UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ROBERT LANDON, 

 Plaintiff - Appellant, 

v. 

HOLLY BLUMER, Nurse, BCCF Medical 

Dept., 

 Defendant - Appellee, 

and 

CORRECTIONAL HEALTH PARTNERS 

C.H.P., TIMOTHY ROLAND BROWN, 

M.D. 

 Defendants. 

No. 20-1123 

(D.C. No. 1:18-CV-01588-KLM) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges. 

_________________________________ 

Plaintiff Robert Landon, a federal inmate appearing pro se, laid down on his 

bed to watch television when a sewing needle embedded in his sheets stuck him the 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 4, 2020

Christopher M. Wolpert 

Clerk of Court
2 

back.1

 When he pulled the needle out of his back, a portion of the needle broke off 

and remained in his body. Although Plaintiff eventually had surgery to remove the 

needle, an infection developed, and he now finds himself in a wheelchair. Among 

others, Plaintiff sued one of the prison nurses, Holly Blumer, for deliberate 

indifference to his medical needs in violation of the Eighth Amendment. Plaintiff 

appeals the district court’s grant of summary judgment in favor of Defendant 

Blumer.2

 We agree with the district court that Plaintiff did not create a genuine issue 

of material fact as to whether Defendant Blumer consciously disregarded his medical 

needs. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm. 

I. 

 On “blanket day”—the day inmates send their blankets to laundry—Plaintiff 

made his bed with a freshly-laundered blanket. He laid down on his bed and then 

propped himself up. While doing so, a sewing needle jammed in his back. Plaintiff 

tried to pull the needle from his back, but when he did, the needle broke. Plaintiff 

informed a corrections officer of his problem and she allowed him to go to medical 

for an assessment. 

Nurse Lon Lowery initially examined Plaintiff. His notes recount that Plaintiff 

did not see the needle in one piece and did not know if the needle was broken prior to 

1

 Because Defendant is proceeding pro se, we review his pleadings and filings 

liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972). 

2

 We grant Plaintiff’s motion to proceed in forma pauperis on appeal but 

remind him of his obligation under 28 U.S.C. § 1915(b)(1)–(2) to continue making 

partial payments until he has paid his filing fee in full. 
3 

sticking Plaintiff. Plaintiff further described his pain level as a two on a scale of ten. 

During this time, Defendant Nurse Blumer—according to Plaintiff, the charge nurse 

that day—stepped into the examination room. Plaintiff asserts that Blumer looked at 

his back, noted the absence of blood, tapped the end of the needle, and said that the 

broken needle was the object that punctured his back. Blumer then left the room. 

Lowery did not observe any portion of the sewing needle in Plaintiff’s back. 

Lowery, however, contacted a doctor who ordered an x-ray that an assistant 

scheduled for the next morning. The x-ray revealed that Plaintiff did, in fact, have a 

foreign object in his back. The prison sent him to a nearby emergency room the same 

day as the x-ray. Because the needle was too deep to easily remove, the hospital 

scheduled a consultation with a surgeon for eleven days later. Just shy of two months 

following the consultation, Plaintiff had surgery to remove the needle. 

Unfortunately, Plaintiff’s wound became infected and Plaintiff needed an additional 

surgery, which he had six months later. An MRI taken over a year after the second 

surgery indicated a metallic substance remained in his back. Plaintiff is now 

wheelchair-bound. 

Plaintiff filed this civil action against his surgeon, Correctional Health 

Partners, and Blumer. The district court initially dismissed the claims against the 

doctor and Correctional Health Partners as legally frivolous but allowed the claim 

against Blumer to proceed. Plaintiff contended that Blumer violated his rights by 

failing to “call the provider, like she should have, and initiate thing[s].” He believes 

that Blumer should have taken charge and sent him to the emergency room 
4 

immediately. He contended that if Blumer had sent him to the emergency room the 

afternoon of his injury, the needle would not have traveled as far into his body as it 

did. The district court granted summary judgment for Blumer, stating that Plaintiff 

did not provide sufficient evidence to prove a constitutional violation. Specifically, 

the district court held that Plaintiff’s need for additional immediate medical treatment 

was not obvious the day of his injury and, at most, the evidence demonstrated 

inadvertent or negligent failure to provide appropriate medical care. The district 

court noted no evidence supported Plaintiff’s assertion that the twenty-four-hour 

delay between his examination in the prison and his examination in the emergency 

room resulted in substantial harm he would not have otherwise endured. Plaintiff 

now appeals the summary judgment ruling. 

II. 

 “We review de novo a district court’s grant of summary judgment” and 

“must view the factual record and make reasonable inferences therefrom in the light 

most favorable to the party opposing summary judgment.” Bird v. West Valley City, 

832 F.3d 1188, 1199 (10th Cir. 2016). We uphold the district court’s grant of 

summary judgment if “there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To defeat 

a motion for summary judgment, evidence, including testimony, must be based on 

more than mere speculation.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 

(10th Cir. 2004). “Unsubstantiated allegations carry no probative weight in summary 

judgment proceedings.” Phillips v. Calhoun, 956 F.2d 949, 950 n.3 (10th Cir. 1992). 
5 

III. 

Prison officials “violate the Eighth Amendment’s ban on cruel and unusual 

punishment if their ‘deliberate indifference to serious medical needs of prisoners 

constitutes the unnecessary and wanton infliction of pain.’” Self v. Crum, 439 F.3d 

1227, 1230 (10th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A 

prisoner “must allege acts or omissions sufficiently harmful to evidence deliberate 

indifference to serious medical needs.” Estelle, 429 U.S. at 106. Negligence is not 

enough. Self, 429 F.3d at 1230. We analyze Plaintiff’s claim under the familiar twopronged inquiry first set forth in Farmer v. Brennan, 511 U.S. 825 (1994). “Under 

the objective inquiry, the alleged deprivation must be ‘sufficiently serious’ to 

constitute a deprivation of constitutional dimension.” Self, 429 F.3d at 1230. And 

“under the subjective inquiry, the prison official must have a ‘sufficiently culpable 

state of mind.’” Id. at 1230–31. For purposes of the subjective component, a prison 

official “cannot be liable ‘unless the official knows 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 substantial risk of serious harm exists, and he 

must also draw the inference.’” Id. at 1231 (quoting Farmer, 511 U.S. at 837). 

Absent an “extraordinary degree of neglect,” a Plaintiff does not meet his 

burden of satisfying the subjective component. Id. at 1232. Therefore, a claim is 

“actionable only in cases where the need for additional treatment or referral to a 

medical specialist is obvious.” Id. Although “not subject to a precise formulation,” 

we have recognized at least three contexts in which obviousness in the circumstances 
6 

of a missed diagnosis or delayed referral may arise. Id. Relevant here is the situation 

where “a medical professional completely denies care although presented with 

recognizable symptoms which potentially create a medical emergency, e.g., a patient 

complains of chest pains and the prison official, knowing that medical protocol 

requires referral or minimal diagnostic testing to confirm the symptoms, sends the 

inmate back to his cell.” Id. 

Ultimately, the “negligent failure to provide adequate 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 evidence of actual knowledge or recklessness, the 

requisite state of mind cannot be met.” Self, 439 F.3d at 1233. 

Blumer concedes the objective seriousness of the medical risk Plaintiff faced. 

So, applying the above standards, we consider whether Plaintiff presented sufficient 

evidence of the subjective component of his deliberate indifference claim to create a 

genuine issue of material fact—specifically, a showing of Blumer’s culpable state of 

mind. Plaintiff may demonstrate this by showing either Blumer’s conscious 

disregard of a substantial risk of serious harm arising from Plaintiff’s symptoms or 

actual knowledge of Plaintiff’s condition and refusal to order further treatment. Id. 

As mentioned above, when Plaintiff visited the medical unit, he presented 

them with a sharp object, his back was not bleeding, and his pain level was low. 
7 

Even though the nurses did not send him to the emergency room immediately, one of 

them contacted a doctor who ordered Plaintiff an x-ray for the next day. 

These facts, viewed in the light most favorable to Plaintiff, do not show 

conscious disregard of Plaintiff’s medical needs. Blumer did not deny Plaintiff 

medical treatment. His claim is that the course of treatment was inadequate. 

Plaintiff stated in his deposition that an emergency room nurse told him that if he 

would have come in the day before, they “probably could have got it out, but it’s 

done went down too far.” But this statement does not bear on whether Blumer 

consciously disregarded a substantial risk in treating Plaintiff. See Self, 439 F.3d at 

1234 (noting that a later medical assessment does not go to whether a previous 

medical professional consciously disregarded a substantial risk in treating a patient). 

The nurses at the prison, at worst, misdiagnosed Plaintiff’s condition. “But a 

misdiagnosis, even if rising to the level of medical malpractice, is simply insufficient 

under our case law to satisfy the subjective component of a deliberate indifference 

claim.” Id. Nothing in the record suggests that Plaintiff’s symptoms obviously 

necessitated an immediate transfer to the emergency room or that Blumer failed to 

provide a course of treatment consistent with Plaintiff’s symptoms. Indeed, during 

that same visit, a nurse contacted a physician who instructed him to schedule an x-ray 

for the next day. 

A reasonable jury could not infer a conscious disregard of substantial risk from 

Blumer’s missed diagnosis or her failure to send him to the emergency room right 

away. The nurses certainly did not send Plaintiff back to his cell with an outright 
8 

dismissal of his complaint. As mentioned above, Nurse Lowery, the nurse caring for 

Plaintiff, contacted a physician. And that physician ordered an x-ray that occurred 

the next morning. Even if the delay rose to negligence or medical malpractice, we 

would be speculating to conclude that Blumer had a culpable state of mind. And 

summary judgment “requires more than mere speculation.” Id. at 1235. Indeed, it 

“requires some evidence, either direct or circumstantial, that [Blumer] knew about 

and consciously disregarded the risk. Id. 

Additionally, we do not see any evidence in the record that can support an 

inference of actual knowledge that Blumer knew a portion of a needle was still in 

Plaintiff’s back. 

Although the record may create a question of fact that Blumer’s treatment of 

Plaintiff was negligent, that question is not before us. Plaintiff fails to overcome the 

evidentiary hurdle for a deliberate indifference claim. We thus conclude the district 

court did not err in granting summary judgment. 

AFFIRMED. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge