UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ROBERT LANDON, Plaintiff - Appellant,

v. HOLLY BLUMER, Nurse, BCCF Medical Dept., Defendant - Appellee, and
CORRECTIONAL HEAL TH 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 need le embedded in his sheets stuck him the

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### September 4, 2020 Christopher M. Wolpert Clerk of Court2 back. 1 When he pulled the needle out of hi s back, a portion of th e needle broke off and remained in his body. Although Plain tiff 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 pris on nurses, Holly Blumer, for deliberate indifference to his medical needs in viola tion of the Eighth Amendment. Plaintiff appeals the district court’s grant of su mmary judgment in favor of Defendant Blumer. 2 We agree with the distri ct court that Plaintiff did not create a genuine issue of material fact as to wh ether Defendant Blumer consci ously disregarded his medical needs. Our jurisdiction arises unde r 28 U.S.C. § 1291. We affirm.
I. On “blanket day”—the day inmates se nd 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 doi ng so, a sewing needle jamme d 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 Plaint iff. 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 pl eadings and filings liberally. See Haines v. Kern er, 404 U.S. 519, 520–21 (1972).

2 We grant Plaintiff’s mo tion 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 fu rther 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 th en left the room. Lowery did not observe any portion of th e 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 re vealed 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 wa s too deep to easily remove, the hospital scheduled a consultation with a surgeon for elev en days later. Just shy of two months following the consultation, Plaintiff ha d surgery to remove the needle. Unfortunately, Plaintiff’s w ound became infected and Plai ntiff 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 hi s back. Plaintiff is now wheelchair-bound. Plaintiff filed this civil action agai nst his surgeon, Correctional Health Partners, and Blumer. The district court initially dismissed th e claims against the doctor and Correctional Health Partners as legally fri volous but allowed the claim against Blumer to proceed. Plaintiff cont ended that Blumer violated his rights by failing to “call the provider, like she should have, and initia te thing[s].” He believes that Blumer should have taken charge and sent him to the emergency room4 immediately. He contended that if Blumer had sent him to the emergency room the afternoon of his injury, the need le would not have traveled as far into his body as it did. The district court granted summary judgment for Blumer, st ating that Plaintiff did not provide sufficient evidence to prove a constitutional violation. Specifically, the district court held that Plaintiff’s need for additiona l immediate medical treatment was not obvious the day of his injury a nd, at most, the ev idence demonstrated inadvertent or negligent failure to provide appropriate medical care. The district court noted no evidence supported Plaintiff’s assertion that th e twenty-four-hour delay between his examination in the pris on and his examination in the emergency room resulted in substantial harm he woul d 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 r easonable 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 di strict 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). “Unsubsta ntiated 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 indifferenc e to serious medical needs of prisoners constitutes the unnecessary and wanton inflicti on 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.” Es telle, 429 U.S. at 106. Negligence is not enough. Self, 429 F.3d at 1230. We anal yze Plaintiff’s claim under the familiar twopronged inquiry first set fort h in Farmer v. Brennan, 5 11 U.S. 825 (1994). “Under the objective inquiry, the alleged depriva tion must be ‘sufficiently serious’ to constitute a deprivation of constitutional dimension.” Se lf, 429 F.3d at 1230. And “under the subjective inquiry, the prison offici al must have a ‘sufficiently culpable state of mind.’” Id. at 1230–31. For pur poses of the subjectiv e component, a prison official “cannot be liable ‘ unless the official knows of and disregards an excessive risk to inmate health or sa fety; the official must both be aware of facts from which the inference could be drawn that a substan tial risk of serious harm exists, and he must also draw the inferenc e.’” Id. at 1231 (quoting Fa rmer, 511 U.S. at 837). Absent an “extraordinary degree of ne glect,” a Plaintiff does not meet his burden of satisfying the subject ive component. Id. at 1232. Therefore, a claim is “actionable only in cases where the need fo r 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 circumstances6 of a missed diagnosis or delaye d referral may arise. Id. Re levant here is the situation where “a medical professional completely denies care althoug h presented with recognizable symptoms which potentia lly 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 te sting 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 constitu tional violation.” Perkins v. Kan. Dep’t of Corrections, 165 F.3d 803, 811 (10th Cir. 1999). “So long as a medical professional pr ovides a level of care consis tent with the symptoms presented by the inmate, abse nt evidence of actual knowle dge 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 consid er whether Plaintiff presented sufficient evidence of the subjective component of hi s deliberate indifferen ce claim to create a genuine issue of material fa ct—specifically, a showing of Blumer’s culpable state of mind. Plaintiff may demonstrate this by showing either Bl umer’s conscious disregard of a substantial risk of serious harm arising fr om Plaintiff’s symptoms or actual knowledge of Plaintiff’s condition and refusal to order further treatment. Id. As mentioned above, when Plaintiff vi sited 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 Pl aintiff an x-ray for the next day. These facts, viewed in the light most favorable to Plaintiff, do not show conscious disregard of Plai ntiff’s medical needs. Bl umer did not deny Plaintiff medical treatment. His clai m is that the course of treatment was inadequate. Plaintiff stated in his depos ition 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 st atement does not bear on whether Blumer consciously disregarded a substa ntial risk in treating Plain tiff. See Self, 439 F.3d at 1234 (noting that a later medical assess ment does not go to whether a previous medical professional consciously disregarded a substantial ri sk in treating a patient). The nurses at the prison, at worst, misd iagnosed 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 subjectiv e component of a de liberate indifference claim.” Id. Nothing in th e record suggests that Plai ntiff’s symptoms obviously necessitated an immediate tran sfer 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 c ontacted a physician who instruct ed him to schedule an x-ray for the next day. A reasonable jury could not infer a consci ous disregard of s ubstantial risk from Blumer’s missed diagnosis or her failure to send him to the emergency room right away. The nurses certainly did not send Plain tiff back to his cell with an outright8 dismissal of his complaint. As mentione d above, Nurse Lowery, the nurse caring for Plaintiff, contacted a physic ian. And that physician orde red an x-ray that occurred the next morning. Even if the delay rose to negligence or medi cal malpractice, we would be speculating to conclude that Blum er had a culpable state of mind. And summary judgment “requires mo re than mere speculation. ” Id. at 1235. Indeed, it “requires some evidence , either direct or circumstan tial, that [Blumer] knew about and consciously disreg arded 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 n eedle 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 deliber ate indifference claim. We thus conclude the district court did not err in gr anting summary judgment.
AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge