## F I L E D United States Court of Appeals Tenth Circuit 

### March 7, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN SELF,

Plaintiff-Appellant,

v. No. 04-1037 PETER CRUM, M.D., Denver County Jail Medical Services,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. NO. 02-F-417 (PAC))
Louis Wilcox (Timothy M. Hurley, Esq., John Baer, H elen Hoopes, Jeff Gillio, and Ted Ongert with him on the court-ordered briefs ) Sturm College of Law at the University of Denver, Federal Appellate Clinic, Den ver, Colorado (with Brian Self on pro-se briefs), for Plaintiff-Appellant. Elizabeth C. Moran, Pryor Johnson Montoya Carney & Karr, P.C., Greenwood Village, Colorado, for Defendants-Appellees.

Before MURPHY , McWILLIAMS , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.2

Brian Self suffered permanent heart damage from a m edical condition that worsened while a prisoner in the Denver County jail . Self sued the prison’s treating physician, Dr. Peter Crum, for deliberate indifference to his medical needs in violation of the Eighth Amendment. Self appeals the district court’s grant of summary judgment in favor of Crum. We agr ee with the district court that Self did not create a genuine issue of materia l fact as to whether Crum either knew about and failed to treat Self’s condition or otherwise consciously disregarded Self’s medical needs. Having jurisdiction under 28 U.S.C. § 1291, we ther efore affirm. I. Background Police in Denver, Colorado arrested Brian Self on M onday, February 28, 2000, and took him to the Denver City jail. That n ight, Self complained of fever, aches, chills, cough, shortness of breath, as well as redness and swelling in his left calf. A prison nurse saw Self the next day. Self attributed his symptoms to a possible bite by a brown recluse spider, which he b elieved happened prior to his
arrest. On Wednesday, March 1, Self was transferred to the Denver County jail, where a second nurse examined him at intake. The n urse noted Self’s various symptoms, including the claim of a spider bite, and referred him to Dr. Peter Crum, a contract physician assigned to the jail. T hat same day, Crum performed a3

focused examination, i.e. a symptoms-based examination limited to the likely source of the problem. Suspecting a respiratory tr act infection, he examined only Self’s ears, nose, throat, and lymph nodes, but didnot listen to Self’s heart. Based on this examination as well as Self’s vital s igns, Crum prescribed aspirin and cough medication to alleviate his fever and cou gh. He also ordered Self to remain in the infirmary for continued observation. Because Self’s symptoms were not particularly specific, Crum could not diagnose a cause of the symptoms other than to exclude the spider bite. That evening, Sel f’s fever responded to the aspirin, falling from 102.5 to 99.8. Crum again examined Self on Friday, March 3. Self’ s symptoms persisted, so Crum continued with the same course of treatment , ordering Self to remain in the infirmary over the weekend. In addition, he (1 ) ordered lab work on Self’s blood and urine, (2) instructed the nursing staff t o check Self’s vital signs every eight hours, and (3) scheduled time to re-evaluate Self on Monday at which time the lab work would be available. Over the weekend, Self’s condition did not improve. An on-call physician, who examined Self over the weekend, suggested he se e Crum on Monday. On Monday, March 6, Crum reviewed Self’s file, noting for the first time Self’s history of cocaine use, and again examined Self. A lthough the lab results were not yet available, Crum listened to Self’s lungs. After hearing what he thought1 The record is unclear as to when Self was transferred from the x-ray

facilities at the hospital to the emergency room. However, at some point after his x-rays were completed, Self was evaluated by hospit al staff and referred to the emergency room. 4 was evidence of pneumonia, Crum prescribed an antib iotic and sent Self to the hospital for x-rays and, if necessary, emergency tr eatment. Self objected to an emergency room referral, but was admonished that if he did not improve by the morning he would again be asked to visit the emerge ncy room. The hospital staff diagnosed Self with a pronouncedheart murmur and a possible bacterial infection of the heart, later id entified as endocarditis. 1 The hospital initially treated Self with antibiotics, b ut eventually concluded that surgery was necessary. On March 10, 2000, Self was transferred to another hospital for repair of his aortic valve. During su rgery, doctors determined they needed to implant a pacemaker. According to Self, the surgeons stated that had the endocarditis been caught earlier, the damage to his heart might have been less severe and, consequently, surgery might have been avoided. Self filed a complaint against Crum for acting with deliberate indifference towards his medical needs in violation of the Eight h Amendment and 42 U.S.C. § 1983. After Self filed his complaint and discove ry had been conducted, Crum filed for summary judgment arguing no genuine issue of disputed fact existed as to whether Crum acted with deliberate indifference in the face of Self’s5

symptoms. The magistrate judge recommended denying the motionbecause she found a disputed issue of material fact as to Crum’s state of mind when he failed to properly diagnose Self’s medical condition. The di strict court, however, rejected the magistrate judge’s recommendation. The court f ound no disputed issue of fact, noting the record did not allow an inference that (1) Crum knew or reasonably believed Self suffered from endocarditis , or (2) Crum deliberately disregarded information which would have led to the discovery of Self’s actual condition.
II. Standard of Review Summary judgment is appropriate in cases where the record discloses “no genuine issue as to any material fact.” Fed. R. Ci v. P. 56(c). In a deliberate indifference case under the Eighth Amendment, we lo ok at the factual record and the reasonable inferences to be drawn from the reco rd in the light most favorable to the non-moving party. Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). The plaintiff must “go beyond the pleadings and des ignate specific facts so as to make a showing sufficient to establish the existence of an element essential to that party’s case in order to survive summary judgment.” Id. “To defeat a motion for summary judgment, evidence, inc luding testimony, must be based on more than mere speculation, conjecture, orsurmise.” Bones v.6

Honeywell Int’l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). “Unsubstanti ated allegations carry no probative weight in summary ju dgment proceedings.” Phillips v. Calhoun , 956 F.2d 949, 951 n.3 (10th Cir. 1992); accord Annett v. Univ. of Kan. , 371 F.3d 1233, 1237 (10th Cir. 2004) (noting that“unsupported conclusory allegations . . . do not create a genuin e issue of fact”) (internal citation and quotation marks omitted).
III. Discussion A. Legal Framework The Supreme Court first recognized claims for delib erate indifference to a prisoner’s medical needs in Estelle v. Gamble , 429 U.S. 97 (1976). The Court held that prison officials violate the Eighth Amend ment’s ban on cruel and unusual punishment if their “deliberate indifferenc e to serious medical needs of prisoners constitutes the unnecessary and wanton in fliction of pain.” Id. at 104 (internal citation and quotation marks omitted). T o prevail on a claim under 42 U.S.C. § 1983, however, “inadvertent failure to pro vide adequate medical care” is not enough, nor does “a complaint that a physician has been negligent in diagnosing or treating a medical condition . . . st ate a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 105, 106. Rather, “a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106.7

The Supreme Court clarified the standards applicabl e to deliberate indifference claims in Farmer v. Brennan , 511 U.S. 825 (1994). In Farmer , the Court set forth a two-pronged inquiry, comprised of an objective and subjective component. Under the objective inquiry, the allege d deprivation must be “sufficiently serious” to constitute a deprivation of constitutional dimension. Id. at 834. In addition, under the subjective inquiry , the prison official must have a “sufficiently culpable state of mind.” Id. In describing the subjective component, the Court m ade clear a prison official cannot be liable “unless the official know s of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substanti al risk of serious harm exists, and he must also draw the inference.” Id. at 837. The subjective component is akin to “recklessness in the criminal law,” where, to act recklessly, a “person must ‘consciously disregard’ a substantial risk of serious harm.” Id. at 837, 839 (quoting Model Penal Code § 2.02(2)(e)). And “[w]h ether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inferenc e from circumstantial evidence.” Id. at 842. The fact that a serious medical need was “obvious” could be evidence of deliberate indifference, although a “prison official may show that the obvious escaped him” and avoid liability. Id. at 843 n.8; see id. at 842–43.8

Our circuit has recently examined deliberate indiff erence claims involving medical treatment in several contexts. In Sealock v. Colorado , 218 F.3d 1205 (10th Cir. 2000), for example, we recognized two types of conduct which may constitute deliberate indifference in a prison medi cal case: (1) a medical professional failing to treat a serious medical con dition properly; and (2) a prison official preventing an inmate from receiving medica l treatment or denying access to medical personnel capable of evaluating the inmate’s condition. Id. at 1211.
In Sealock, we concluded that the subjective component was no t met where a prison nurse misdiagnosed an inmate’s chest pains a s the flu, and failed to recognize symptoms suggesting an impending heart attack. Id. at 1208, 1211, 1212 n.7. Those facts indicated at best, we noted, negligent diagnosis or
treatment. Id. at 1211. We also concluded the subjective componen t might be met where a physician’s assistant failed to summon an ambulance despite candidly admitting that, had he known about the inm ate’s chest pains, he would have done so. Id. at 1211–12. In that instance, we found disputed ev idence as to the assistant’s actual knowledge concerning the inm ate’s chest pains; in other words, the facts supported an inference he knew abo ut the chest pains yet intentionally disregarded his practice of summoning an ambulance. Id. A second recent case also involved a claim of inade quate medical care. In Oxendine v. Kaplan , 241 F.3d 1272 (10th Cir. 2001), we observed that “a prisoner9

who merely disagrees with a diagnosis or a prescrib ed course of treatment does not state a constitutional violation,” id. at 1277 n.7 (internal citations and quotation marks omitted), absent evidence the priso n official “knew about and disregarded a ‘substantial risk of harm’ to [the pr isoner’s] health or safety.” Id.
at 1277. In Oxendine , the prison doctor repaired a severed finger but f ailed to diagnose the onset of gangrene. In finding the evi dence sufficient to satisfy the subjective component and defeat a summary judgment motion, we noted the obviousness of the problem: (1) the repaired tissu e appeared black and was disintegrating, (2) the inmate repeatedly informed the doctor that his finger was not healing, and (3) the doctor himself recognized and noted these symptoms but ignored them. Id. at 1279–80. The court observed that given the obvi ousness of the inmate’s condition, it was clear the case invol ved more than a “mere disagreement between the parties.” Id. at 1277 n.7. We therefore allowed further discovery as to the doctor’s subjective state of mi nd in delaying both additional medical care and referral to a specialist. Finally, in Mata v. Saiz , 427 F.3d 745 (10th Cir. 2005), we held that a prison health official who serves “‘solely . . . as a gatekeeper for other medical personnel capable of treating the condition’ may be held liable under the deliberate indifference standard if she ‘delays or refuses to fulfill that gatekeeper role.’” Id. at 751 (quoting Sealock, 218 F.3d at 1211). We reiterated that the10

subjective component presents a high evidentiary hu rdle to the plaintiffs: a prison official must know about and disregard a substantia l risk of serious harm. Id. at 752. In applying these principles, we allowed a cl aim against a nurse who knew the inmate was suffering from severe chest pains ye t “completely refused to assess or diagnose” the potential cardiac emergencyin violation of prison medical protocols. Id. at 758; see id. at 755–59. However, we denied a claim against a different nurse who established “a good faith effort to diagnose and treat [the inmate’s] medical condition” despite failing to dia gnose a heart attack. Id. at 761; see id. at 760–61. These cases show that the subjective component is n ot satisfied, absent an extraordinary degree of neglect, where a doctor mer ely exercises his considered medical judgment. Matters that traditionally fall within the scope of medical judgment are such decisions as whether to consult aspecialist or undertake additional medical testing. See, e.g. , Ledoux v. Davies , 961 F.2d 1536, 1537 (10th Cir. 1992) (noting that types of medication p rescribed and referrals to specialists are generally matters of medical judgme nt). The Eighth Amendment’s prohibition on cruel and unusual punishment is not violated when a doctor simply resolves “the question whether additional diagnosti c techniques or forms of treatment is indicated.” Estelle , 429 U.S. at 107. A claim is therefore actionable only in cases where the need for additional11

treatment or referral to a medical specialist is ob vious. And obviousness in the circumstances of a missed diagnosis or delayed refe rral, while not subject to a precise formulation, requires direct or circumstant ial evidence that can arise in several different contexts: (1) a medical professio nal recognizes an inability to treat the patient due to the seriousness of the con dition and his corresponding lack of expertise but nevertheless declines or unnecessarily delays referral, e.g. , a family doctor knows that the patient needs delicate hand surgery requiring a specialist but instead of issuing the referral perf orms the operation himself; see,
e.g. , Oxendine , 241 F.3d at 1279; (2) a medical professional fail s to treat a medical condition so obvious that even a layman wou ld recognize the condition,
e.g. , a gangrenous hand or a serious laceration; see id .; and (3) a medical professional completely denies care although presented with recognizable symptoms which potentially create a medical emergen cy, e.g. , a patient complains of chest pains and the prison official, knowing that medical protocol requires referral or minimal diagnostic testing to confirm t he symptoms, sends the inmate back to his cell. See, e.g. , Mata , 427 F.3d at 755–59; Sealock, 218 F.3d at
1211–12. This is not to say that a plaintiff faces insurmoun table obstacles in showing subjective indifference. If a prison doctor, for e xample, responds to an obvious risk with treatment that is patently unreasonable, a jury may infer conscious12

disregard. For that reason, the doctor in Oxendine could be liable for failure to treat a gangrenous finger or the physician’s assist ant in Sealock could be liable for failure to summon an ambulance. But where a do ctor orders treatment consistent with the symptoms presented and then continues to monitor the patient’s condition, an inference of deliberate ind ifference is unwarranted under our case law. In the end, the “negligent failure to provide adequ ate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Perkins v. Kan. Dep’t of Corrections , 165 F.3d 803, 811 (10th Cir. 1999). So long as a medical professional provides a level of care consistent with the symptoms presented by the inmate, absent eviden ce of actual knowledge or recklessness, the requisite state of mind cannot be met. Indeed, our subjective inquiry is limited to consideration of the doctor’s knowledge at the time he prescribed treatment for the symptoms presented, no t to the ultimate treatment
necessary. See Mata , 427 F.3d at 753 (opining that the symptoms presented at the time the physician has contact with the patient is relevant to the subjective inquiry only; objective seriousness is based on the ultimat e harm presented). B. Application Applying these standards, we consider whether Self presented sufficient evidence of both the objective and subjective compo nents of his deliberate13

indifference claim to create a genuine issue of mat erial fact. In particular, Self must surmount two obstacles to avoid summary judgme nt: (1) a showing of the objective seriousness of the medical risk he faced, i.e. , endocarditis; and (2) a showing of Crum’s culpable state of mind. The latt er may be demonstrated by a showing of either Crum’s (a) conscious disregard of a substantial risk of serious harm arising from Self’s symptoms, or (b) actual kn owledge of Self’s heart condition and refusal to order further treatment. Neither party disputes the objective component has been met here. The only question, then, is whether a reasonable jury c ould find either Crum’s conscious disregard or actual knowledge of Self’s s erious medical needs. We discuss each allegation in turn and, in each instan ce, conclude a jury could not find the requisite state of mind. 1. Conscious Disregard While Crum readily admits endocarditis is an object ively serious condition, he denies that he consciously disregarded a substantial risk of harm arising from that condition. He contends, therefore, the distri ct court’s grant of summary judgment was correct. Self argues, in rebuttal, th at he should survive summary judgment because Crum “failed to take sufficient st eps either to diagnose or else to treat that substantial risk of harm.” Appellant ’s Br. at 24. Put another way, Self suggests that a competent doctor looking at Se lf’s symptoms would have14

known that endocarditis was possible and taken addi tional steps to confirm such a diagnosis. The difficulty with Self’s argument, however, is th at it removes the subjective inquiry from the deliberate indifference test. As Farmer v. Brennan and our cases interpreting Farmer have made clear, a “purely objective test for deliberate indifference is simply incompatible” wit h the tenets of the Eighth Amendment. Farmer , 511 U.S. at 839; see Mata , 427 F.3d at 751 (noting that the test for deliberate indifference involves both an o bjective and subjective component). Accordingly, Self must point to some e vidence allowing an inference Crum consciously disregarded the possibil ity of Self’s heart condition. The record does not support such an inference. In this case, Self’s evidence shows that he present ed with a variety of symptoms when he was first examined by Crum on Marc h 1. These nonspecific symptoms included cough, chills, fever, rapid pulse , low blood pressure, as well as swelling and redness in a calf. Recognizing that Self needed medical treatment, Crum provided medication consistent witha respiratory infection by prescribing aspirin and cough syrup to reduce Self’ s fever and coughing. In fact, Self’s fever responded to the medication, falling f rom 102.5 to 99.8. When Crum examined Self again two days later, on March 3, many of the symptoms previously alleviated by the medications h ad returned. Crum again2 Crum did not examine Self over the weekend of Marc h 4–5 because

another physician was on-call. Self was seen by th e on-call physician who ordered him to see Crum on Monday. No Eighth Amend ment claim has been made against the on-call physician. 15 prescribed a course of treatment consistent with re spiratory infection. This time, however, Crum also ordered lab work on Self’s bloodand urine. In addition, he ordered Self to remain in the infirmary and require d prison staff to monitor Self’s vital signs at each staff change. On March 6, Crum examined Self for a third time. 2 Concerned that he was no longer responding to the medications or otherwise improving, Crum listened to Self’s lungs and detected signs of pneumonia. He immediately prescribed an antibiotic and sent Self to the hospital for x-rays to follow up on the diagnosis of pneumon ia. These facts, in the light most favorable to Self, d o not show conscious disregard of Self’s medical needs. Self cannot arg ue he was denied medical treatment. He was not. Rather, his claim is that the course of treatment was inadequate. Self’s symptoms, however, were consist ent with a variety of conditions, including respiratory infection. Indee d, Crum presented testimony from another doctor that Self’s symptoms were consi stent with a respiratory infection, and the treatment Crum provided for this condition was appropriate. Self’s only rebuttal evidence was the notes of a do ctor from the admitting hospital who discovered the heart condition. But nothing inthe assessment conducted by16

the doctor at the hospital, hours if not days follo wing Crum’s examinations, bears on whether Crum consciously disregarded a substanti al risk in treating Self. See
Mata , 427 F.3d at 756 (observing that conscious disregard is determined at the time a medical professional denies care irrespectiv e of whether the inmate ultimately avoided a medical emergency due to subse quent treatment by another medical professional). Thus, the mere possibility that Self’s symptoms cou ld also point to other conditions, including endocarditis, is not sufficie nt to create an inference of deliberate indifference. While Crum may not have appreciated a need for further testing until March 6, the record shows that when p resented with evidence the prescribed treatment regimen for respiratory infect ion was not succeeding or that Self may have contracted pneumonia, Crum sent Self to the hospital. At worst, the evidence shows Crum misdiagnosed Self’s condition. But a misdiagnosis, even if rising to the level of medica l malpractice, is simply insufficient under our case law to satisfy the subj ective component of a deliberate indifference claim. Where a doctor faces symptoms that could suggest either indigestion or stomach cancer, and the doctor mistakenly treats indigestion, the doctor’s culpable state of mind is not established even if the doctor’s medical judgment may have been objectively unreasonable. See Sealock, 218 F.3d at 1211 (finding the subjective component not met when defe ndant merely misdiagnosed17

inmate); Sosebee v. Murphy , 797 F.2d 179 (4th Cir. 1989) (finding no 42 U.S.C

. § 1983 liability where physician diagnosed prisonerwith gastritis and prisoner later died of a punctured esophagus); cf. Mata , 427 F.3d at 758 (noting that defendant did not simply misdiagnose inmate but rather completely refused to diagnose inmate). Here, nothing suggests that Self’s symptoms obviously required unusual medical skill or ability thus nece ssitating referral, or that Crum otherwise failed to provide a course of treatment c onsistent with the symptoms he recognized. Self nonetheless argues two disputed issues of factremain, which, if proven, demonstrate Crum consciously disregarded a substantial risk of harm: (1) Crum failed to listen to Self’s heart, and (2) Crum knew Self was an intravenous drug user, a risk factor for endocardit is. While those assertions may be true, they do not create an inference of deliber ate indifference. Self has presented nothing to suggest Crum’s failure to cond uct a heart examination when he suspected respiratory problems so grossly violat es medical norms as to suggest deliberate indifference. His decision to conduct afocused examination and not to listen to Self’s heart is a classic medical judgmen t we ordinarily will not secondguess. See Estelle , 429 U.S. at 107. Nor does he present any evidenc e suggesting Crum would have altered his treatment or diagnosis if he had known Self was an intravenous drug user. Self’s intravenous drug use , while a risk factor for18

endocarditis, would no more positively identify Sel f’s ailment than the other nonspecific symptoms would. A treating physician’s failure to connect-the-dots is by itself insufficient to establish a culpable stat e of mind. Crum’s failure to connect-the-dots distinguishes hi s conduct from the conduct described in Sealock . Both here and in Sealock, the medical professional acknowledged he would refer a patient under certain circumstances to the hospital. Crum thus conceded he would send a patie nt to the emergency room if he thought endocarditis was possible; the physician ’s assistant in Sealock admitted he would automatically order an ambulance if a patient presented with chest pain. 218 F.3d at 1211. We found a disputed issue of fact in Sealock because the physician’s assistant arguably had know ledge of the very symptom,
i.e. chest pain, for which he stated he would refer a patient. And the reason why the physician’s assistant would refer a patient with chest pain is exactly because such symptom obviously presents the possibility of a heart attack. Id. at 1211–12. To the contrary, Crum knew only that Self suffered from a variety of nonspecific symptoms. These vague symptoms, neither individual ly nor collectively, obviously pointed to endocarditis. Only when the s ymptoms obviously point to a substantial risk of harm can we draw an inference o f the medical professional’s conscious disregard of an inmate’s medical emergenc y. See Oxendine , 241 F.3d
at 1279–80.19

In sum, a reasonable jury could not infer conscious disregard either from Crum’s missed diagnosis or Crum’s failure to conduc t further testing. While Crum’s medical judgment may constitute negligence o r medical malpractice, it would amount to mere speculation to conclude Crum h ad a culpable state of mind. Summary judgment requires more than mere speculatio n. It requires some evidence , either direct or circumstantial, that Crum knew a bout and consciously disregarded the risk. Bones v. Honeywell Int’l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004)

. And as the Supreme Court has observed, an “offici al’s failure to alleviate a significant risk that he should have perceived bu t did not, while no cause for commendation, cannot under our cases be condemned a s the infliction of punishment.” Farmer , 511 U.S. at 838. 2. Actual Knowledge Self also argues that a jury could conclude Crum “a ctually diagnosed a potential heart problem,” but ignored it. Appellan t’s Br. at 24. This argument is based on allegations that (1) Crum altered the date of his treatment notes to reflect March 1 instead of March 6; (2) his notes f ailed to provide any contemporaneous diagnosis; (3) his notes repeated o nly of a portion of the information from the nurse’s notes; (4) Crum knew S elf was an intravenous drug user prior to March 6; and (5) Crum listened to Sel f’s lungs, so he must have listened to his heart. We disagree.3 Indeed, the course of Crum’s treatment is evidence of his thoughts

regarding diagnosis, and the evidence shows Crum su spected a respiratory tract infection. 20 These allegations suffer from the same infirmity di scussed above—they rest solely on speculation and conjecture; as such, theycannot support an inference of actual knowledge. Crum explained in his depositionthat (1) a typographical error during transcription caused the erroneous date to appear on his notes; (2) he could not make a diagnosis prior to March 6 because he ha d not yet isolated the cause of the symptoms; 3 (3) he was unaware of Self’s drug use; and (4) he conducted a focused exam for a respiratory ailment and therefor e did not listen to Self’s heart. In response, Self offers no testimony of the nurse as to what she told Crum or saw him do, no affidavit that Crum actually listened to Self’s heart, nor any expert report as to the significance of Self’s drug use. Inferences supported by conjecture or speculation will not defeat a motion for summary judgment. Phillips v. Calhoun , 956 F.2d 949, 951 n.3 (10th Cir. 1992) (noting th at “[u]nsubstantiated allegations carry no probative w eight” in summary judgment proceedings). In short, the record is undisputed that Crum did no t know that Self suffered from endocarditis. And even if Crum had the facts before him to know Self suffered from a heart condition (and no evidence supports such an inference), Self has not presented any evidence to show that Crum ac tually “dr[ew] the inference”21

that the cause of Self’s symptoms was a condition o ther than he suspected

. Farmer , 511 U.S. at 837. It is simply insufficient that the doctor “knew the underlying facts but believed (albeit unsoundly) th at the risk to which the facts gave rise was insubstantial or nonexistent.” Id. at 844. Accordingly, we agree with the district court that Self has not produced sufficient evidence to defeat summary judgment.
IV. Conclusion Although the record presented by Self may create a question of fact regarding Crum’s negligence in treating Self, a que stion not presented here, Self fails to overcome the evidentiary hurdle for a deli berate indifference claim. Accordingly, the district court did not err in gran ting summary judgment. We therefore affirm.