UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CHESTER LEE RENEAU, Plaintiff - Appellant,

v. MARY CARDINAS, in her individual capacity; JUDY BRIZENDINE, in her individual capacity; DOCTOR LOUIS CABILING, in his individual capacity; RICK RAEMISCH, Exec utive Director, in his individual and o fficial capacities, Defendants - Appellees. No. 20-1220 (D.C. No. 1:17-CV -02595-PAB-SKC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and CARSON , Circuit Judges.

________________ _________________ Chester Lee Reneau, proceed ing pro se, appeals from th e district court’s grant of summary judgment to prison nurse Mary Cardinas and prison doctor Louis Cabiling in his 42 U.S. C. § 1983 civil rights suit. 1 Exercising jurisdiction

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Mr. Reneau does not challenge the judgm ent with regard to other defendants. FILED United States Court of Appeals Tenth Circuit 

### March 31, 2021 Christopher M. Wolpert Clerk of Court2 under 28 U.S.C. § 1291, we affirm the gr ant of summary judgment to Dr. Cabiling, but we reverse and remand for further pro ceedings on Mr. Reneau’s claim against Nurse Cardinas. BACKGROUND 2
Mr. Reneau is an inmate in the Co lorado Department of Corrections. On Wednesday, March 8, 2017, he slipped while climbing down the ladder from his bunk bed at Crowley County Correctional Facility. He fell against the metal seat and table affixed to the wall, injuring hi s left shoulder, his left leg, and his right wrist. His wrist was merely bruised, but as it turned out, Mr. Reneau had torn his rotator cuff and fractured the fibula bone in his leg. At first, Mr. Reneau did not think he was too injured, a nd he went to breakfast. But then he started feeling pain and noticed bruising. Mr. Reneau declared a medical emergency and reported to the medical clin ic, where Nurse Cardinas was on duty. When the nurse called him into the examination room, he told her about his fall. He “showed [her] a large bruise wi th swelling on his left leg, a large bruise with swelling on his left shoulder, and a brui se on his right wrist.” R. at 42. He “explained to [her] that his left leg and his left shoulder were in severe pain and that he could not lift his

2 We recite the facts in the light most favorable to Mr. Reneau. See Self v. Crum , 439 F.3d 1227, 1230 (10th Cir. 200 6). The defendants relied only on Mr. Reneau’s deposition testimony. As the magistrate judge noted in his report and recommendation, however, the amended complaint was signed under penalty of perjury, and thus it also serves as evidence, see Howard v. Waide , 534 F.3d 1227, 1230 n.2 (10th Cir. 2008).3 left arm or move his left foot.” Id. And he said that it felt like something in his shoulder was injured and someth ing in his leg was broken. Nurse Cardinas asked Mr. Reneau what he would like her to examine. He said, “I would like to have my wrist examined, my le g examined, and my shoulder examined.” Id. at 156. She responded, “Well, it’s not going to work that way,” id. , which Mr. Reneau understood to mean th at she would examine only one injury during the visit, and she was making hi m choose which one. Becoming upset, Mr. Reneau told her that if she did not examine all his injuri es, he would file a § 1983 suit against her. Instead of ex amining any of Mr. Reneau’s injuries, Nurse Cardinas called a securi ty guard and sent Mr. Reneau back to his unit for being uncooperative. Mr. Reneau waited a few days to make sure Nurse Cardin as was not on duty, then returned to the medi cal unit on two consecutive days, on or about March 12 and 13. During one visit, the nurse(s) then on dut y (not party to this litigation) examined his leg, and during the other, his shoulder. X-rays were requested but not taken until Wednesday, March 15, because the prison takes X-rays only once a week. When read on Friday, March 17, the X-rays showed nothing with regard to Mr. Reneau’s shoulder but confirmed his leg fracture. That same day, his leg was put in a temporary cast for the weekend. On Monday, March 20, Mr. Reneau sa w Dr. Cabiling for the first time. Dr. Cabiling replaced the temporary cast wi th a permanent cast, but he rejected Mr. Reneau’s request for an MRI of his shoulder, instead sendi ng him for a second4 set of X-rays. In April or May of 2017, Dr. Cabiling also gave Mr. Reneau a cortisone shot for his shoulde r, which helped him move hi s arm “a little bit better for . . . three to four months.” Id. at 169. Mr. Reneau was transferred to a different prison, out of Dr. Cabiling’s care, in February 2018. In September 2019, an MRI of his shoulder revealed one definite and one probable tear. A doctor recommended surgery in February 2020. Mr. Reneau filed suit under § 1983, al leging Nurse Cardinas and Dr. Cabiling violated the Eighth Amendment by exhibiti ng deliberate indifference to his serious medical needs. After discovery, the defendants moved for summary judgment, arguing that Mr. Reneau failed (1) to pres ent evidence that Nurse Cardinas knew of the seriousness of his medical needs, a nd (2) to show that his claim against Dr. Cabiling was anything more than a disa greement about the type and course of medical treatment provided. The magistrate judge recommended gr anting the defendants’ motion as to Dr. Cabiling, stating that Mr. Reneau’s arguments established nothing more than a disagreement with Dr. Cabiling’s course of treatment. But he recommended denying the defendants’ motion as to Nurse Cardin as because a reasona ble factfinder could conclude that, having seen Mr . Reneau’s injuries and hear d his reports of pain, she chose to ignore a substantial risk of serious harm by refu sing to examine him. Both sides objected to portions of th e report and recommendation. The district court adopted the recommenda tion as to Dr. Cabiling. It rejected the recommendation to allow the case agai nst Nurse Cardinas to proceed, however,5 holding that Mr. Reneau had failed to pres ent evidence to show that Nurse Cardinas actually drew an inference of serious harm. Mr. Reneau now appeals. DISCUSSION I. Legal Standards We review the district court’s gr ant of summary judgment de novo. See Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). Summary judgment is appropriate when “the movant shows th at there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matt er of law.” Fed. R. Civ. P. 56(a). We construe Mr. Re neau’s pro se filings liberally, but we do not act as his lawyers. See Hall v. Bellmon , 935 F.2d 1106, 11 10 (10th Cir. 1991).
In Estelle v. Gamble , the Supreme Court held that prison officials’ “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. ” 429 U.S. 97, 104 (1976) (citation and internal quotati on marks omitted). An Eighth Amendment medical-needs inquiry has two prongs , one objective and one subjective. See Farmer
v. Brennan , 511 U.S. 825, 834 (1994). Under th e objective prong, the deprivation must be “sufficiently serious.” Id. (internal quotation marks omitted). And under the subjective prong, the official must have a “sufficiently culpable state of mind.” Id. (internal quotation marks omitted). For purposes of summary judgment, th e defendants did not contest whether Mr. Reneau’s injuries were sufficiently serious to satisf y the objective prong. Thus,6 we need examine only the subjective prong. In prison-conditions cases, the required “state of mind is one of de liberate indifference to inma te health or safety.” Id. (internal quotation marks omitted). In this context, a prison official cannot be liable “unless the official knows of and disregards an excessive risk to inmate health or safety; the official must bot h be aware of facts from wh ich the inference could be drawn that a substantial risk of serious harm exists, a nd he must also draw the inference.” Id. at 837. II. Claim Against Nurse Cardinas Mr. Reneau’s claim against Nurse Cardinas arises out of her failure to examine his injuries on March 8, 2017, thus delayi ng the necessary treatment (such as X-rays and casting of his leg) and causing him to suffer unnecessary pain. Mr. Reneau argues that the district court construed th e facts in the light most favorable to Nurse Cardinas, rather than to Mr. Reneau, and that it erred in requiring him to present evidence that Nurse Ca rdinas drew an inference of substantial harm. He asserts that if she l acked knowledge of his medical ne eds, it was because she refused to examine him. Nurse Cardinas had a dual role: she wa s not only a medical provider, but also the gatekeeper for more advanced medical providers, such as the prison doctor(s). “A prison medical professional who serves so lely 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 refu ses to fulfill that gatekeeper role.” Mata v. Saiz , 427 F.3d 745, 751 (10th Cir. 2005) (e llipsis and internal quotation marks7 omitted)). “An inmate need not show that a prison offici al acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 752 (internal quotation marks omitted). “Whether a prison official had the requisite knowledge of a substan tial risk is a question of fa ct subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison offi cial knew of a substantial risk from the very fact that the risk was obvious.” Id. (internal quotation marks omitted) . “This is so because if a risk is obvious so that a reasonable man would realize it, we might well infer that the defendant did in fact realize it.” Id. (brackets and internal quotation marks omitted). Viewed in the light most favorable to Mr. Reneau for purposes of summary judgment, the undisputed facts are that Mr. Reneau told Nu rse Cardinas that he had fallen, showed her bruising and swelling on his leg and shoulder, told her he was in severe pain and could not lift his left arm or move his left foot, and told her that it felt like something in his shoulder was inju red and something in his leg was broken. Nurse Cardinas then communi cated to him that she woul d not examine all of his injuries during the visit and asked him to choose which injury she would examine. 3

3 Before the district court, the defenda nts asserted that Nu rse Cardinas asked which injury she should examine “first.” R. at 142, 146, 332, 335. But the defendants’ motion for summary judgment re lied solely on Mr. Reneau’s testimony, and Mr. Reneau never testified that Nurs e Cardinas asked whic h injury she should examine “first.” Rather, he consistently asserted that sh e declined to examine all his injuries during the visit, and she directed him to choose which injury she would8 When he became upset at being denied assessm ent of all his injuries and told her that he would file a § 1983 action against her if she did not ex amine all his injuries, she called security and had him removed from th e medical clinic without examining any of his injuries. These facts, if believe d by a factfinder, sufficiently establish the subjective prong of the Eighth Amendment. A prisoner has a constitutional right to medical care for his serious medical needs. See Estelle , 429 U.S. at 103-04. It follows that if a prisone r suffers multiple serious injuries, he has a ri ght to medical treatment for each such injury. The facts recited by Mr. Reneau, if believed, establish that at the outset of the March 8 visit, Nurse Cardinas refused or decl ined to examine all of Mr. Re neau’s asserted injuries. Further, Nurse Cardinas sent him back to his cell without examining him and without providing so much as an as pirin, despite his complaints of severe pain and the evident bruising that he showed her. A re asonable factfinder coul d conclude that she failed to perform her duties to provide medical attention, to ascertain whether any of Mr. Reneau’s injuries require d more advanced medical care, and to refer him for such

care. See Burke v. Regalado , 935 F.3d 960, 994-95 (10th Cir. 2019) (holding that evidence established an Eighth Amendmen t violation where nurse declined to examine inmate suffering pa ralysis who later died); Mata , 427 F.3d at 755-56, 758 (reversing summary judgment in favor of nurse who declined to provide any

examine. Before this court, the defenda nts have elected not to continue their district-court argument, but instead rec ognize that “the evidence is undisputed Ms. Cardinas informed Plaintiff she could only examine one injury.” Aplee. Br. at 17.9 treatment to inmate suffe ring severe chest pain); Sealock , 218 F.3d at 1210-11 (reversing summary judgment in favor of officer who failed to call for medical assistance when inmate suffe red severe chest pains); id. at 1211-12 (reversing summary judgment in favor of a physician’ s assistant, where th e evidence left open the possibility that he was in formed of inmate’s chest pa in but failed to summon an ambulance); see also Al-Turki v. Robinson , 762 F.3d 1188, 1194 (10th Cir. 2014) (noting, in considering qualified immunity, that it is clearly establis hed in this circuit that “a deliberate indifference claim will arise when a medical professional completely denies care although presen ted with recognizable symptoms which potentially create a medical emergency, . . . and the prison official, knowing that medical protocol requires referral or mi nimal diagnostic test ing to confirm the symptoms, sends the inmate back to his cell” (internal quotation marks omitted)). Nurse Cardinas asserts that “although the evidence in the summary judgment record may demonstrate [she] was aware of f acts to draw the infe rence that Plaintiff was injured, . . . there is no evidence in the summary judgment record to suggest [she] actually drew the inference a substan tial risk of harm existe d as to Plaintiff and then disregarded that risk.” Aplee. Br. at 15-16. She notes that before she could conduct an examination, Mr. Reneau became upset and was escorted out. A reasonable factfinder, however , could conclude that be fore their disagreement, Mr. Reneau presented Nurse Cardinas with su fficient facts to esta blish that there was an obvious substantial risk to him of serious injury. When apprised of the underlying circumstances (a fall off a la dder), and the results (bruising, swelling, severe pain, an10 inability to move appendages, and a feeling that something in the area was broken or torn), the possibility of a serious injury would be obvi ous even to a layperson. From the circumstantial evidence, a reasonable factfinder ther efore could conclude that Nurse Cardinas actually drew the inference of a substantial risk of serious harm. See Farmer , 511 U.S. at 842; Mata , 427 F.3d at 752. 4 Moreover, Nurse Cardinas cannot rely on her own failure to conduct an examination to conclusively es tablish that she did not in fa ct draw the inference that Mr. Reneau had suffered serious injuries. See Mata , 427 F.3d at 752 (“An official would not escape liability if th e evidence showed that he merely refused to verify underlying facts that he st rongly suspected to be true , or declined to confirm inferences of risk that he strongly susp ected to exist.” (internal quotation marks omitted)). And viewing th e evidence in Mr. Reneau’s favor, he became upset because he perceived that Nurs e Cardinas was refusing to ex amine all of hi s injuries. It is a reasonable inference that, had she assured him she would in fact examine all his injuries, the examination would have pr oceeded without further incident.
In Mata , we stated that “[a] prisoner ma y satisfy the subjective component by showing that defendants’ de lay in providing medical treatment caused either

4 Of course, “the obviousness of a risk is not conclusi ve and [Nurse Cardinas] may show that the obvi ous escaped [her].” Farmer , 511 U.S. at 843 n.8; see also id. at 844 (“[I]t remains open to th e officials to prove that they were unaware even of an obvious risk to inmate health or safety. That a trier of fact may infer knowledge from the obvious, in other words, doe s not mean that it must do so .”). “[K]ey facts remain in dispute and nothing we say should be ta ken as suggesting liability must attach after they are sorted out at trial.” Blackmon v. Sutton , 734 F.3d 1237, 1246 (10th Cir. 2013).11 unnecessary pain or a worsening of [his] condition.” Id. at 755. At a minimum, Mr. Reneau left the clinic on March 8 w ith a fractured fibula bone, and without any pain-relieving medication. It is a reasonable inference th at he suffered pain from his broken bone until he received tr eatment several days later. Further, the prison did not take X-rays until March 15. As the ma gistrate judge noted, the record indicates that the prison takes X-rays once a week. It is a re asonable inference that had Nurse Cardinas examined Mr. Reneau on th e morning of Wednesday, March 8, he would not have had to wait until Wednesday, March 15, fo r X-rays and until Friday, March 17, for a temporary cast. 5 It thus is a reas onable inference that Nurse Cardinas’s failure to examine Mr. Reneau on March 8 caused an unnecessary delay in treating hi s fractured fibula. For these reasons, we reverse th e grant of summary judgment to Nurse Cardinas and remand for further proceedings. III. Claim Against Dr. Cabiling The district court held that Mr. Ren eau’s disagreement with Dr. Cabiling’s course of treatment failed to establish that the doctor was deliber ately indifferent to Mr. Reneau’s medical needs. Mr. Reneau argues that his claim is not merely a disagreement with Dr. Cabiling’s medical judgment because (1) Dr. Cabiling “chose to pursue an easier less efficacious course of medical treatment,” which “states a

5 The defendants assert that “[a] tem porary cast was put on Plaintiff’s leg the same week as his fall.” Aplee. Br. at 4. That is incorrect. The undisputed facts are that Mr. Reneau was injured on Wednesday , March 8, and the temporary cast was applied nine days later on Friday, March 17.12 valid Eighth Amendment claim,” Aplt. Openi ng Br. at 12; (2) Dr. Cabiling’s response was not a reasonable treatment for a torn rotator cuff; and (3) Dr. Cabiling denied him access to an orthopedic specialist capa ble of evaluating the need for surgery. It is well-established that “a prisoner who merely disa grees with a diagnosis or a prescribed course of treatment does not state a constitutional violation, absent evidence the prison official knew about and di sregarded a substantial risk of harm to the prisoner’s health or safety.” Self v. Crum , 439 F.3d 1227, 1231 (10th Cir. 2006) (brackets, citation, and inte rnal quotation marks omitted) . “Where the necessity for treatment would not be obvious to a lay person, the medical judgment of the physician, even if grossly ne gligent, is not subject to s econd-guessing in the guise of an Eighth Amendment claim.” Mata , 427 F.3d at 751; see also Estelle , 429 U.S. at 106 (“Medical malpractice doe s not become a constitutiona l violation merely because the victim is a prisoner.”). As particularly relevant he re, “the question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter fo r medical judgment. A medical decision not to order an X-ray, or like measures, does not repr esent cruel and unusua l punishment.” Estelle , 429 U.S. at 107; see also Ledoux v. Davies , 961 F.2d 1536, 1537 (10th Cir. 1992) (noting that types of medica tion prescribed and referrals to specialists are generally matters of medical judgment). It is correct that “[i]f a prison doctor . . . responds to an obvious risk with treatment that is patently unreasonable, a jury may infer conscious disregard.” Self , 439 F.3d at 1232. But this t ype of “claim is . . . actiona ble only in cases where the13 need for additional treatment or referral to a medical specialist is obvious,” such as when a medical professional (1 ) “recognizes an inability to treat the patient due to the seriousness of the condition an d his corresponding lack of expertise but nevertheless declines or unnecessarily dela ys referral”; (2) “f ails to treat a me dical condition so obvious that even a layman would rec ognize the condition”; or (3) “completely denies care although presented with recogni zable symptoms whic h potentially create a medical emergency.” Id. The record does not establish that any of these situations occurred here. The record contains no evidence that Dr. Cabiling was unable to treat Mr. Reneau’s shoulder or that the injury to his shoulder was so obvious that even a layman would recognize a rotator cuff tear . Moreover, Dr. Cabiling provided some treatment, which gave Mr. Re neau some relief from pain for a matter of months. And the record contains no evidence to support Mr. Reneau’s assertions that Dr. Cabiling’s course of action was dictated solely by cost consider ations or that his treatment was patently unreasona ble in the circumstances. See id. at 1235 (“Summary judgment requires more than mere speculation. It requires some evidence , either direct or circumstantial, that [the practitioner] knew about and consciously disregarded the risk.”). For these reasons, we affirm the grant of summary judgment to Dr. Cabiling. CONCLUSION Mr. Reneau’s motion to proceed without prepayment of costs and fees is granted. The district court’s grant of summary judgment to Nurse Cardinas is14 reversed and remanded for further procee dings. The remainder of the judgment is affirmed.

Entered for the Court
Gregory A. Phillips Circuit Judge