UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ESTATE OF ANGELO WRIGHT, 

 Plaintiff - Appellant, 

v. 

BRUCE BURNHAM, 

 Defendant - Appellee. 

No. 22-4033 

(D.C. No. 4:18-CV-00084-DN) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges. 

_________________________________ 

Angelo Wright was an inmate with the Utah Department of Corrections 

(UDC). On December 22, 2016, he was transferred from the San Juan County (SJC) 

jail to the Central Utah Correction Facility (CUCF) due to slow healing ulcers on his 

right leg. On December 23, Nurse Jason Jackman evaluated Mr. Wright, found no 

infection, and reported his findings to prison physician Bruce Burnham, who 

* 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 

January 25, 2023

Christopher M. Wolpert 

Clerk of Court

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formulated a treatment plan. On December 29, CUCF medical staff discovered the 

ulcers on his right leg had become infected. Mr. Wright was transferred to the 

hospital that same day, but the infection led to the amputation of his right leg below 

the knee. 

Mr. Wright sued Nurse Jackman and Dr. Burnham.1

 His amended complaint 

sought relief under 42 U.S.C. § 1983, asserting that the defendants violated his rights 

under the Eighth and/or Fourteenth Amendments to be free from cruel and unusual 

punishment. He alleged that defendants’ deliberate indifference to his medical needs 

caused his leg to become so infected that it required amputation. He further alleged 

that the infection could have been diagnosed, treated, and stabilized before December 

29, 2016. Mr. Wright also brought a claim under the Utah Constitution. 

Defendants moved for summary judgment, arguing they provided appropriate 

treatment for Mr. Wright on December 23. Mr. Wright conceded summary judgment 

was proper as to Nurse Jackman but not for Dr. Burnham. 

The district court granted summary judgment for Dr. Burnham. It said that 

even if Dr. Burnham misinterpreted Mr. Wright’s symptoms, his conduct did not 

1

 The amended complaint also named John Does 1-5, alleging they were 

medical staff at CUCF, aware of Mr. Wright’s condition, and deliberately indifferent 

to his medical needs. But these unnamed defendants were never served. The district 

court’s summary-judgment decision is final. See Raiser v. Utah Cnty., 409 F.3d 

1243, 1245 n.2 (10th Cir. 2005); Bristol v. Fibreboard Corp., 789 F.2d 846, 847 

(10th Cir. 1986). 

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demonstrate deliberate indifference to Mr. Wright’s medical needs. Mr. Wright 

appeals.2

 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. BACKGROUND 

A. Factual History 

Mr. Wright suffered from a chronic condition known as venous stasis ulcers, 

which are open wounds occurring around the ankle or lower leg and caused by poor 

circulation. 

 In April 2015, while in UDC custody, Mr. Wright developed ulcers on his left 

leg. In November 2015, when the ulcers had not improved, Dr. Burnham transferred 

Mr. Wright to CUCF for more intensive treatment that included daily dressing 

changes, compression hose, and occasional sitz baths. Nurse Jackman participated in 

this treatment. Over several months, the ulcers showed significant improvement. 

Once Dr. Burnham was satisfied the ulcers had improved enough, he agreed 

Mr. Wright could be transferred to SJC jail in May 2016.3

 

On December 12, 2016, Mr. Wright filed a medical request form asking to see 

a doctor about ulcers on his right ankle. On December 15, he saw Physician 

Assistant (PA) Blen Freestone, who assessed the ulcers as slow healing but not 

showing signs of infection. PA Freestone recommended that Mr. Wright see a wound 

2

 Mr. Wright passed away in March 2021. His Estate was substituted as 

plaintiff in August 2021. We refer to the appellant as Mr. Wright. 

3

 Mr. Wright was housed at SJC jail as part of the UDC’s Inmate Placement 

Program (IPP). 

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care specialist. He explained at his deposition that any referral would be up to the 

prison physician. 

On December 19, an SJC jail staff member emailed Nurse Jackman, reporting 

that PA Freestone “does not feel that [Mr. Wright’s] leg wound is healing the way it 

should and would like him to see a specialist. We would request that he get 

transferred back to the prison to have this addressed.” Aplt. App., Vol. III at 518. 

On December 20, Mr. Wright filed another medical request form stating that he could 

“hardly put pressure on [his] right foot to walk.” Id. at 517. 

After PA Freestone saw Mr. Wright, he contacted Dr. Burnham and told him 

that “the ulcer[s] on Mr. Wright’s right leg were not improving and Mr. Wright 

should be seen by a provider who was more familiar with treating venous stasis 

ulcers.” Id., Vol. II at 482. Dr. Burnham explained in his declaration that “outside 

emergency situations, before sending any inmate in an IPP facility to a specialist, it is 

UDC practice to have a UDC medical provider evaluate the inmate.” Id. 

On December 22, Dr. Burnham ordered Mr. Wright to be transferred back to 

CUCF “so he could be evaluated by UDC medical staff who were familiar with 

Mr. Wright’s condition and who had the knowledge and experience to properly treat 

venous stasis ulcers.” Id. That same day, Mr. Wright was transferred. He arrived at 

CUCF in a wheelchair. 

Nurse Jackman briefly assessed Mr. Wright when he arrived at CUCF on the 

22nd. He ordered crutches for Mr. Wright because the ulcers were limiting his 

mobility. On December 23, Nurse Jackman performed a more thorough assessment. 

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In his notes, he indicated that the previously treated ulcers on the left ankle were 

almost completely healed, but four new, small ulcers appeared on the back of the 

right foot and that the area was “red [and] swollen.” Id., Vol. III at 520. He 

observed “[w]eeping” due to the swelling. Id. He also noted the area was “raw and 

macerated,” but that “[n]o infection is seen.” Id. In his declaration, Nurse Jackman 

said the ulcers were “discolored” and “the skin was friable and irritated.” Id. at 626. 

He also testified at his deposition that he did not see any “pus” on Mr. Wright’s 

ankle, and it was not “hot to the touch.” Id., Vol. I at 183. 

Nurse Jackman consulted with Dr. Burnham, who did not see Mr. Wright.4

Dr. Burnham ordered dressing changes, compression socks, and crutches. 

Nurse Jackman also instructed Mr. Wright to keep his leg elevated. Dr. Burnham 

“believe[d] [Nurse] Jackman ha[d] the knowledge and experience to recognize signs 

and symptoms of an infection and . . . would have noted any signs of infection and 

reported them to [him].” Id., Vol. II at 483. Dr. Burnham’s rationale for his order 

was that “[d]aily dressing changes not only promote healing but allow for medical 

staff to assess the wound daily for changes and address signs of infection as they 

arise.” Id. The wound was cleaned with saline and covered with Xeroform gauze 

and a Telfa pad. Dr. Burnham then left on vacation for a week. 

4

 The parties dispute whether Dr. Burnham saw Mr. Wright in person. But the 

district court determined this fact was not material to its decision. Viewing the facts 

in Mr. Wright’s favor, it assumed Dr. Burnham did not visit or see Mr. Wright on 

December 23. We make the same assumption. 

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On December 24, another nurse saw Mr. Wright and completed a dressing 

change, noting that Mr. Wright did not exhibit signs or symptoms of an infection. 

Mr. Wright declined medical treatment on December 25 and 26, saying he would 

change his dressing himself. On December 27, a medical technician cleaned 

Mr. Wright’s wound with saline and placed Xeroform gauze on the wound, covered 

by a Telfa pad. Mr. Wright refused dressing changes on December 28 and 29. But 

then later on December 29, he told the guards he was in significant pain, and he had a 

hole in his ankle that was oozing white liquid. 

Mr. Wright was brought to the clinic where Nurse Jackman saw an open 

wound with drainage mixed with blood and more discolored than it was before. He 

cleaned the wound with saline, administered a shot of antibiotics, and transferred 

Mr. Wright to the University Medical Center (UMC) that same day due to concerns 

Mr. Wright had an infection. Despite UMC’s best efforts, the infection ultimately led 

to a below-the-knee amputation of Mr. Wright’s right leg on January 21, 2017. 

B. Procedural History 

Mr. Wright filed his complaint in state court in November 2018, and the 

defendants removed it to federal court. Mr. Wright filed an amended complaint in 

January 2020, bringing claims under § 1983 and the Utah Constitution. 

In December 2020, Mr. Wright’s expert, Dr. John Deacon, prepared a report. 

In it, he opined that: the x-ray report from December 29 showed that Mr. Wright had 

an infection on December 23; Nurse Jackman’s assessment violated the standard of 

care because Mr. Wright “had physical exam findings that were consistent with 

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infection,” but Nurse Jackman did “not recognize [a] likely infection with the 

constellation of findings present in this case,” Aplt. App., Vol. III at 533, 534; 

Dr. Burnham violated the standard of care because he should have conducted his own 

examination of Mr. Wright, but even if he didn’t examine Mr. Wright, he should have 

acknowledged infection as the most likely diagnosis based on the information 

Nurse Jackman provided; if the infection had been properly treated with antibiotic 

therapy, Mr. Wright would not have developed septic arthritis; and “[i]f not for the 

errors and omissions of Nurse Jackman and Dr. Burnham, Mr. Wright would have 

avoided below-knee amputation,” id. at 539 (boldface omitted). 

Dr. Burnham moved for summary judgment based on qualified immunity. The 

district court granted summary judgment in Dr. Burnham’s favor on the § 1983 

claim. It declined to exercise supplemental jurisdiction over Mr. Wright’s state-law 

claim, so it dismissed that claim without prejudice. Mr. Wright appeals from the 

district court’s decision. 

C. Legal Framework

1. Qualified Immunity 

“The doctrine of qualified immunity shields officials from civil liability so 

long as their conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” Crowson v. Washington 

Cnty., 983 F.3d 1166, 1177-78 (10th Cir. 2020) (quotations omitted). A defendant’s 

assertion of a qualified immunity affirmative defense “creates a presumption that the 

defendant is immune from suit.” Id. at 1178 (brackets and quotations omitted). To 

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overcome this presumption, the burden shifts to the plaintiff to “show (1) facts that 

demonstrate the [defendant] violated a federal constitutional or statutory right, which 

(2) was clearly established at the time of the defendant’s conduct.” Sawyers v. 

Norton, 962 F.3d 1270, 1282 (10th Cir. 2020). 

2. Deliberate Indifference 

“A prison official’s ‘deliberate indifference’ to a substantial risk of serious 

harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 

825, 828 (1994). This includes “deliberate indifference to an inmate’s serious 

medical need.” Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005). 

“To establish deliberate indifference based on prison officials failing to attend 

to an inmate’s serious medical needs, a plaintiff must satisfy an objective and 

subjective component.” Smith v. Allbaugh, 987 F.3d 905, 910 (10th Cir. 2021). “The 

objective component of deliberate indifference is met if the harm suffered rises to a 

level sufficiently serious to be cognizable under the Cruel and Unusual Punishment 

Clause.” Sawyers, 962 F.3d at 1283 (quotations omitted). “To satisfy the subjective 

component, the plaintiff must show the official knows of and disregards an excessive 

risk to inmate health or safety.” Id. (quotations omitted). “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. (quotations omitted). 

In determining whether the subjective component has been established, we 

have recognized “two types of conduct constituting deliberate indifference”—failure 

to treat and failure to act as a gatekeeper. Sealock v. Colorado, 218 F.3d 1205, 1211 

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(10th Cir. 2000). The first and most common type is when a medical professional 

acts in a treating role and the “medical professional may fail to treat a serious 

medical condition properly.” Id. But “[w]here this sort of conduct is alleged, the 

medical professional has available the defense that he was merely negligent in 

diagnosing or treating the medical condition, rather than deliberately indifferent.” Id. 

The second type is when a prison official or medical professional knows that his role 

is to serve as a gatekeeper for other medical personnel capable of treating the 

condition, but “he delays or refuses to fulfill that gatekeeper role” and “prevent[s] an 

inmate from receiving treatment or den[ies] him access to medical personnel capable 

of evaluating the need for treatment.” Id. 

“In some circumstances there may be a clear difference between a provider 

and a gatekeeper. But . . . a physician’s role often involves treating the patient while 

simultaneously considering the need for referral to someone with more specialized 

training at the same time.” Lucas v. Turn Key Health Clinics, LLC, --- F.4th ---, 

No. 22-5002, 2023 WL 327846, at *9 (10th Cir. Jan. 20, 2023) (citation and 

quotations omitted). So a medical professional can act as both a provider and 

gatekeeper simultaneously, and can be liable under either or both theories. Id. at *9

& nn. 4-5. 

D. District Court Decision

The district court determined that the first prong of the qualified immunity 

test—whether there was a constitutional violation—was dispositive, so it did not 

address the second prong—clearly established law. The court explained that 

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“[b]ecause Wright has not carried his qualified-immunity burden of providing 

evidence of material facts supporting his view that Defendant breached his federal 

constitutional right, Defendant is protected from further litigation in this matter, 

without consideration of whether the law was clearly established at the time of the 

defendant’s conduct.” Aplt. App., Vol. V at 1181 (quotations omitted). 

In deciding Mr. Wright had not shown a constitutional violation, the district 

court first found that Mr. Wright met the objective component of the 

deliberate-indifference test because his infection and amputation showed that he 

“endured an objectively serious harm.” Id. at 1175. But the court next determined 

that Mr. Wright had not satisfied the subjective component because he had not 

offered evidence that Dr. Burnham knew of and disregarded a substantial risk to 

Mr. Wright’s health. 

In reaching this conclusion, the district court relied on undisputed facts 

presented in Dr. Burnham’s motion for summary judgment showing that: 

 Defendant was aware that Wright had been successfully treated at 

CUCF in the previous thirteen months for a similar past ulcer; 

 Defendant had ordered Wright’s transfer back to CUCF from SJC 

jail (just as had happened about thirteen months before) for better 

treatment of his current ulcers; 

 within three days of being notified by SJC that Wright needed better 

treatment, the same nurse (Jackman) who had contributed to the 

successful treatment of the past ulcer was assessing Wright in 

person, on December 23, 2016, upon Wright’s arrival back to 

CUCF; 

 though Defendant did not see Wright in-person on December 23, 

2016, Defendant consulted with Jackman about Jackman’s in-person 

assessment of Wright as to Jackman’s perception that Wright’s foot 

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was painful, red, and swollen, the ulcers were not open but were 

weeping and raw-looking, but that Jackman did not see pus and feel 

heat coming from the ulcered area and did not believe Wright had an 

infection that day; [and] 

 Jackman had the knowledge and experience to recognize signs and 

symptoms of an infection and would have noted any signs of 

infection and reported them to Burnham[.] 

Id. at 1176-77 (brackets, citations, ellipsis, and quotations omitted). The court also said it 

was undisputed that Dr. Burnham did not believe Mr. Wright had an infection that day, 

and that Dr. Burnham ordered treatment for Mr. Wright that was consistent with the need 

to heal the ulcers. And the court noted: 

Once the consultation was over and Defendant had 

given the orders, he left on vacation, no doubt with the 

expectation that the orders would be carried out and daily 

assessments would alert on-duty medical staff to lack of 

healing of the wound, or signs of infection that might arise. 

This is exactly what happened, with the infection being 

discovered on December 29, 2016, and Wright being 

transferred to UMC that same day. 

Id. at 1177 (citation omitted). 

 The district court acknowledged that Mr. Wright’s expert found “plenty of fault” 

with Dr. Burnham’s care of Mr. Wright and opined that Dr. Burnham did not observe 

“the standard of care for Wright’s situation.” Id. at 1178 (quotations omitted). But the 

court explained, “While it may be true that ‘the medical standard of care’ demanded more 

from Defendant, . . . Wright’s constitutional rights did not.” Id. at 1179. “Unfortunately, 

Wright’s symptoms were possibly misinterpreted by Defendant but this falls well below 

the culpable state of mind necessary to support a deliberate indifference allegation.” Id.

at 1180 (quotations omitted). 

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The district court also rejected Mr. Wright’s attempts “to cast Defendant as a 

gatekeeper” when the evidence showed “he did not see that as his role.” Id. at 1181. The 

court explained that Dr. Burnham was primarily responsible for providing medical care, 

he was experienced in treating wounds, and there was no evidence he thought of his role 

as a gatekeeper for other medical professionals capable of treating Mr. Wright’s wounds. 

II. DISCUSSION 

We review de novo a grant of summary judgment based on qualified 

immunity. Mata, 427 F.3d at 749. Summary judgment is appropriate “if the movant 

shows that 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). “In applying this 

standard, we view the evidence and the reasonable inferences to be drawn from the 

evidence in the light most favorable to the nonmoving party.” Sawyers, 962 F.3d at 

1282 (quotations omitted). 

A. Gatekeeper

Mr. Wright first argues that he “raised an issue of fact regarding Burnham’s 

subjective knowledge where Burnham never assessed [him] yet denied him access to 

a specialist referred by another physician.” Aplt. Opening Br. at 16 (boldface and 

underline omitted). He contends that Dr. Burnham committed deliberate indifference 

in his role “as gatekeeper to outside medical experts.” Id. at 17 (underline omitted). 

We first note that this argument contains factual inaccuracies. There was no 

other “physician” who referred Mr. Wright to a specialist. Although PA Freestone 

recommended that Mr. Wright see a specialist, he acknowledged that the prison 

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doctor would decide whether Mr. Wright should see a specialist. It is therefore not 

accurate to state that Dr. Burnham denied Mr. Wright access to a specialist that 

another physician had referred him to see. 

In support of his gatekeeper argument in district court, Mr. Wright presented 

evidence that prison policy generally required a doctor at CUCF to decide whether to 

refer a prisoner to a specialist. A jury might be able to infer from this evidence that 

Dr. Burnham acted simultaneously as a treating physician and a gatekeeper.5

 But 

even if Dr. Burnham acted in part as a gatekeeper, there is no evidence that he 

consciously decided not to refer Mr. Wright to a wound specialist, and even if there 

were, there is no evidence that he did anything other than exercise his considered 

medical judgment, which is not deliberate indifference. See Self v. Crum, 439 F.3d 

1227, 1232 (10th Cir. 2006) (explaining that “the subjective component is not 

satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises 

his considered medical judgment” and “[m]atters that traditionally fall within the 

scope of medical judgment are such decisions as whether to consult a specialist or 

undertake additional medical testing”). 

Moreover, the undisputed facts show that when Nurse Jackman evaluated 

Mr. Wright on December 23 and communicated his assessment to Dr. Burnham, he 

5

 We recently clarified that a doctor can act as both a provider and a 

gatekeeper and that a plaintiff need not show the doctor was acting “solely” as a 

gatekeeper to establish liability under a gatekeeper theory. Lucas, 2023 WL 327846, 

at *9 & n.5. 

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did not indicate any concerns that Mr. Wright’s condition required emergency and/or 

specialty care. After consulting with Nurse Jackman, Dr. Burnham ordered a 

treatment plan consistent with Mr. Wright’s symptoms, and consistent with the 

treatment plan he had successfully implemented for the ulcers on Mr. Wright’s other 

leg. Mr. Wright’s expert did not say that Dr. Burnham was not capable of treating 

Mr. Wright’s condition or that Dr. Burnham should have referred Mr. Wright to a 

specialist or for emergency care on December 23. Instead, the expert opined that 

Nurse Jackman and Dr. Burnham could have provided the proper care on that day but 

failed to do so. 

We therefore agree with the district court that Dr. Burnham was entitled to 

summary judgment on Mr. Wright’s gatekeeper theory. 

B. Treating Physician

Mr. Wright next asserts that, even if Dr. Burnham was not a gatekeeper, “there 

is still a dispute of fact as to subjective indifference where Dr. Burnham failed to 

both properly assess and treat Wright’s condition.” Aplt. Opening Br. at 21 

(underline omitted). We disagree. We have explained that “the negligent failure to 

provide adequate medical care, even one constituting medical malpractice, does not 

give rise to a constitutional violation.” Self, 439 F.3d at 1233 (quotations omitted). 

We have further explained that “[s]o 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.” Id. 

“Indeed, our subjective inquiry is limited to consideration of the doctor’s knowledge 

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at the time he prescribed treatment for the symptoms presented, not to the ultimate 

treatment necessary.” Id. 

Mr. Wright contends that Dr. Burnham failed to treat his condition properly 

because Dr. Burnham “never assessed” him in person. Aplt. Opening Br. at 21. But 

Dr. Burnham did assess Mr. Wright’s condition based on his knowledge of 

Mr. Wright’s medical history and the information Nurse Jackman relayed to him 

from Nurse Jackman’s physical examination of Mr. Wright. Although Mr. Wright’s 

expert opined that Dr. Burnham’s conduct in not examining Mr. Wright in person fell 

below the standard of care, negligence or medical malpractice does not give rise to a 

constitutional violation. See Self, 439 F.3d at 1233. 

The undisputed evidence shows Dr. Burnham did not believe there was an 

infection when he prescribed treatment for Mr. Wright, and “[h]e prescribed care 

consistent with Wright’s symptoms on December 23—care that had successfully 

treated the ulcers in Wright’s other leg.” Aplee. Br. at 14. As the district court 

noted, it is possible that Dr. Burnham misinterpreted Mr. Wright’s symptoms, but 

Dr. Burnham did provide a treatment plan for the condition he believed was causing 

Mr. Wright’s symptoms, a treatment plan that worked successfully in the previous 

year. We therefore agree that because Dr. Burnham “promptly ordered a reasonable 

treatment plan, the district court correctly concluded that Dr. Burnham did not 

consciously disregard Wright’s medical needs.” Id.

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III. CONCLUSION 

We affirm the district court’s judgment. 

 Entered for the Court 

 Scott M. Matheson, Jr. 

 Circuit Judge 

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