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 tran sferred from the San Juan County (SJC) jail to the Central Utah Co rrection Facility (CUCF) due to slow healing ulcers on his right leg. On December 23, Nurse Jason Jackman evalua ted Mr. Wright, found no infection, and reported his findings to prison physician Bruce Burnham, who

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### January 25, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 12 formulated a treatment plan . On December 29, CUCF me dical staff discovered the ulcers on his right leg had b ecome infected. Mr. Wright was transferred to the hospital that same day, but the infection le d 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 de fendants violated his rights under the Eighth and/or Fourteenth Amendm ents to be free from cruel and unusual punishment. He alleged that defendants’ deliberate indifference to his medical needs caused his leg to become so in fected that it required amput ation. 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 judgm ent 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 J ohn Does 1-5, alleging they were medical staff at CUCF, aware of Mr. Wright ’s condition, and delib erately 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). Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 23 demonstrate deliberate indiffe rence to Mr. Wright’s medi cal 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 c ondition 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 develope d ulcers on his left leg. In November 2015, when the ulcers had not improved, Dr. Burnham transferred Mr. Wright to CUCF for more intensiv e treatment that in cluded daily dressing changes, compression hose, and occasional sitz baths. Nurs e Jackman participated in this treatment. Over several months, th e ulcers showed significant improvement. Once Dr. Burnham was satisfied the ulce rs had improved enough, he agreed Mr. Wright could be transfe rred 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 Freest one, 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 202 1. His Estate was substituted as plaintiff in August 2021. We refe r to the appellant as Mr. Wright.

3 Mr. Wright was housed at SJC jail as part of the UDC’s Inmate Placement Program (IPP). Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 34 care specialist. He explained at his deposition that any re ferral would be up to the prison physician. On December 19, an SJC jail staff me mber 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 specia list. We would request that he get transferred back to the prison to have this addressed.” Ap lt. App., Vol. III at 518. On December 20, Mr. Wright filed another me dical 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. Wr ight’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 explai ned in his declara tion that “outside emergency situations, before se nding any inmate in an IPP faci lity 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 wh o had the knowledge and experience to properly treat venous stasis ulcers.” Id. That same day, Mr. Wright wa s transferred. He arrived at CUCF in a wheelchair. Nurse Jackman briefly assessed Mr. Wri ght when he arrived at CUCF on the 22nd. He ordered crutches for Mr. Wri ght because the ulcers were limiting his mobility. On December 23, Nu rse Jackman performed a more thorough assessment. Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 45 In his notes, he indicated that the previ ously 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 th e area was “raw and macerated,” but that “[n] o infection is seen.” Id. In his declarat ion, Nurse Jackman said the ulcers were “discolored” and “t he 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. Bu rnham, 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 kno wledge and experience to recognize signs and symptoms of an infection and . . . w ould have noted any si gns 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 onl y promote healing but allow for medical staff to assess the wound daily for change s and address signs of infection as they arise.” Id. The wound was cleane d with saline and covered with Xeroform gauze and a Telfa pad. Dr. Burnham th en left on vacation for a week.

4 The parties dispute whether Dr. Burnha m 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. Bu rnham did not visit or see Mr. Wright on December 23. We make the same assumption. Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 56 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 treatmen t on December 25 and 26, saying he would change his dressing himself. On Decem ber 27, a medical technician cleaned Mr. Wright’s wound with saline and place d 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 si gnificant pain, and he had a hole in his ankle that wa s oozing white liquid. Mr. Wright was brought to the clinic where Nurse Jackman saw an open wound with drainage mixed w ith 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 Cent er (UMC) that same day due to concerns Mr. Wright had an infection. Despite UMC’ s best efforts, the in fection ultimately led to a below-the-knee amputation of Mr. Wri ght’s right leg on January 21, 2017.
B. Procedural History Mr. Wright filed his complaint in st ate 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 fro m 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 ex am findings that were consistent with Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 67 infection,” but Nurse Jackman did “not recognize [a] likely infection with the constellation of findings present in this case,” Aplt. App., Vo l. 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 arth ritis; and “[i]f not for the errors and omissions of Nurse Jackman a nd Dr. Burnham, Mr. Wright would have avoided below-knee amputation,” id. at 539 (boldface omitted). Dr. Burnham moved for summary judgme nt based on qualified immunity. The district court granted summary judgment in Dr. Burnham’s favor on the § 1983 claim. It declined to exercise supplemental jurisdic tion 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 shie lds officials from ci vil 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 affirmat ive defense “creates a presumption that the defendant is immune from suit.” Id. at 1178 (brackets and quotations omitted). To Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 78 overcome this presumption, the burden shifts to the plaintiff to “show (1) facts that demonstrate the [defendant] violated a fede ral constitutional or st atutory right, which (2) was clearly establis hed 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 indiffere nce’ to a substantia l risk of serious harm to an inmate violat es the Eighth Amendment.” Farmer v. Brennan , 511 U.S. 825, 828 (1994). This includes “deliberat e indifference to an inmate’s serious medical need.” Mata v. Saiz , 427 F.3d 745, 749 (10th Cir. 2005). “To establish deliberate indifference ba sed on prison official s failing to attend to an inmate’s serious me dical needs, a plaintiff mu st satisfy an objective and subjective component.” Smith v. Allbaugh , 987 F.3d 905, 910 (1 0th 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 Crue l 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 coul d 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 co nstituting deliberate i ndifference”—failure to treat and failure to act as a gatekeeper. Sealock v. Colorado , 218 F.3d 1205, 1211 Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 89 (10th Cir. 2000). The firs t 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 defe nse that he was merely negligent in diagnosing or treating the medi cal condition, rather than deliberately indifferent.” Id. The second type is when a pr ison official or medical prof essional knows that his role is to serve as a gatekeep er for other medical personne l capable of treating the condition, but “he delays or refuses to fulfi ll that gatekeeper role ” and “prevent[s] an inmate from receiving treatment or den[ie s] 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 refe rral 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 (10t h 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 th e first prong of th e qualified immunity test—whether there was a cons titutional violation—was dis positive, so it did not address the second prong—clearly establis hed law. The court explained that Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 910 “[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 li tigation in this matter, without consideration of whether the law wa s 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 objec tive component of the deliberate-indifference test because his infection and am putation 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 dist rict court relied on undisputed facts presented in Dr. Burnham’s motion fo r summary judgment showing that:

 Defendant was aware that Wright had been successfully treated at CUCF in the previous thirteen mo nths for a similar past ulcer;

 Defendant had ordered Wright’s transfer back to CUCF from SJC jail (just as had happened about th irteen 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 (Jackm an) 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 Wri ght in-person on December 23, 2016, Defendant consulted with Ja ckman about Jackman’s in-person assessment of Wright as to Jackma n’s perception that Wright’s foot Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 1011 was painful, red, and swollen, th e 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 e xperience to recognize signs and symptoms of an infection and would have note d any signs of infection and reported them to Burnham[.] Id. at 1176-77 (brackets, citations , ellipsis, and quotations omitte d). The court also said it was undisputed that Dr. Burnham did not beli eve Mr. Wright had an infection that day, and that Dr. Burnham ordered tr eatment 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 wo uld 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 happene d, 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 an d 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 possi bly misinterpreted by Defendant but this falls well below the culpable state of mind ne cessary to support a deliberate indifference allegation.” Id. at 1180 (quotations omitted). Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 1112 The district court also rejected Mr. Wr ight’s attempts “to cast Defendant as a gatekeeper” when the evid ence 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 th ere was no evidence he thought of his role as a gatekeeper for other medical professiona ls capable of treating Mr. Wright’s wounds.
II. DISCUSSION We review de novo a grant of su mmary judgment based on qualified immunity. Mata , 427 F.3d at 749. Summary judgmen t 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 evid ence and the reasonable infere nces to be drawn from the evidence in the light most favorab le to the nonmoving party.” Sawyers , 962 F.3d at 1282 (quotations omitted).
A. Gatekeeper Mr. Wright first argues th at he “raised an issue of fact regarding Burnham’s subjective knowledge where Bu rnham never assessed [him] yet denied him access to a specialist referred by another physician. ” Aplt. Opening Br. at 16 (boldface and underline omitted). He cont ends that Dr. Burnham comm itted deliberate indifference in his role “as gate keeper to outside medical experts.” Id. at 17 (underline omitted). We first note that this argument contai ns factual inaccuracies. There was no other “physician” who referred Mr. Wright to a speciali st. Although PA Freestone recommended that Mr. Wright see a specia list, he acknowledged that the prison Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 1213 doctor would decide whether Mr. Wright should see a specialist. It is therefore not accurate to state that Dr. Bu rnham denied Mr. Wright ac cess to a spec ialist that another physician had re ferred 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 fr om 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 anyt hing 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]a tters that traditionall y fall within the scope of medical judgment are such decisions as whether to consult a specialist or undertake additional me dical 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 docto r 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. Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 1314 did not indicate any concerns that Mr. Wr ight’s condition require d 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 successf ully implemented for the ul cers on Mr. Wright’s other leg. Mr. Wright’s expert did not say th at Dr. Burnham was not capable of treating Mr. Wright’s condition or th at 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. Wr ight’s gatekeeper theory.
B. Treating Physician Mr. Wright next asserts th at, even if Dr. Burnham wa s 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 car e, even one constituting medi cal malpractice, does not give rise to a constitutional violation.” Self , 439 F.3d at 1233 (quotations omitted). We have further explained th at “[s]o long as a medical professional provides a level of care consistent with the symptoms pr esented by the inmate, absent evidence of actual knowledge or recklessness, the re quisite state of mind cannot be met.” Id. “Indeed, our subjective inquiry is limited to consideration of th e doctor’s knowledge Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 1415 at the time he prescribed tr eatment for the symptoms pres ented, not to the ultimate treatment necessary.” Id. Mr. Wright contends that Dr. Burnham failed to tr eat his condition properly because Dr. Burnham “never a ssessed” 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 in formation Nurse Jack man 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 me dical malpractice does not give rise to a constitutional violation. See Self , 439 F.3d at 1233. The undisputed evidence shows Dr. Bu rnham 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—car e 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 misi nterpreted Mr. Wri ght’s symptoms, but Dr. Burnham did provide a treatment plan for the condition he believed was causing Mr. Wright’s symptoms, a treat ment plan that worked su ccessfully in the previous year. We therefore agree that because Dr. Burnham “p romptly ordered a reasonable treatment plan, the district court correctly concluded that Dr. Burnham did not consciously disregard Wri ght’s medical needs.” Id. Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 1516 III. CONCLUSION We affirm the district court’s judgment.

Entered for the Court
Scott M. Matheson, Jr. Circuit Judge Appellate Case: 22-4033 Document: 010110803149 Date Filed: 01/25/2023 Page: 16