*1 and in any statements court “belie[d] no- GRANT counsel’s motion to withdraw and tion that he didn’t process” understand the DISMISS this appeal. “certainly
and were inconsistent with his
claim of lack of understanding and incom-
petence.”
The district court discounted the conclu-
sions presented by expert, Pitter’s who
had representations relied on false made Contrary Pitter. expert’s Pitter’s
impression, the district court pointed out
that evidence showed Pitter had been mar-
ried, provided children, for his Wayne obtained a HEIDTKE, David GED, and in fact “operated very suc- Plaintiff-Appellant, cessful, very sophisticated, multiple-state v. drug operation that involved obtaining CORRECTIONS CORPORATION OF mailboxes in Nevada under otherwise fair- AMERICA, Sutton, Jere MD, in his ly names, innocent people’s arranging false individual capacity, official K. others, identifications for himself and ar- Carpenter, RN, in her individual and ranging airplane transportation, and so capacity, official Jolly, RN, Anna forth.” Id. at 146. in her individual and capacity, official In light of its conclusion that Pitter Defendants-Appellees. knowingly voluntarily pleaded guilty, No. 11-1205. district court ruled that Pitter had failed to demonstrate a “fair just rea- United States Court Appeals, son” for withdrawing guilty plea under Tenth Circuit. 11(d).5 Federal Rule of Criminal Procedure Id. at 149-54. Based on our thorough Sept. record,
review the agree we with coun-
sel that no grounds meritorious exist for
challenging the district court’s conclusions regard.
Ill
We conclude that there are no nonfrivo-
lous appeal. issues for Accordingly, we of seven deciding Out factors we quality consider in of the defendant’s assistance of whether counsel; a defendant (6) should be allowed plea knowing whether the guilty plea, withdraw a the district court not- (7) voluntary; grant- whether only ed that one—"whether the defendant has ing of the motion would cause a waste of delayed filing a motion”—favored Pitter. judicial resources. ROA, 2Vol. at 153-54. The factors are: Siedlik, United States 231 F.3d (1) (10th Cir.2000). whether the defendant has asserted his Pitter assert did his inno- innocence; (2) cence, government whether but district court concluded that prejudiced baseless, will if granted; the motion is noting assertion was that "the (3) whether the delayed defendant has presented in the trial of [Pitter's] motion; (4) filing the the inconvenience to overwhelmingly numerous codefendants es- (5) granted; the court if the ROA, motion is guilt.” tablished his Vol. 2 at 152. *2 Lee Nike Buckingham, Leachman
Miles Ronald Glogiewicz, H. Fleming, Barbara P.C., Den- Nemirow, Kennedy Childs H. CO, ver, Defendants-Appellees. for BRISCOE, Judge, Chief Before TYMKOVICH, BALDOCK, Circuit Judges.
ORDER BALDOCK, Judge. Circuit BOBBY R. court on con- the matter is before This For Re- Petition appellant’s sideration response also have Banc. We hearing En addition, via this appellee. from the our withdraw order, the clerk to we direct and to sponte, decision sua panel original Judgment & Order the amended issue place. in its this order dissent attached rehearing panel request for implicit The by a petition is denied appellant’s found in Chief original panel. majority of grant Beck Briscoe Judge Mary was also rehearing. petition panel judges to all of transmitted active service. regular who court are judge no panel member of As no request- the court service on regular active en banc polled, the court be ed that is denied. request likewise however, noted, determined we have As original pan- of sponte amendment sua Consequently, in order. el decision Order & to withdraw clerk is directed on June originally Judgment issued attached decision The amended amend- order, along with the attached tunc to the dissent, nunc pro issue ed shall filing date. original Firm, Law Taussig Taussig, Deborah AND JUDGMENT* ORDER Trine, Trine Law Cherie Cheryl Louise Heidtke, a former Wayne CO, Plaintiff David Boulder, Firm, LLC, for Plaintiff- County Correc- Huerfano inmate Appellant. * estoppel. It judicata, and collateral res binding prece- judgment is not This order cited, however, val- persuasive its law of except under the doctrines dent Center, tional fractured the discoloration, distal radius of swelling beyond the right playing splint. arm while softball with weeks, other inmates. For over seven later, Two days on June Plaintiff had *3 experienced Plaintiff worsening pain and a follow up visit with Defendant Sutton at swelling. Eventually, a doctor at Denver the prison medical clinic. Defendant or- Health Medical diagnosed Center Plaintiff dered Plaintiff to return in days five for with a malunion of the fracture and Com possible casting of the arm. At the June 4 plex Regional (CRPS), Pain Syndrome appointment, Plaintiff, who upper had an chronic condition. Plaintiff sued the bed, bunk asked Defendant to order a prison’s temporary treating physician, Dr. lower bunk restriction so he would not Sutton, Jere for deliberate indifference to have to climb into the upper bed without a his medical needs Eighth in violation of the ladder. 10, June On Plaintiff Amendment.1 The district court granted went clinic, to the medical complaining of Defendant Sutton’s motion summary- for pain and swelling. On each of these occa- judgment, concluding he did not sions, conscious Plaintiff did not wear sling. his The ly disregard Plaintiff’s medical needs.2 duty nurse on told him to his sling wear Plaintiff appealed. We review a grant of each of these Again, 13, visits. on June summary novo, judgment de the Plaintiff using returned to the clinic without same standard as the district court. wearing Seal sling. his He requested to have Colorado, (10th 1205, ock v. 218 F.3d his arm re-wrapped, complained Cir.2000). jurisdiction We exercise continued pain and pursu swelling. Plaintiff saw 1291, § ant to 28 U.S.C. and affirm. Defendant for the second time on June 16
or 17. Defendant he could not determined cast the arm because of the continued I. swelling. Defendant x-ray ordered an the arm up and follow visit in two weeks. On June the same day Plaintiff Defendant’s reading of the x-ray did not arm, fractured his a doctor at a local emer- reveal a malunion of the fracture. Subse- gency room examined Plaintiff and deter- visit, quent to this griev- Plaintiff filed mined the fracture was not serious. The ances, complaining of the increasing pain placed doctor Plaintiffs arm in a splint and swelling. ordered Plaintiff keep his arm elevated packed and ice for the first few days. The month, July next on Plaintiff saw doctor told injury Plaintiff the take a nurse because of continuing pain. He eight three to weeks to heal. The emer- complained only not worsening pain and gency room discharge doctor’s instructions swelling, but also of the loss of almost all stated Plaintiff return to should thumb, emer- mobility his tingling increased gency room if splint did prevent numbing fingers, sensations his pain when he moved or if Plaintiff experi- pain from his thumb to his elbow. The enced unexpected, numbness, severe pain, nurse rewrapped bandage covering the ue consistent R.App. with Fed. P. 32.1 and 2. Plaintiff sued Corporation Corrections America, 10th Cir. R. operates 32.1. which owns and Huerfano County Correctional Center. Plaintiff addi- 1. The district court declined to exercise its tionally Kathryn Carpenter sued and Anna supplemental jurisdiction over state Plaintiff’s Jolly, prison. at the nurses Plaintiff has vol- subsequently law claims. Plaintiff filed a untarily every except dismissed Defendant for state court action to address those claims. Sutton. Defendant Defendant’s granted court The district to the returned Plaintiff splint. The dis summary judgment. for motion document- nurse Another on July clinic Eighth Amend his analyzed trict court rew- pain, complaints Plaintiffs ed test two-prong to the pursuant ment claim pre- him a gave bandage, and
rapped
in Farmer
set forth
Supreme Court
took
Plaintiff
Acetaminophen.
scription
1970, 128
Brennan,
825, 114 S.Ct.
511 U.S.
medicine,
but failed
initial
dose
(1994).
requires the
This test
L.Ed.2d 811
Two
doses.
of the
the remainder
obtain
objectively suffi
to be
of care
deprivation
Defen-
saw
later,
days
subjec
to be
and the official
ciently serious
noted
*4
Defendant
time.
for the third
dant
court
the risk.
district
tively aware of
hand and fin-
the
but stated
swelling,
the
was suffi
fracture
radial
held Plaintiffs
warmth. Defen-
and
color
good
had
gers
objective prong
meet the
ciently
to
serious
an
bandage, ordered
the
rewrapped
dant
subjective
to the
But as
the
test.
Naprosyn
prescribed
x-ray, and
additional
nothing
the
concluded
the court
prong,
in-
temporary,
Defendant’s
pain.
the
Defendant
supported
inference
record
the fol-
ended
prison
duty with
terim
subjective
culpable
required
possessed
saw
physician
prison
new
day. The
lowing
indifference.
for deliberate
mental state
after the
a half weeks
and
seven
Plaintiff
and
nurses
Defendant
The court noted
orthope-
to an
Plaintiff
and referred
injury
over a one month
eight times
Plaintiff
saw
Plaintiff
who in turn referred
surgeon,
dic
The court
complaints.
period for
diagnosed
Doctors then
neurologist.
to a
Defendant exam
that
to evidence
looked
and
syndrome
carpal tunnel
Plaintiff with
13
injury,
days after
two
ined Plaintiff
CRPS.
after that. The
later,
days
28
days
though, argu
court stated even
district
alleged Defen-
Plaintiff
complaint,
In his
been more
could have
ably, Defendant
to his
deliberately indifferent
dant was
the medical
comprehensive,
thorough and
knew:
Defendant
needs because
com
Plaintiffs
and addressed
noted
staff
hospi-
(1)
to
to return
Plaintiff needed
court
visit. The district
at each
plaints
room doctor’s
emergency
on the
tal based
stated:
(2)
instructions;
Plaintiff needed
discharge
complaints
various
about
plaintiffs
All of
and did not
a lower bunk
assigned
Sutton—
Dr.
care he received from
(3)
restriction;
leaving bro-
order such a
the seri-
fully appreciated
whether he
posed
casted
rather than
splinted
ken arm
and the
plaintiffs
fracture
ousness
injury; and
of serious
risk
a substantial
CRPS;
development
for the
potential
(4)
hospital
if
return to
Plaintiff should
have been cast-
arm should
whether the
swelling, yet,
experienced
make
qualified
ed and who
role, he
gatekeeper
than fulfill his
rather
swelling
determination;
whether
Additionally,
splint.
re-wrapped
experienced
plaintiff
other
refused to ful-
Defendant
alleged
sug-
injury
with his
were consistent
pro-
failed to
role
gatekeeper
fill his
complication; the
serious
more
gested a
staff; specifi-
to the medical
oversight
up
vide
of follow
scheduling and timeliness
not
did
the nurses
order a
cally, he knew
the failure
appointments;
and that
suggest
up appointments
best
follow
restriction —at
schedule
lower bunk
splint
Plaintiffs
erroneous exer-
rewrapped
than
nothing
the nurses
more
regarding the
filling
following nursing protocols,
cise medical
without
condition. This
plaintiffs
ga-
their
records,
fulfilling
seriousness
without
out
necessity for
where the
a case
is not
tekeeper roles.
279
different or more aggressive course of
stitutes the
unnecessary
wanton inflic-
”
medical treatment was so obvious that a
pain.’
Crum,
tion of
1227,
439 F.3d
Self
(10th
lay person
Cir.2006)
could have
it.
perceived
1230
(quoting Estelle v.
Gamble,
U.S.
97 S.Ct.
Am.,
Heidtke v.
Corp.
Corrections
(1976)).
L.Ed.2d 251
prevail
To
on a
(D.Colo.
2011).
*5
Apr.
WL
“
claim,
§ 1983
‘inadvertent failure
pro-
The district court concluded it could not
adequate
vide
medical care’ is not enough,
second-guess Defendant’s medical
judg-
nor does ‘a complaint
physician
that a
has
ment
guise
under the
of an Eighth Amend-
been negligent in diagnosing or
treating
ment claim. The court further concluded
medical condition ... state a valid claim of
evidence suggested
no
Defendant was de-
medical mistreatment under the Eighth
liberately indifferent in
ordering
a re-
Amendment.’”
Estelle,
Id. (quoting
appeal,
ferral. On
Plaintiff contends dis-
285).
“Rather,
U.S.
97 S.Ct.
‘a
puted issues of material fact exist from
prisoner
allege
must
acts or omissions suf-
we
could infer Defendant knew of a
*5
ficiently harmful to evidence deliberate in-
substantial risk of serious harm but failed
difference to serious medical needs.’” Id.
to take reasonable
to abate the
measures
Estelle,
(quoting
106,
for tech- diagnostic additional whether disregards an tion knows the official less is indicated.” treatment safety; niques or or forms health to inmate risk excessive Estelle, 429 U.S. of facts (quoting be aware Id. must both the official 285) (internal marks omit- quotation could be drawn the inference S.Ct. from ted). harm deliberate Eighth risk of serious Amendment An a substantial infer- actionable exists, must also draw “is therefore claim indifference (internal F.3d addition- Self, 439 where the need only ence.” in cases omitted). subjec- “The spe- marks to a quotation or al treatment referral added). to recklessness is akin component tive (emphasis Id. cialist obvious.” law, where, recklessly, act the criminal of a in the circumstances obviousness “And a sub- consciously disregard referral, person must while delayed diagnosis or missed (inter- risk of serious harm.” formulation, stantial re- precise to a subject omitted). And marks quotation nal circumstantial or quires direct requi- had the prison official “[w]hether con- different arise in several that can is a risk knowledge of a substantial site three. identified Id. We texts.” to demonstration subject of fact question inability First, may recognize a doctor inference from including ways, in the usual the serious- because of patient to treat (internal evidence.” circumstantial a lack of condition of the medical ness omitted). A serious med- marks quotation unnecessarily de- decline expertise, but be evidence “could need’s obviousness ical *6 Second, a doctor Id. lay a referral. indifference, a although pris- of deliberate “so obvious condition treat medical fail to a the obvious es- that may show on official recognize the layman even a (inter- liability.” Id. avoid caped him Finally, a doctor could Id. condition.” omitted). marks quotation nal though ob- deny care even completely two Circuit, recognized we have In this could symptoms which recognizable serves to the may rise types of conduct Id. emergency. signal a medical prison ain indifference level of deliberate “responds to an prison physician If a “(1) professional a medical medical case: patent- that is with treatment risk obvious medical condition treat a serious failing to unreasonable, con- may infer jury a ly (2) prevent- prison official properly; a doc- “But where Id. disregard.” scious receiving medical from an inmate ing consistent tor orders treatment denying access medical or treatment and then continues presented symptoms evaluating an in- capable personnel condition, an patient’s monitor the infer- But, our case law Id. mate’s condition.” is unwar- deliberate ence subjective indifference “the firmly establishes 1232- Id. at our case law.” ranted under satisfied, absent an ex- not component added). in this Accordingly, (emphasis neglect, where traordinary degree of Circuit, provide “negligent failure his considered merely exercises doctor care, constitut- even one adequate medical 1232. Exam- Id. at judgment.” medical rise give not malpractice, does ing medical traditionally fall matters “that ples of such at 1233 Id. violation.” ato constitutional are of medical scope within omitted). (internal As marks quotation specialist to consult as whether decisions “provides physician prison long as testing.” additional undertake symptoms with the care consistent added). level of doctor prison A (emphasis Id. inmate, absent presented by Eighth Amendment’s violate the does recklessness, knowledge or of actual punish- unusual cruel and prohibition state of requisite mind cannot be met.” Id. lowing an inference [Defendant Sutton] Indeed, subjective we have limited our in- consciously disregarded the possibility of “to quiry consideration of the doctor’s [complications from the distal radius frac- knowledge prescribed the time he treat- Id. ture].”
ment for the symptoms presented, not to Plaintiff posits five such inferences. De- the ultimate treatment necessary.” fendant knew of the hospital discharge added). (emphasis instructions in his prison medical chart directing Plaintiff to return to the hospital B. if severe pain or swelling beyond the splint Plaintiff has not subjective meet occurred. Defendant observed and docu- prong. case, Plaintiff, present like mented Plaintiffs worsening prisoner Self, attempts to remove and Defendant failed to refer Plaintiff to a subjective inquiry from the deliberate specialist. Additionally, Defendant knew indifference test suggesting “that a the obviousness of the need for treatment competent doctor looking at symp- [his] because the prison new physician noted toms would have known that [malunion deformity “obvious” two weeks CRPS, in our possible were] later and Defendant took measures to rew- taken steps additional to confirm such a rap the bandage prescribe pain medi- diagnosis.”3 Id. As we in Self, discussed cations as Plaintiffs symptoms progres- “Farmer v. Brennan and our cases inter- sively worsened. clear, preting Farmer have made ‘a purely Taking the objective test for facts of the light deliberate case in the indifference is simply Plaintiff, incompatible’ with the most favorable to tenets of the the facts do not Eighth Amendment.” show (quoting disregard Farm- conscious of Plaintiffs er, 1970). Thus, U.S. above, S.Ct. medical needs.4 As discussed point “must to some evidence al- Eighth Amendment deliberate indifference *7 Despite 3. Plaintiff's concerns that the summary judgment district and was therefore im- subjective court erred in component analy- its proper. Although Plaintiff is correct the dis- sis because it identified the fracture itself as acknowledged genuine trict court issues of injury objective the inquiry, for the the district exist, fact fully as do we—whether Defendant clearly analyze complications court did the appreciated the of seriousness the fracture that resulted the from treatment of the frac- CRPS, potential and the development for subjective prong ture in analysis. its The casted, whether the arm should have been Eighth district court did not examine the swelling whether Plaintiff's were Amendment claim as if Defendant had some- injury suggested consistent with his or Indeed, how caused the fracture. the district more complication, scheduling serious the analyzed court Defendant's treatment of the appoints, timeliness of and the failure to fracture, acknowledging the issues of whether order a lower bunk restriction—-Plaintiff con- fully appreciated Defendant the seriousness of summary judgment fuses the standard. The potential Plaintiff's fracture and the for the district court viewed each these facts CRPS; development of whether the arm we, favor, as do and concluded the Plaintiffs should have been quali- casted and who was suggested nothing facts more than the erro- determination; fied to make that whether the judgment regard- neous exercise of medical swelling symptoms plaintiff experi- other ing the seriousness of Plaintiff’s condition. enced injury sug- were consistent with his words, give In other we Plaintiff the benefit gested complication; a more serious and the of the doubt these facts are true and consider failure to order a lower bunk restriction. Heidtke, still, them WL in his favor. But 1335855 at Plaintiff cannot *5. showing disregard succeed in a conscious argues 4. Plaintiff the district court acknowl- satisfy subjective prong. edged disputed issues material fact existed purposes for the component subjective the need only where is actionable
claim Like in summary judgment. defeating is obvi- of treatment or additional a referral physi- informed the inmate And our F.3d 1232. obvious- Self, 439 at ous. And healing. diag- finger a missed cian the circumstances ness in noted recognized three arises in the doctor although referral delayed nosis or may be appeared first tissue repaired Id. Obviousness inmate’s contexts. ignored com- professional disintegrating, where a medical and was found black certainly is But that care. denies pletely symptoms. here, Defendant case where not the in Ox- medical condition But unlike occasions, or- three Plaintiff on examined onset of CRPS endine, the malunion medication, and x-rays, prescribed dered that even not so obvious case were in this Rather, condition. Plaintiffs
monitored
the conditions.
recognize
layman
missed
Defendant
contends
Plaintiff
in-
malpractice,
if
even
misdiagnosis,
A
and did
and CRPS
of malunion
diagnosis
compo-
subjective
satisfy
sufficient
specialist.
him to a
not refer
not view Defen-
Plaintiff does
But
nent.
as a
diagnosis of CRPS
missed
dant’s
1.
by Jonathan
stated
misdiagnosis. As
sce-
second
accordingly turn
We
experts,
Woodcock, one of Plaintiffs
may find
which we
obviousness.
nario from
in that
typical
case is rather
“[t]his
professional
where medical
This occurs
misdiagnosis.
one of
was not
problem
“so obvi-
condition
treat a medical
fails to
recognize
failure to
was a
problem
recognize
layman would
even a
ous
early signs
[sic]
Mr. Heidkte’s
439 F.3d at
Self,
the condition.”
for the
high
at
risk
put him
court erred
the district
believes
Plaintiff
in-
CRPS,
early
and that
development
court
The Farmer
this standard.
applying
could
treatment
terventional
if a “reasonable
the risk is obvious
stated
was not undertaken.”
his course
impacted
Farmer,
it.
511 U.S.
realize
man” would
Accordingly, this
II,
vol.
Aplt.App.
argues
Plaintiff
S.Ct. 1970.
treating physi-
akin to a
is more
situation
rather
a physician,
precedent,
our
under
which,
connect-the-dots,”
“failure
cian’s
training
lay
no
person
than a
cul-
itself,
to establish
“is insufficient
reason-
of a
our measure
serve as
should
Self,
F.3d
state of mind.”
pable
Department
cites
able man.
symptoms obvious-
“Only when the
Health
Safety and
Occupational
Labor v.
*8
harm can
risk of
to a
ly
substantial
point
(10th
Commission,
tiff Defendant, sim- Plaintiff which part of Defendant asserts Finally, Plaintiff do. cannot ply medical to his deliberately indifferent role. “gatekeeper” in his failing needs 2. is indifference type deliberate this of But sce and final to the third now We turn 1211. Where Sealock, 218 F.3d rare. obviousness. may find we nario in which in a role that his “knows physician record to show in the exists No evidence to solely is emergency medical particular inabili recognized an may have Defendant medical for other gatekeeper as a serious serve Plaintiff because to treat ty lack of and a treating condi- capable the medical condition ness of personnel unnecessarily or declined but expertise, deliberate tion, may liable for ... he be sur orthopedic an referral delayed a added). (emphasis Id. indifference.” 1232. “[A]bsent F.3d at Self, 439 geon. was Plaintiffs Here, Defendant where neglect,” extraordinary degree an Although Defendant treating physician. medical his considered a doctor exercises neurologist need a rule he would stated specialist, to consult not judgment is not CRPS, practitioner general out comp subjective satisfy the cannot plaintiff make by failing to deliberately indifferent Defen stated Dr. Woodcock onent.7 knowledge of he has no when a referral symp worsening “ignored [Plaintiffs] dant result, absent an Such a risk.8 substantial refer diagnose or toms, no effort making extraordinary degree neglect, evaluation specialty him for further that a case law doc- our with inconsistent II, 448. vol. Aplt.App. weeks.” over seven ais specialist consult a decision to tor’s “should Defendant believes Dr. Woodcock satisfy does not judgment, medical prevent about more concerned have been Self, 439 component. F.3d subjective its waiting to confirm ing than CRPS at 1232. This evidence at 446. diagnosis.” symptoms Plaintiffs not establish does jury could not a reasonable In this skill medical “obviously required unusual from De- disregard either conscious infer referral, or necessitating ability thus or diagnosis or Defendant’s missed fendant’s otherwise failed Sutton] that [Defendant a specialist. Plaintiff to refer failure to consistent of treatment a course provide Although Defendant’s Self, recognized.” symptoms he with negli- or malpractice may have constituted Rather, Defendant F.3d at to con- speculate simply we would gence, consistent a level of care “provide[d] state of culpable had a Defendant clude by the inmate.” presented summary judgment re- Because mind. of actual evidence Because no Id. at 1233. speculation rather than quires exists, req “the knowledge recklessness about and conscious- knew Defendant be met.” Id. mind cannot uisite state dicta, not establish in its did law decision language but case argues Eighth of Farmer. with that the law of inconsistent disagree. restated we standard Self in the indifference deliberate Amendment disregard our We Tenth Circuit. general capacity of a in the Defendant acted interpreted the law in which we case Although prison. he had practitioner Further- prong the Farmer test. subjective more, past, surgeon orthopedic been *10 incon- is contention Plaintiff's Self surgeon orthopedic stopped practicing as simply untrue. Fanner sistent with is 1988. in correctly applied Circuit's district court risk, ly disregarded the decision of unit, to HCCF’s medical and then trans- district court is AFFIRMED.9 ported to the emergency department at Spanish Regional Peaks Health Center in
BRISCOE, Judge, Chief dissenting. Walsenburg. There, Id. at 21. right I respectfully dissent this summary in arm and wrist were x-rayed. Id. The x- I disagree case. major- ray revealed a “[mjinimally displaced ity’s conclusion that Heidtke pres- failed to transverse fracture right [of distal the] ent sufficient satisfy evidence to radius,” the sub- with a line “[flracture [that] jective component test, i.e., of the Farmer m[ight] extend to the radiocarpal joint, Sutton whether had a sufficiently culpable dorsal medially.” Id. at 544. Dr. Rodney mind, Brennan, state of Farmer 511 Lange, the emergency room physician who 825, 834, U.S. 114 S.Ct. 128 L.Ed.2d Heidtke, examined treated the injury by (1994). Although it question, is a close placing right Heidtke’s arm and wrist in a my view the presented by splint sling. Id. at 217. Lange Heidtke in response to Sutton’s motion for also issued directing orders that Heidtke’s summary judgment was sufficient to cre- injured arm be packed elevated and in ice ate an issue of material fact regarding days first few after injury. Id. at whether knew disregard- about and Lange opined the fracture would take ed a substantial risk of serious harm to to eight three weeks to heal. Id. Heidtke. Accordingly, I would reverse the Defendant Jere Sutton a physician is grant district court’s summary judg- practice licensed to medicine in Colorado.
ment in favor of Sutton and remand the at Id. 218. Sutton practiced as an ortho- case to the district court pro- for further pedic surgeon elected, until he ceedings. surgical practice. Thereafter, cease his Id. practiced office orthopedics, including
I various stints a temporary physician. as Although majority opinion provides 30, 2008, at May Id. 232. On Sutton con- a brief summary factual of Heidtke’s inter- tracted with CCA to work temporary as a Sutton, actions with fails, view, it in my general medical at doctor until a HCCF do so in a manner consistent with the permanent replacement could be hired. standard of applies review that in sum- Id. mary judgment cases. specifically, More I believe that the majority opinion fails to 4, 2008, On June days two after his recount evidence in the light most injury, Heidtke was seen by Sutton in favorable to Heidtke. I Accordingly, shall HCCF’s medical unit. Id. Sutton noted begin by doing so. that there was “swe[l]ling of the hand and 2, 2008,
On June Heidtke was an inmate pain on palpation movement.” Id. at at the Huerfano County Fa- arm, Correctional 240. Sutton entered orders that the (HCCF) cility in Walsenburg, Colorado. which at the time splint was bound on a App. date, at 217. On that Heidtke sling, and in a “[i]n- was to be considered for jured right playing [his] wrist casting softball.” after swelling decreased. initially 353. Heidtke was escorted Sutton also ordered that Heidtke receive 20, 2012, false, On March. filed a factually Plaintiff “motion tion to ex-parte strike letter false, factually ex-parte strike letter and for reprimand.” and for Plaintiff's March 21 reprimand.” On March unopposed granted. motion withdraw "unopposed filed an motion to withdraw mo- *11 his medical to deliberately indifferent follow- that a ordered and for pain,
Vicodin was grievance at 474. Id. days possible needs. “5 within occur up visit Id. denied. easting.” Id. ap- 6, 2008, Heidtke when June 24, 2008, completed
On Heidtke On June pick up to unit medical at HCCF’s peared a written officials to HCCF submitted and be out of medication, to noted his form stat- FOR SERVICE” “REQUEST Id. at dangling. his arm sling, on my meds I finished “I realize that ing, in the medi- again was seen 219. Heidtke month, pain the and but 22nd of the 7, 2008. day, June following unit the cal getting it is persisting, still swelling is and he was was still swollen His hand Id. better, I would possible if worse instead Id. Three ongoing pain. Tylenol for given my next again be seen before like to 2008, re- 10, Heidtke later, on June days On that Id. at 357. x-ray.” scheduled unit and discussed medical to the turned date, medical unit in HCCF’s a nurse same of ob- possibility with staff members scheduled “You are writing, in responded him would allow to that taining “pass” Id. doctor.” to talk to the mess to the during sling trips wear his 2008, completed Heidtke July On hall. Id. “REQUEST FOR another submitted for a by Sutton second seen Heidtke was form, stating: this time SERVICE” fif- (approximately time on June by the Doctor for to seen I would like Id. injury). days after teen 4 weeks I wrist. For my broken “[fjingers and that Sutton observed worsening pain and experiencing been edema- [injured [we]re arm] hand on the I have my in lost swelling hand/arm. warmth [sic].” good color and tous—have my in thumb. I’m mobility almost all arm was taken Heidtke’s x-ray of Id. An tingling and more getting more that x-ray from observed and Sutton my fingers, numbing sensations stable and “[a]ppear[ed] the fracture my to my from thumb that radiates angulation.” with no Id. impacted slightly on excruciat- starting to elbow is border noted, however, Heidtke “com- that terribly painful My thumb is ing. pain” and had swelling and plain[ed] touch. pain.” to the sleep due been “[u]nable later was seen that Heidtke Id. at 358. that Heidtke further noted Id. Sutton duty on HCCF’s by a nurse day same sling at times.” out of [his] been “[h]a[d] noted 242. The nurse Id. at medical not cast unit.. he could determined Id. Sutton fingers [of “[s]kin [the] to the swell- time arm due th[at] “at very tight and were] hand right Heidtke’s Heidtke] [with and he ing,” “[d]iscussed her that “his Heidtke advised Id. puffy.” lessening the improving means time,” much of fingers tingl[e]d extra- prescribed swelling.” Id. Sutton thumb [his] move “[u]nable that he was four-day-regimen and a strength Tylenol Id. The nurse pain.” fingers without to return directed Heidtke of Vicodin and with an “ACE arm Heidtke’s “rewrapped” in two weeks. follow-up visit for a her observations in noted wrap” and on June with Sutton his visit Following records. Heidtke’s completed and submitted Heidtke medical unit on to the Heidtke returned grievance an inmate officials HCCF arm and wrist complaining of Therein, complained that Heidtke form. nurse who saw 243. The Id. at pain. ignored his at HCCF had the medical staff splint sling Heidtke observed pain, and were swelling and complaints of *12 were in place right on his arm. Id. The ment Sutton. Id. at 414. Paz nurse provided with a five-day Heidtke noted that Heidtke was post weeks “7% regimen of acetaminophen and noted that fall” and fracture and was [experi- “[s]till by was scheduled to be seen physician encing] severe pain inability and due to later that week. Id. pain to extend his thumb.” Id. at 245. Paz removed splint Heidtke’s and ob- 7, 2008, July On by was seen Heidtke served a “deformed dorsum of [Heidtke’s] Sutton for a third Id. at time. right hand.” Id. Paz also observed “[g]ood Heidtke advised Sutton that he expe- was pulses and neuro intact.” Id. Paz noted riencing swelling and pain right his “[p]ain snuff box [Heidtke’s] [was] thumb and was unable to move it. obvious,”1 and that was expe- Heidtke also Sutton observed that right Heidtke’s hand riencing “pain right [in his] elbow.” Id. fingers swollen,” and slightly “[we]re but Paz noted in Heidtke’s medical chart: “[g]ood had color and warm.” Id. [we]re “Need to rule out scaphoid fracture and Sutton “[r]emoved outer ace wrap [the] fracture or dislocation of carpal elbow and reapplied and and allowed it to be [it] less bones. Ortho consult important need- tight at [the] base thumb.” Id. [the] ed!” Id. Accordingly, Paz ordered an Sutton also directed that Heidtke receive “[o]rthopedic ASAP,” consult as well as an x-ray wrist, right of his pre- and he (outside “X-Ray of this facility if neces- scribed twenty-day Heidtke a regimen of sary within hand, next couple days right Naprosyn for pain. wrist, scaphoid view of right wrist and Following his appointment with Sutton fracture/dislocationf) elbow for ].” Id. Paz 7, 2008, on July completed Heidtke prescribed also Heidtke medication submitted to HCCF officials an inmate “until [he was able to] see ortho sur- [] grievance stated, form. The in perti- form geon.” Id. part, nent “The staff medical is aware of Heidtke by was examined an orthopedic my condition, worsening yet they do noth- physician, Nakamura, Dr. Shawn on Au- ing change but bandage on my arm gust 2008. Id. at 363. Nakamura and take me off only medication that noted that Heidtke had range- decreased was allotted.” Id. at 475. Heidtke alleged of-motion “in all planes of the [right] that these acts constituted deliberate indif- wrist,” “dorsiflexion,” decreased “[r]adial ference. On HCCF officials deviation,” ulnar “[p]ain [range wrote that no “[t]here [wa]s evidence to thumb,” of the motion] and “[t]enderness support claim [his] insufficient treat- [of] throughout the wrist and hand.” Id. at ment.” Id. 363. Nakamura concluded Heidtke Approximately later, two on July weeks fracture, suffered a right had radius distal 22, 2008, Heidtke seen in RSD,” id., HCCF’s i.e., elements “ha[d] Re- by (otherwise unit physician, different Dr. Sympathetic flex Dystrophy Paz, David who had hired been CCA as known as Complex Regional Syn- Pain a full-time employee (CRPS)), effective replace- drome id. at 346.2 Nakamura Box, 1. "The anatomical triangular ipedia, snuffbox is a Snuff http://en.wikipedia.org/ wiki/Anatomical_snuff_box. deepening radial, aspect dorsal of the bones, carpal hand-—at the level specifi- of the cally, scaphoid trapezium bones CRPS pain syndrome "is chronic most forming originates the floor. The name from resulting often single from trauma to ex- Astrue, placing use of this surface for tremity.” and then Oldham v. 509 F.3d " tobacco, sniffing (10th powdered Cir.2007) (internal or 'snuff.' Wik- quotation n. *13 cause a any surgery trolled notes, get- ... “I’m medical in his stated flare. an getting Neurology to a referral ting about Worried R[ight] wrist. the
MRI of at 365. Id. box.” the snuff of palpation to
tenderness II Id. fails, my in also majority opinion by a 2009, was seen Heidtke early In weight give proper view, recognize and to concluded, Sunku, af- who Dr. neurologist, by presented expert the to tests, the results “that running various ter motion for to Sutton’s response in Heidtke carpal moderate with ... consistent [we]re evidence, which That judgment. summary possi- [Heidtke] and that syndrome tunnel to the response to his attached Heidtke Later at 457. RSD. Id. bly also had” summary for motion defendants’ other to a half- paroled 2009, was Heidtke after by refer- incorporated and then for his own responsible and was way house motion for to Sutton’s response in his ence diag- care, definitively “he as follows: provided summary judgment, Den- neurologist” at by a RSD nosed with Reckling, an (cid:127) Reckling. Dr. Carlton Id. at 26. Medical Center. ver Health as by Heidtke surgeon retained orthopedic Timothy Dr. was also seen Heidtke witness, steps the considered expert an at the Muratore, doctor orthopedic three of his during each by Sutton taken Muratore Medical Center. Denver Health to the respect With visits with Heidtke. after following the recommendations made visit, that Reckling opined June 2009: in late examining Heidtke with even Heidtke provide failed to Sutton the com- patient’s treatment,” point, due which At this accepted “minimal the un- syndrome, ishe to an regional pain plex as referral Reckling described inter- any surgical pos- from likely to benefit for surgeon evaluation orthopedic fact, will he point. follow-up evaluation at this surgery, vention sible CRPS worsening of the Id. at 486. likely days. five most within by Sutton per- any surgery Heidtke’s opined were to that Reckling if be there further future. For the in the at June presentation” near formed “clinical of distal simple for a reason, the best course not ‘normal’ we feel that visit “[wa]s fracture,” proper the to the and that is to be sent patient for the action radius to an poten- was “referral anesthesiologist for of treatment clinic or course pos- right for evaluation surgeon of his orthopedic blockade tial sympathetic for to ob- Id. As surgery.” we are able extremity. sible If upper failed CRPS, visit, may Reckling opined control tain better accept- with the “minimal for Heidtke arthroscopy provide wrist candidate treatment,” Reckling described How- ed debridement. as well as diagnosis and the splint removal Heidtke’s as the uncon- ever, the CRPS is point, severity of the tically] proportion omitted). out of acute most common marks "The untreated, and, sustained,” left injury ”[w]hen include CRPS] [of manifestations clinical may disorder signs findings indic- pain and complaints of intense diagno- Notably, "[a] Id. over worsen time.” dysfunction site autonomic ative of persis- complaints of Later, upon RSD is spontane- sis of based precipitating trauma. tent, impaired pain that intense results occurring pain be associated ously region, coupled with mobility the affected involving region in the affected abnormalities (internal quotation tissue, complaints....” skin, other and bone.” subcutaneous omitted). marks pain reported [characteris- degree of "[T]he hand, 46, weeks,” evaluation Heidtke’s wrist and for “seven id. at causing x-rays new “his fracture compared taken and in a [to] heal[ ] first malunion and ],” And, CRPS [to] worsen[ two id. at 446. x-rays, sets of evaluation of x-rays opined, Woodcock ... Heidtke “[h]ad by an been orthopedic surgeon, and application orthopedic referred to an surgeon within of a padded well “[n]ew and well molded at most several weeks of the time it had splint.” Id. at 437. “In summary,” Reck- *14 become clear recovery that his course was ling opined that “when ... ... Sutton saw considerably atypical, it likely is more than Heidtke on June 17 and on July he not he would have appropriate, received should have known that prob- there awas surely and aggressive treatment, more and lem that required by evaluation an ortho- that he experienced would have either a pedic surgeon, and he either should considerably more benign course or a full acted in that capacity ... referred recovery.” Id. Woodcock effectively Heidtke to an orthopedic surgeon for agreed with Reckling by opining that “[i]n treatment.” Id. at According the absence of referral” [a] to an orthope- Reckling, “Sutton’s treatment ... surgeon evaluation, dic “Heidtke did Heidtke’s fracture the equivalent was of no not receive treatment for his developing treatment.” Id. CRPS ... under Sutton’s care.” Id. at (cid:127) Woodcock, Dr. Jonathan Woodcock. a 447. neurologist by retained Heidtke as an ex- (cid:127) Sander, Dr. Lynn Sander. a board witness, pert opined that it well-ac- was Heidtke, certified by internist retained cepted that key symptom” “the of CRPS opined that complaints “Heidtke’s were “continuous, pain intense pro- out of consistent with known complications of a portion severity to the injury, which radial fracture which include fracture of gets time,” worse rather than bone, better over scaphoid arthritis, disabling car- (internal id. at quotation pal syndrome, tunnel marks omit- radial shortening and ted), “[wjithin angulation deformity range he which limit noted that two weeks motion, pain, chronic non-union and of ... reflex 6/2/08, Heidtke’s fracture on he was (RSD).” sympathetic dystrophy Id. at exhibiting symptom coupled with ede- 454. She opined further that “Sutton’s ma, key CRPS, id., symptom” another lack of light treatment” in of these symp- time,” “both of which worsened over id. toms especially egregious “was because he “[wjhenever Woodcock further opined that knew the risk of complications serious this occurs following peripheral injury, radial fracture virtue of [orthopedic] particularly fracture, a radial pain training, yet he any did not take action to investigated must be thoroughly steps mitigate the multiple risk on occasions.” taken to ensure that CRPS does devel- Id. Like Heidtke’s experts, other two words,” op.” Id. “In other opined, that, essence,” opined Sander “[i]n Heidtke “early, persistent, severe must be tak- “received no medical treatment for his in- en seriously ... ... because early without jury for 7.5 weeks until there was a change it develop ] into CRPS.” intervention in providers.” Id. Id. (emphasis original). in Ill Woodcock noted that in this case early “Heidtke’s symptoms of severe pain Construing all of this evidence in the swelling were worsening they when Heidtke, light most per- favorable to I am expected have been improv- to be suaded that jurors reasonable could have ing,” 446, yet id. at “Sutton left ... found that Sutton was “aware of facts from Heidtke in a sugar tong splint,” at 445- which id. the inference could be drawn that a seven-and-a-half spanning visits three exist[ed].” harm risk of serious
substantial weeks.3 114 S.Ct. Farmer, 511 U.S. (a) med- reviewed particular, testimo- witness expert upon this Based visit from Heidtke’s x-rays records
ical Sut- reasonably find jury could ny, a room, emergency Peaks Spanish effect, care denied ton, completely of a possibility clearly suggested third which of the Heidtke, at the time at least into Heidtke’s extending fracture complex See appointment final (b) Heidtke’s reviewed joint, wrist can that obviousness (noting id. at nota- HCCF, included com- records professional a medical where arise nurs- complaints of Heidtke’s recogniz- tions the face of denies care pletely swelling, pain, increasing ing staff of Alternative- symptoms). and serious able hand, wrist and right in his mobility lack of reasonably find ly, jury could *15 (c) and evaluated met with personally symptoms worsening steadily Heidtke’s during June three occasions on Heidtke to a medical obvious “glaringly so were only 2008, he not July during may be in- that recklessness professional hand, but Heidtke’s wrist words, observed In ferred,” at 283. other Maj. Op. regard- Heidtke directly from also heard find, upon based reasonably could jury a (d) obtained symptoms, and ing Heidtke, by that presented x-ray of Heidtke’s an additional reviewed extraordinary degree “an exhibited Sutton 17, In on June hand wrist and Heidtke to failing to refer by neglect” of that, follow- aware short, was well Sutton for evaluation specialist outside an injury, Heidtke’s initial ing treatment, by Heidtke’s particularly possible worsen, rather 7, to July continued on appointment of the third time Thus, improve. my than at 1232. 439 F.3d Self, reasonably that view, find jury could evi- turn, that persuaded I am In component subjective satisfied Sutton light most dence, in the construed again of Farmer test. al- Heidtke, to was sufficient to favorable “the reasonably find that failed to jury to low a that Heidtke concluding In obviousness, to or referral treatment evidence of need for additional sufficient present i.e., orthopedic an its attention specialist,” most of majority a medical focuses Crum, malunion whether “the question was “obvious.” surgeon, on the Self Cir.2006). ... (10th three were 1227, All in this case onset CEPS F.3d rec- that layman testified even a expert witnesses so obvious of Heidtke’s Maj. Op. at 282. worsening pain and steadily the conditions.” ognize Heidtke’s this “obvi- relied on urgent never obvious and Heidtke has an But swelling established Instead, he layman” standard. for evalua- to a referred for Heidtke ous need that, under the circumstances by orthopedic surgery argues possible tion and a reason- “measure of the proper to do only failed this Sutton not surgeon, yet rather “physician, is a trained man” nothing to address able so, effectively did but train- with no medical lay person the course than symptoms over Heidtke’s that, appoint- the third at time of egregious the last Heidtke on not seen 3. Had Sutton symp- occasion, may been when Heidtke’s my have determination ment words, persuad- am not worsening I im- clearly In other than different. rather were toms reasonably find Sut- jury could ed that no serious proving, Sutton continued take solely deliberately based indifferent ton was cause precise steps to either determine during the took steps he on the symp- to alleviate Heidtke’s problem, or 4 and on June appointments second first and toms. view, But, my particularly it is ing.” Although majority Ross, Paul concedes Aaron Kristin M. Simpsen, that “at times a by Taft, doctor be reckless McAfee & OK, Oklahoma City, Eliza- failing to detect what be glaringly Wood, should beth Scott Taft, Tulsa, McAfee & any professional,” obvious to medical OK, id. for Defendant-Appellee. concludes, it summarily any without expert
mention of Heidtke’s witness testi- LUCERO, Before TYMKOVICH, and mony, that Heidtke cannot prevail even HOLMES, Circuit Judges. under this standard. As I explained,
however, all three expert of Heidtke’s wit- AND ORDER JUDGMENT* that, agreed
nesses based upon symp- presented toms by clearly Heidtke and HOLMES, A. JEROME Circuit Judge. Sutton, observed the need for referral specialist or additional treatment (“Harrison”) Marilyn Harrison chal- would have been any obvious lenges the district court’s grant of sum- professional. light unusually mary judgment to Products, M-D Building strong expert testimony, witness I believe (“M-D”) Inc. on her employment discrimi- it is quite clear presented that Heidtke claims, nation and retaliation and claims of sufficient evidence to survive Sutton’s mo- *16 interference and retaliation based on her tion for summary judgment, and that the rights Family under and Medical district court in concluding erred other- (“FMLA”), Leave Act §§ 29 U.S.C. 2611- wise. jurisdiction 2619. Our under arises §
U.S.C. 1291 and we affirm. alleged Harrison supervisor, her Michael Wargo (“Wargo”), subjected her to a work hostile by yelling environment her about performance, her work giving her Marilyn HARRISON, notices, unwarranted disciplinary Plaintiff- verbally otherwise abusing her. Harrison Appellant, contacted human resources on several oc- complain casions to Wargo’s about behav- PRODUCTS, M-D BUILDING ior but complain did not Wargo was moti- INC., Defendant-Appellee. vated any discrimination in of those No. 11-6333. exchanges. United States of Appeals, Court August Wargo yelled at Harri- Tenth Circuit. son for an period extended of time about Dec. later, her work days and a few during Hall, Melvin Riggs Abney C. Neal another meeting Tur- with Wargo, Harrison lost Lewis, pén Orbison & OK, Oklahoma City, passed consciousness and out. She was Plaintiff-Appellant. for taken to emergency Shortly room. * examining After appellate argument. briefs and rec- oral This order ord, panel unanimously has determined binding precedent, except under the doc- grant parties' request for a judicata, decision trines of law of the res argument. cited, however, the briefs without estoppel. may oral See Fed. collateral It 34(f); 34.1(G). R.App. P. Cir. persuasive 10th R. its value with Fed. consistent case is therefore R.App. ordered submitted without P. 32.1 and 10th Cir. R. 32.1.