serious harm
arising from [his] symptoms.” Id. at 1233. This he has not done.8 See id. at 1235
8
Mr. Maguire argues that Mr. Abbott “completely ignored symptoms Mr.
Maguire exhibited,” because his “simple-spasm” diagnosis explained only the issues Mr.
Maguire experienced in his left arm, and not any issue with his left leg. Aplee.’s Br. at
19–20. In making that argument, however, Mr. Maguire points to no actual evidence that
Mr. Abbott consciously disregarded any symptom at the time of the examination, and
instead simply speculates, without support, that Mr. Abbott’s alleged misdiagnosis leads
to the ineluctable conclusion that he consciously disregarded Mr. Maguire’s complaints
(continued...)
31
(finding the evidence of the subjective component wanting where a doctor treated
the plaintiff for a respiratory condition (a misdiagnosis), when his symptoms also
suggested a heart condition called endocarditis (his actual condition)); see also
Sealock, 218 F.3d at 1208–12 (finding the subjective component not met where a
prison nurse misdiagnosed an inmate’s chest pains, because the facts indicated “at
most” negligent diagnosis or treatment); Heidtke v. Corr. Corp. of Am., 489 F.
App’x 275, 282–85 (10th Cir. 2012) (unpublished) (citing Self, and finding that a
medical professional’s misdiagnosis did not evidence deliberate indifference,
because the medical professional took measures to address the symptoms he
perceived).
For the foregoing reasons, we reverse the district court’s denial of qualified
immunity to Mr. Abbott on Mr. Maguire’s Eighth Amendment deliberate-
8
(...continued)
concerning his left leg. To the contrary, the record evidence reflects that Mr. Abbott
reviewed Mr. Maguire’s symptoms, conducted an examination, and prescribed a course of
treatment based upon Mr. Maguire’s favorable response to targeted massage treatment.
Accordingly, we find that Mr. Maguire’s argument misses the mark.
Relatedly, Mr. Maguire argues that, based on “Abbott’s knowledge of Mr.
Maguire’s age,” a “reasonable jury could presume that Mr. Abbott knew of Mr.
Maguire’s serious medical need” and responded to it in a “deliberately indifferent
manner.” Aplee.’s Br. at 20. Mr. Maguire, however, never raised this argument before
the district court, and he has not argued for plain error on appeal; therefore, the argument
is effectively waived. See, e.g., Richison v. Ernest Grp. Inc., 634 F.3d 1123, 1131 (10th
Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal—surely
marks the end of the road for an argument for reversal not first presented to the district
court.”).
32
indifference claim and remand with instructions to enter summary judgment in
favor of Mr. Abbott.
3
With respect to EMTs Jensen and MacFarlane, we similarly conclude that
Mr. Maguire has failed to establish the subjective component of the deliberate-
indifference standard. Based on our review of the summary-judgment record, and
guided by the legal standards explicated supra, we can conclude that EMTs Jensen
and MacFarlane exercised considered medical judgment in determining that Mr.
Maguire had experienced a minor seizure, and, relatedly, we cannot discern any
significant ground for the contrary view that they “consciously disregarded a
substantial risk of harm” to Mr. Maguire. Self, 439 F.3d at 1235. Accordingly, Mr.
Maguire’s Eighth Amendment deliberate-indifference claim against EMTs Jensen
and MacFarlane also must fail.
Like the plaintiff in Self, Mr. Maguire “cannot argue he was denied medical
treatment. He was not.” Id. at 1234. Recall that EMTs Jensen and MacFarlane
responded to the “man down” call for emergency medical assistance, witnessed Mr.
Maguire convulsing, checked his vital signs, and assessed his overall condition.
Aplts.’ App., Vol. IV, at 446. Considering his symptoms, and the fact that he
remained lucid and communicative throughout their assessment, they determined
33
that Mr. Maguire had experienced a seizure.9 Although Mr. Maguire quarreled
with that diagnosis, Mr. Maguire demonstrated no symptoms suggesting that he
needed immediate or emergency medical treatment. Accordingly, EMTs Jensen
and MacFarlane left Mr. Maguire’s cell after moving his mattress to the floor for
safety, instructing him to contact the guards if his condition changed. Even with
the benefit of all favorable inferences, these facts fail to rise to the level of
deliberate indifference.
Mr. Maguire’s two arguments to the contrary are unavailing. First, he argues
that EMTs Jensen and MacFarlane effectively denied him medical care or, at a
minimum, provided him with woefully inadequate medical care under the
circumstances. Even Mr. Maguire’s version of events, however, demonstrates the
opposite. As noted, EMTs Jensen and MacFarlane evaluated Mr. Maguire’s
symptoms and determined, as a matter of medical judgment, that he suffered a
seizure.10 Under the circumstances, that diagnosis presented no obvious risk of
9
In their appellate briefing, EMTs Jensen and MacFarlane argue that Mr.
Maguire suffered a “simple partial seizure,” and urge us to take judicial notice of their
asserted definition of the technical medical term “simple partial seizure.” Aplts.’ Reply
Br. at 18 n. 4; see also id. at 18–19 (defining a “simple partial seizure” as “localized
motor symptoms on one side of the body (muscle jerks, isolated twitching, and tingling,
numbness, or weakness of arm or leg)”). Nevertheless, because we conclude that Mr.
Maguire’s allegations fail to demonstrate deliberate indifference (regardless of the precise
definition of “seizure”), we decline their invitation.
10
Although Mr. Maguire disputed the diagnosis, “a prisoner who merely
disagrees with a diagnosis or a prescribed course of treatment does not state a
constitutional violation.” Perkins, 165 F.3d at 811 (emphasis added); accord Ramos, 639
(continued...)
34
immediate danger, particularly given Mr. Maguire’s ongoing coherence throughout
their assessment. Nevertheless, EMTs Jensen and MacFarlane specifically advised
Mr. Maguire to notify the guards if he experienced any additional issues.
Accordingly, they provided actual medical treatment to a conscious and lucid
individual who displayed symptoms they recognized as reflective of a seizure. This
conduct is easily distinguishable from circumstances involving a medical
professional’s complete denial of obviously necessary medical care or provision of
patently unreasonable medical treatment—which Self tells us militate in favor of a
finding of deliberate indifference. See Self, 439 F.3d at 1232–33; cf. Blackmon,
734 F.3d at 1244 (finding that prison mental health professionals were not entitled
to summary judgment on qualified-immunity grounds where they failed to provide
a pretrial detainee with “any meaningful mental health care, despite his obvious
need for it”). Even assuming arguendo the diagnosis of EMTs Jensen and
MacFarlane under the circumstances then before them (rather than as later
developed) was wrong, it is beyond peradventure that “a misdiagnosis, even if
rising to the level of medical malpractice, is simply insufficient under our case law
to satisfy the subjective component of a deliberate indifference claim.” Self, 439
F.3d at 1234; see also Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1495 (10th
10
(...continued)
F.2d at 575 (“[A] mere difference of opinion between the prison’s medical staff and the
inmate as to the diagnosis or treatment which the inmate receives does not support a
claim of cruel and unusual punishment.”).
35
Cir. 1990) (noting that “[d]eliberate indifference” requires “a higher degree of fault
than negligence, or even gross negligence”).
And, second, Mr. Maguire essentially contends that EMTs Jensen and
MacFarlane failed to fulfill their gatekeeper function by improperly denying him
access to further medical treatment. See Sealock, 218 F.3d at 1211 (explaining that
a medical professional may act with deliberate indifference if he serves “as a
gatekeeper for other medical personnel capable of treating the condition[] and . . .
delays or refuses to fulfill that gatekeeper role” in the face of an obvious need for
additional treatment or referral); see also Self, 439 F.3d at 1232 (same).
Significantly, gatekeeper liability only attaches “where the need for additional
treatment or referral to a medical specialist is obvious.” Self, 439 F.3d at 1232.
Here, again, Mr. Maguire has not demonstrated that his symptoms were
inconsistent with an episodic seizure of the kind that EMTs Jensen and MacFarlane
diagnosed him as having—which required no additional treatment or referral for
further treatment. Cf. Mata, 427 F.3d at 755, 758 (finding that a nurse “completely
refused to fulfill her duty as [a] gatekeeper” where she observed obvious signs of a
medical emergency (e.g., unexplained chest pains), but “neither administered first
aid nor summoned medical assistance despite [the inmate’s] plea for medical
attention”). Accordingly, the decision of EMTs Jensen and MacFarlane not to refer
Mr. Maguire for an additional medical assessment and treatment fails to meet the
“high evidentiary hurdle” for deliberate indifference under a gatekeeper theory.
36
Self, 439 F.3d at 1232.
For all of these reasons, we reverse the district court’s order denying
qualified immunity to EMTs Jensen and MacFarlane, and remand with instructions
to enter summary judgment in their favor.
IV
Based on the foregoing, we DISMISS Mr. Miller’s appeal for lack of
appellate jurisdiction, and we REVERSE the district court’s denial of summary
judgment on qualified-immunity grounds to Mr. Abbott and EMTs Jensen and
MacFarlane, and REMAND with instructions to enter judgment in their favor.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
37