UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DAVID E. HILL, Plaintiff - Appellant,

v. B. TRUE, Warden; A. FELLOW, Assist Health Service Administrator; and Jane Doe, Health Service Administrator; W. RESTO, Clinical Dire ctory; J. STERETT, Doctor; J. SEROSKI; R. HUDDLESTON; D. OBA; J. FIRTH, Defendants - Appellees. No. 21-1139 (D.C. No. 1:20-CV -03135-RBJ-NRN) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, MORITZ and ROSSMAN , Circuit Judges.

________________ _________________ David E. Hill, a federal prisoner proceeding pro se, 1 appeals the district court’s denial of (1) his motion for a preliminar y injunction and (2) his motion to take

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 Because Hill proceeds pro se, we cons true his arguments liberally, but we do not “take on the responsibility of serving as [his] attorney in constructing arguments FILED United States Court of Appeals Tenth Circuit 

### December 27, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 12 judicial notice of a medical record. We have jurisdiction over the interlocutory appeal of the preliminary-injunction ruli ng under 28 U.S.C. § 1292(a)(1). We exercise pendent jurisdiction to review th e nonfinal judicial-notice ruling because there is an adequate r ecord for review, the i ssue is closely related to the denial of the preliminary injunction, and addressing th e issue promotes judicial economy. See Moore v. City of Wynnewood , 57 F.3d 924, 929 (10th Ci r. 1995). We reverse the denial of Hill’s motion for a preliminary in junction and remand to the district court for further proceedings consis tent with this Order and Judgment. We affirm the denial of Hill’s motion to take judicial notice. I. Background Hill filed this action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). Among ot her claims, he alleges that Defendants True, Resto, and Sterett—offici als and medical personnel at the federal penitentiary in Florence, Colorado—were deliberately indiffere nt to his serious medical needs in violation of his right s under the Eighth Amendment to the United States Constitution. He as serts that he is in excruc iating pain from Stage 3 or 4 chronic kidney disease and that Defendants have refused to transport him to the hospital for necessary treatm ent by an outside nephrology specialist. Although Hill had three strikes under 28 U.S.C. § 1915(g), the district court allowed him to proceed

and searching the record.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 23 in forma pauperis (IFP) on this claim under that provision’s “imminent danger” exception. 2 In December 2020, at the same time he filed the operative Second Amended Complaint, Hill filed a motion for a preliminary injunction. Relevant to this appeal, Hill argued that Defendants failed to comply with the directive of Christine Baugh, the outside nephrologist who treated him in October 2019 and su bmitted an order for him to return for follow-up care in three mont hs. Hill stated that he was experiencing excruciating stomach and kidney pain, urin ary tract infections, and other symptoms as a result of Defendants’ inac tion. He asked the district court to order his immediate transport to the hospital for treatmen t of his chronic ki dney disease. In March 2021, Defendants responded that they denied Hill’s referral request to see Baugh, who is actually a nurse practitioner at a clin ic, because the Bureau of Prisons (BOP) is adequately monitoring a nd treating Hill’s chronic kidney disease, following an internal protocol that tracks the protocol an outside specialist would implement. They supported this assertion with a declaration by Dr. David Oba. Oba also attested that Hill has Stage 2 chronic kidney di sease—which indicates “mild decreased function” of the kidneys, not “mild to modera tely decreased function” (Stage 3) or “severely decreased functi on” (Stage 4). R., Vol. I at 191-92 (explanation of stages), 195 (diagnosis). In addition, Defendants made the following representation about Hill’s future medical care:

2 The district court also allowed H ill to proceed IFP on a COVID-related medical-treatment claim that is not at issue in this appeal. Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 34 The BOP is also currently schedu ling [Hill] for another consultation with an outside nephrologist specia list. The outside consultation will provide another opinion regarding th e progress of Plaintiff’s [chronic kidney disease], and th at opinion will be taken into account as BOP manages his care. That outside c onsultation should occur within the next two months. R., Vol. II at 180 (citations om itted). In his declaration, Oba stated that he requested the consultation on January 26, 2021, and the request was approved and “will probably be performed within the ne[xt] two months” depending on backlog, staffing, and availability of transport vehicles. Id. at 216-17. Also in March 2021, Hill filed a motion to take judicial notice of a medical record that Baugh prepared on October 17, 2019. On April 5, 2021, the district court denied the motion for a preliminary injunction and the motion to ta ke judicial notice in a text -only electronic docket entry that resolved multiple motions . Hill filed this appeal. II. Analysis A. Motion for a Preliminary Injunction Hill appeals the district court’s denial of his motion for a preliminary injunction. To obtain a preliminary injunction, a mova nt must establish “(1) that [he] has a substantial likelihood of prev ailing on the merits; (2) that [he] will suffer irreparable injury if the injunction is deni ed; (3) that the thre atened injury to th e movant outweighs the injury that the opposing party will suffer under th e injunction; and (4) that the injunction would not be adverse to the public interest.” Utah Licensed Beverage Ass’n v.
Leavitt , 256 F.3d 1061, 1065-66 (10th Cir. 2001 ). “A preliminary injunction is an Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 45 extraordinary remedy that is granted only when the movant’s right to relief is clear and unequivocal.” McDonnell v. City & Cnty. of Denver , 878 F.3d 1247, 1257 (10th Cir. 2018) (internal quotation marks omitted). Although both parties addre ssed all four preliminary in junction factors in their pleadings, the district court di d not reference or analyze the factors in its short order. It stated only: “Per the defendant’s respons e, the BOP is scheduling plaintiff for another consultation with an outside nephrology specia list. Therefore, there is no basis for the Court to issue a mandatory injunction requirin g such a consultation.” R., Vol. II at 293 (citation omitted). “We review a district court’s denial of a preliminary injunction for an abuse of discretion.” Utah Licensed Beverage Ass’n , 256 F.3d at 1065. In the preliminary injunction context, a district court abuses its discretion if it provides “inadequate” analysis on the elements for a preliminary injunction. Aid for Women v. Foulston , 441 F.3d 1101, 1120-21 (10th Cir. 2006) (va cating a preliminary injunction because the district court abused its discretion in concl uding that plaintiffs had shown a substantial likelihood of success on the merits, in providing an “inadequate” analysis of the last three elements, and in “fail[ing] to engage in a mo re explicit analysis of the public interest” element). On appeal, Hill argues that the district cour t’s “failure to engage in a more explicit analysis” is an abuse of discretion.” Aplt. Opening Br. at 11 (int ernal quotation marks omitted). He also notes the lack of findings for each pr eliminary injunction factor. See Reply Br. at 8-9 (likelihood of success on th e merits), 10 (irreparable harm); 11 (balance Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 56 of harms); 12 (public interest). Defendants do not address the impact of the district court’s lack of reasoning in their response br ief; instead, they addr ess the merits of the underlying motion. Hill is correct. The district court’s reasoni ng is inadequate. “In order to provide meaningful appellate review, we require an artic ulation of the district court’s rationale.” United States ex rel. Gry nberg v. Praxair, Inc. , 389 F.3d 1038, 10 59 (10th Cir. 2004); accord In re Bolar Ph arm. Co. Sec. Litig. , 966 F.2d 731, 732 (2d Cir. 1992) (per curiam) (“‘[A]buse of discretion’ is not the equivalent of ‘unreviewable.’ If we are to be satisfied that a district court has properly exercised its discretion, we must be informed by the record of why the district court acted as it di d.”). The district court abused its discretion by not addressing any of the elements for a preliminary injunction. Its ruling may well have been correct. Bu t without any legal analysis, we cannot discern whether it applied the correct legal standard and prop erly exercised its discretion. Moreover, the very limited re asoning within the text-only order suggests that the district court may have denied the motion on mootness grounds. Its concern regarding mootness is evident in an earlie r order that instructed Defendants to investigate whether Hill’s claim was moot and to report their findi ngs to the court. And the order hints at mootness when it states immediately after th e denial of the motion that “the BOP is scheduling plaintiff for anothe r consultation with an outside nephrology specialist.” R., Vol. II at 293. To the extent the district court concl uded the motion for a preliminary injunction was moot, it abused its discretion. On Febr uary 3, 2021, Defenda nts reported: “The Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 67 BOP is providing Plaintiff with the standard treatment for [chr onic kidney disease] but is not doing so using the serv ices of an outside prov ider at this time, so this claim is probably not moot, at least from Plaintiff’s point of view .” R., Vol. I at 181 (emphasis added); see also id. at 183 (“ Plaintiff’s claim is not technically moot , because he is not getting treatment from an outside nephrologist as he wants . . . .” (emphasis added)). Likewise, this subsequent statement in th e order is inconsistent with a mootness determination: “If the government follows up on its representa tion that it will soon arrange for another outside consultation by a qualified nephrology specialist (and the sooner, the better), the Court w ill consider whether any IFP st atus is still warranted.” R., Vol. II at 293. Finally, almost a year later, there is no evidence in the record that an outside consultation has taken place.
B. Motion to Take Judicial Notice Hill next appeals the denial of his motion to take judicial notice of a medical record that Baugh prepared on October 17, 2019. We also review the denial of this motion for an abuse of discretion. See United States v. Visinaiz , 428 F.3d 1300, 1314 (10th Cir. 2005). We affirm the denial because judicial notice is unnecessary when a document is already included in the record. See Am. Stores Co. v. Comm’r , 170 F.3d 1267, 1270 n.2 (10th Cir. 1999). The medical re cord that is the subject of the motion is part of the district court (and now appellate) record. See R., Vol. I at 34-36 (complaint); R., Vol. II at 252-55 (Oda Decl., Ex. 1, Attach. 2). III. Pending Motions We grant Hill’s motion to proceed without prepayment of fees and costs. Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 78 We deny his appellate motion to take judicial notice of a medical record that Baugh prepared on October 9, 2018. Un like the October 17, 2019 medical record discussed above, this one is not part of the record. Bu t Hill has not shown that judicial notice is appropria te under Federal Rule of Ev idence 201(b), which provides that a court can only judicially notice “a fact that is not subject to reasonable dispute.” This medical record is not such a fact: Hill contends it establishe s that he had Stage 3 chronic kidney disease as of October 2018, but Oba stated in his declaration that Hill’s disease was only at Stage 2 at this time. See R., Vol. I at 192, 194-95. In any event, the medical reco rd is not the type of “garden-va riety fact[]” for which judicial notice is appropriate, United States v. Delgado-Lopez , 974 F.3d 1188, 1193 n.2 (10th Cir. 2020). “Judicial notice is proper when a fact is beyond debate, for instance, what time the sun sets on a given day.” Estate of Lockett ex rel. Lockett v. Fallin , 841 F.3d 1098, 1111 (10th Cir. 2016).
IV. Conclusion Because the district court did not provi de adequate analysis to support its denial of Hill’s motion for a preliminar y injunction, we re verse and remand for proceedings consistent with this Order and Judgment. However, we affirm the district court’s denial of Hill’s motion to take judicial notice.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 21-1139 Document: 010110624009 Date Filed: 12/27/2021 Page: 8