* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEONARD NASH, Plaintiff - Appellant, vs. LARRY FIELDS; JOHN WILLIAMS; DR. ROSSAVIK; DR. DILLENGAST; DR. MOON; CHARLOTT FORD; LOVE; JOHN DOE, Medical Administrator; JOHN DOE, Facility Head; ZORA IRACINI, Defendants - Appellees. No. 97-6204 (D.C. No. CIV-95-522-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges. **

Plaintiff-appellant Leonard Nash, a state prisoner proceeding pro se and in forma pauperis pursuant to 28 U.S.C. § 1915(b) (pro viding for payment in installments of full fee), appeals from summary jud gment on his 42 U.S.C. § 1983- 2 -

claim for violation of his Eighth Amendment right t o adequate medical care. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Background In the latter part of May of 1993, Mr. Nash began c omplaining of pain and decreased range of motion of his left shoulder. OnMay 24, 1993, Dr. Roye of Oklahoma Memorial Hospital (OMH) noted impingement of Mr. Nash’s left shoulder and scheduled him for an arthrogram on Jun e 16, 1993, which would confirm or rule out the possibility of a rotator cu ff tear. The following day, prison officials notified Mr. Nash he was eligible for release into the community through Oklahoma’s voluntary Specialized Supervisio n Program (SSP). Mr. Nash signed the form acknowledging his eligibility and r ecommendation for release, as well as SSP Rules and Conditions which stated, “I u nderstand that I am responsible for my own medical care and all medical expenses incurred by me upon my release.” On June 23, 1993, an arthrogram revealed no signs o f rotator cuff tear. Mr. Nash alleges that he was later scheduled for left s houlder acromioplasty on August 5, 1993, but Defendants deny knowledge of th e scheduling, and corrections records do not reflect the scheduled su rgery. Mr. Nash was released into SSP on August 10, 1993, without undergoing thi s surgery, and he was unable to procure the surgery while on SSP release. In May 1994, Mr. Nash violated the- 3 -

terms and conditions of SSP and was re-incarcerated . DOC resumed provision of medical care and provided the acromioplasty surgeryon January 24, 1995. Discussion We review summary judgment rulings de novo, applyin g the same standard as the district court. See Bell v. United States , 127 F.3d 1226, 1228 (10th Cir. 1997). Summary judgment may be granted if the plea dings and any supporting documentary materials “show that there is no genuin e issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). While applying this standard, we view the evidence in the light most favorable to, and draw all reasonable inferences from the evidence infavor of, the non-movant. See Bell , 127 F.3d at 1228. The moving party is “entitled to judgment as a matter of law” if on the undisputed facts there is insuffi cient evidence on an issue for which the nonmoving party will bear the burden of p roof at trial. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Defendants assert summary judgment was proper on the basis of qualified immunity. Government officials are immune from sui t respecting discretionary functions they perform, unless their actions violat e “clearly established statutory or constitutional rights of which a reasonable pers on would have known.” Harlow v. Fiztgerald , 457 U.S. 800, 818 (1982). Plaintiff bears the in itial burden of- 4 -

showing that Defendants’ actions violated clearly e stablished law at the time the violation occurred. See Applewhite v. United States Air Force , 995 F.2d 997, 1000 (10th Cir. 1993), cert. denied , 510 U.S. 1190 (1994). Ordinarily, for the law to be clearly established in this sense, “there mus t be a Supreme Court or Tenth Circuit decision on point, or the clearly establish ed weight of authority from other courts must have found the law to be as the plainti ff maintains.” Medina v. City and County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992). The Eighth Amendment’s prohibition of cruel and unu sual punishment imposes on the government an affirmative duty to pr ovide adequate medical care to those it has incarcerated because they are unabl e to procure care for themselves. See U.S. Const. amd. VIII; Estelle v. Gamble , 429 U.S. 97, 103 (1976). A claim of violation of this duty must sat isfy a two-prong test having both subjective and objective components. A prison er’s Eighth Amendment right to medical care is violated if (1) prison officials manifest a “deliberate indifference” to his medical needs and (2) those ne eds are “serious.” Id. at 104; Wilson v. Seiter , 501 U.S. 294, 298-99 (1991). A “serious” medical need is one that has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the n ecessity for a doctor’s attention. See Ramos v. Lamm , 639 F.2d 559, 575 (10th Cir. 1980), cert. denied , 450 U.S. 1041 (1981).- 5 -

Prior to his release, rather than being denied acce ss to or provision of medical care, Mr. Nash indisputably received extens ive medical attention. Mr. Nash advances no evidence that Defendants knew of h is alleged August 5 surgery appointment. Even if they did, it is not clearly e stablished that they were deliberately indifferent in delaying his surgery fo r five days until Mr. Nash was released and at liberty to seek care in the communi ty. See Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) (holding eleven-day del ay in providing elective surgery not deliberately indifferent); Boring v. Ko zakiewicz , 833 F.2d 468, 473 (3d Cir. 1987) (holding brevity of incarceration is a permissible factor in decision to provide elective surgery), cert. denied , 485 U.S. 991 (1988); Delker v. Maass , 843 F. Supp. 1390, 1400 & n.6 (D. Or. 1994). Moreo ver, Mr. Nash has not marshaled evidence to show that any delay caused hi m “substantial harm” as required to show deliberate indifference in cases i nvolving delay. See Stotts , 9 F.3d at 1477. Further, Mr. Nash has failed to establish that he h ad a sufficiently urgent medical need, as contemplated by the definition of “serious” in Ramos , so that it would have violated the Eighth Amendment to defer the surgery. See Ramos , 639 F.2d at 575; Caldwell v. Moore , 968 F.2d 595, 602 (6th Cir. 1992). Rather, the law allows the type and amount of care to be determ ined on a case-by-case basis. See Johnson v. Bowers , 884 F.2d 1053, 1056 (8th Cir. 1989) (weighing- 6 -

seriousness, consequences of denial, and length of delay); Delker , 843 F. Supp at 1400 & n.6. In Mr. Nash’s case, the more urgent co ncern about a possible rotator cuff tear had been ruled out, he had been determine d eligible for, recommended for, and indicated his voluntary choice to be relea sed into the community via SSP, and actually was released five days later. In addi tion, assuming the August 5 surgery was scheduled, Dr. Roye did not schedule itimmediately, but over a month hence. As for the period during which Mr. Nash was release d, there has been no showing that DOC officials or medical personnel hada duty to provide medical care to those released under the SSP program. Mr. Nash cites no authority suggesting such a duty and our research uncovers no ne. Rather, the rationale of Estelle that the duty arises based on inmates’ isolation f rom the community militates against any such duty when persons are re leased into the community. See Estelle , 429 U.S. at 103. Finally, Mr. Nash has not shown Defendants were del iberately indifferent after his re-incarceration to a serious medical nee d. After his re-incarceration, Mr. Nash received a steady stream of medical appointments for treatment, examination, evaluation, preparation for surgery, the acromioplasty surgery itself, and post-operative care. An Eighth Amendment claimis not cognizable and sufficiently clear to overcome qualified immunity w here the plaintiff receives- 7 -

progressive, conservative care short of the most invasive procedure, surgery with general anesthetic, and ultimately receives the sou ght-after surgery. See Estelle , 429 U.S. at 107 (stating matters of medical judgment do not give rise to a § 1983 claim); Ramos , 639 F.2d at 575 (concluding mere disagreement with medical staff over diagnosis or treatment is insufficient to stat e an Eighth Amendment claim). AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge