Williams v. Hasenmyer

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

BLAKE WILLIAMS, )

)

Plaintiff, )

)

v. ) Case No. CIV-22-174-GLJ

)

HEATHER HASENMYER, individually, )

)

Defendant. )

OPINION AND ORDER

This case arises out of Plaintiff’s incarceration at the Jess Dunn Correctional Center

in Taft, Oklahoma. Plaintiff Blake Williams alleges cruel and unusual punishment arising

out of deliberate indifference to a serious medical need, pursuant to 42 U.S.C. § 1983. The

remaining Defendant, Heather Hasenmyer, seeks summary judgment based on qualified

immunity. For the reasons set forth below, the Court finds that Defendant Hasenmyer’s

Motion for Summary Judgment [Docket No. 80] is hereby GRANTED.

I. Procedural History

Plaintiff filed this case on June 8, 2022, against Hasenmyer, Dr. Bruce Meyer,

Tiffany Woodfaulk, and Tabitha Smith. See Docket Nos. 1-2. Plaintiff dismissed Smith

on July 15, 2022. See Docket No. 10. Plaintiff then filed the First Amended Complaint on

December 8, 2022. See Docket Nos. 19, 23-24. Defendants Hasenmyer and Woodfaulk

moved to dismiss, and the Court invited Plaintiff to file a Second Amended Complaint.

See Docket Nos. 27-28. Plaintiff then filed his Second Amended Complaint, which sole

claim is raised pursuant to § 1983 as to all Defendants, alleging cruel and unusual

punishment demonstrated by deliberate indifference to a serious medical need. Defendants

Hasenmyer, Meyer, and Woodfaulk again moved to dismiss and for qualified immunity.

The Court granted the motion on December 23, 2023, as to Woodfaulk, but denied it as to

Hasenmyer and Meyer. See Docket No. 55. Plaintiff then dismissed Meyer on August 27,

2024. See Docket No. 69. The sole remaining Defendant, Hasenmyer, moved for summary

judgment on March 14, 2025, and the matter is now ripe.

II. Factual Background

The relevant undisputed facts reflect that Plaintiff was incarcerated at the Jess Dunn

Correctional Center (“JDCC”) in Taft, Oklahoma, during the relevant time period in this

case. Docket No. 80, pp. 12-13, ¶¶ 1-2. Defendant is a Physician Assistant (“PA”) working

at JDCC during the same time, at all times under color of law and within the scope of her

employment. Id., ¶¶ 3-4.

On November 6, 2020, Plaintiff injured his left bicep while moving tables at JDCC

and requested health services the same day. Id., ¶¶ 5-6. Defendant examined Plaintiff that

day and, inter alia, ordered him an MRI as well as pain medication. Id., ¶¶ 7, 9-10.

Woodfaulk scheduled Plaintiff’s MRI for November 27, 2020, and the physician approved

it. Id., ¶¶ 12-14. The November 27th MRI was cancelled by JDCC security due to a

security lockdown. Id., p. 14, ¶ 15. Woodfaulk called three providers to reschedule the

MRI, and the earliest available was December 2, 2020, and this appointment was kept as

scheduled. Id., ¶¶ 16-20. In the meantime, Plaintiff was tested for COVID-19 on

December 1, 2020, and the test returned positive on December 4, resulting in Plaintiff’s

quarantine from December 4 through December 15. Id., ¶¶ 18-22.

Woodfaulk received and uploaded the MRI results on December 7, 2020, and the

results confirmed that Plaintiff had a torn bicep with retraction. Id., ¶ 23. Defendant placed

a telehealth consult request that same day, requesting a response within 48 hours and

further notifying a nurse at Lindsey Municipal Hospital (“LMH”) regarding the consult

request and asking that the surgeon develop a treatment plan. An orthopedic surgeon, Dr.

Greisman, who routinely provided orthopedic consults for JDCC inmates, reviewed

Plaintiff’s MRI results on December 9, 2020. He recommended that Plaintiff be scheduled

at LMH the following week, and if not at LMH then through the OU medical system. Id.,

pp. 14-15, ¶¶ 23-30.

Because of Plaintiff’s positive COVID results, however, LMH would not schedule

Plaintiff the following week. On December 10, 2020, Hasenmyer asked her supervisor,

Dr. Meyer, for next steps, and he instructed her to contact the OU clinic to see if they could

find a local provider. The earliest the OU Clinic could see Plaintiff was the week of

December 21, so Defendant asked Dr. Meyer about other local providers, and he instructed

her to try that route. On December 10, Defendant put in a referral request to the Orthopedic

Center requesting an urgent evaluation. Id., pp. 16-17, ¶¶ 37-44. Plaintiff disputes that

Defendant was making efforts to find a provider who could provide the necessary bicep

repair surgery, but doesn’t not dispute she made efforts at finding a local provider. Docket

No. 83, pp. 9-10, ¶¶ 37-44.

On December 10, 2020, the Orthopedic Center scheduled Plaintiff for December

17, 2020, which was approved by Dr. Meyer. Defendant informed Plaintiff of his

appointment, and Plaintiff consented to being referred to a specialist. Docket No. 80, p.

17, ¶¶ 45-48, 50. On December 17, Dr. Blackmon, a foot and ankle specialist, evaluated

Plaintiff, reviewed the MRI results, and recommended Plaintiff be seen “ASAP” for

surgical repair. Id., p. 19, ¶ 65. Plaintiff was scheduled for an appointment with Dr.

Chalkin on December 21, 2020, who evaluated him that day. Id., pp. 19-20, ¶¶ 66, 68.

Rather than recommend or schedule Plaintiff for surgery, Dr. Chalkin recommended

physical therapy based on his examination, the MRI results, medical history, medical,

surgical history, and family history. At that December 21 appointment, Dr. Chalkin

described Plaintiff’s November 6 injury as occurring “almost three months ago.” Id., p.

20, ¶¶ 68-72. Plaintiff asserts Defendant had a duty to review and correct inaccuracies in

the medical record. Docket No. 83, pp. 12-13, ¶¶ 73-78. Though the parties dispute who

created the paperwork, it appears Dr. Chalkin gleaned the mistaken date of injury from

intake paperwork.

Following the appointment with Dr. Chalkin, Defendant was not required to follow

up with Plaintiff. Docket No. 80, p. 21, ¶ 85. However, Defendant received Dr. Chalkin’s

recommendation for physical therapy on December 23, 2020, and scheduled him for

physical therapy beginning December 31. Plaintiff was transported for this appointment,

but it did not occur due to an issue at the service provider location and his appointment was

rescheduled. Id., pp. 21-22, ¶¶ 89, 92. On January 6, 2021, Plaintiff completed paperwork

consenting to physical therapy, but ultimately declined his January 25 physical therapy

appointment as well as his February 23 eight-week follow-up appointment with Dr.

Chalkin. Defendant was uninvolved in Plaintiff’s decisions regarding these appointments.

Id., p. 22, ¶¶ 92-98.

During Plaintiff’s time at JDCC after November 6, Plaintiff requested medication

adjustments twice, on November 12, 2020, and July 8, 2021, and filed no other requests

with staff members related to his injury. Id., pp. 22-23, ¶¶ 100-101. Plaintiff was

discharged from JDCC August 9, 2021, and filed the present case on June 8, 2022. He

underwent a bicep surgical repair on September 6, 2022. Id., p. 23, ¶¶ 102-104 & Docket

Nos. 1-2. In 2023, Plaintiff had some loss of strength. Docket No. 83, p. 19, ¶ 36; Docket

No. 87, p. 7, ¶ 37.

III. Applicable Law

Summary judgment is appropriate if the record 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). A genuine issue of material fact exists when “there is sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show

the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986), with the evidence taken in the light most favorable to the non-moving party,

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party asserting that

a fact cannot be or is genuinely disputed must support the assertion by . . . citing to

particular parts of materials in the record . . . or . . . showing that the materials cited do not

establish the absence or presence of a genuine dispute[.]” Fed. R. Civ. P. 56(c).

IV. Analysis

Defendant moves for summary judgment, asserting that she is entitled to qualified

immunity as Plaintiff fails to establish a constitutional violation of clearly established law.

Plaintiff alleges Defendant’s actions constituted deliberate indifference to his serious

medical need. For the reasons set forth below, the Court finds that Defendant’s summary

judgment motion should be granted.

“‘The doctrine of qualified immunity protects government officials from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Clark v. Wilson,

625 F.3d 686, 690 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). “Additional steps are taken when a summary judgment motion raises a defense

of qualified immunity.” Cunningham v. New Mexico, 2014 WL 12791236, at *4 (D. N.M.

May 12, 2014) (citing Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)).

“When a defendant asserts qualified immunity at summary judgment, the burden

shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and

(2) the constitutional right was clearly established. The court may consider either of these

prongs before the other ‘in light of the circumstances in the particular case at hand.’”

Cunningham, 2014 WL 12791236, at *4 (emphasis added) (quoting Pearson, 555 U.S. at

236). “In other words, immunity protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Mullenix v.

Luna, 577 U.S. 7, 11 (2015)). “If, and only if, the plaintiff meets this two-part test does a

defendant then bear the traditional burden of the movant for summary judgment—showing

that there are no genuine issues of material fact and that he or she is entitled to judgment

as a matter of law.” Rojas v. Anderson, 727 F.3d 1000, 1003 (10th Cir. 2013) (quotation

omitted).

A. Constitutional Violation.

“It is undisputed that the treatment a prisoner receives in prison and the conditions

under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling

v. McKinney, 509 U.S. 25, 31 (1993). Under the Eighth Amendment, “prison officials must

ensure that inmates receive adequate food, clothing, shelter, and medical care, and must

‘take reasonable measures to guaranty the safety of the inmates.’” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (emphasis added) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527

(1984)). Allegations of failure to provide medical care “must be judged against the

‘deliberate indifference to serious medical needs’ test of Estelle v. Gamble, 429 U.S. 97,

104 (1976).” Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992) (quoting Martin

v. Board of County Commissioners of County of Pueblo, 909 F.2d 402, 406 (10th Cir.

1990)); see also Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir. 1985) (“Failure

to provide adequate medical care is a violation of the Eighth Amendment if it is a result of

deliberate indifference to a prisoner’s serious medical needs.”) (citing Estelle, 429 U.S.

97). “[D]eliberate indifference to serious medical needs of prisoners constitutes the

unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle,

429 U.S. at 104 (citation and internal quotation marks omitted). “Certainly, not every

twinge of pain suffered as the result of delay in medical care is actionable.” Sealock v.

Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). “Prison personnel ‘may thus be liable

under § 1983 for indifference manifested in their response to the prisoner’s needs or by

intentionally denying or delaying access to medical care or intentionally interfering with

treatment once prescribed.’” Gray v. Sorrels, 744 Fed. Appx. 563, 567-568 (10th Cir.

2018) (quoting Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th Cir. 2014) (ellipses

and internal quotation marks omitted)).

“Our cases recognize two types of conduct constituting deliberate indifference.

First, a medical professional may fail to treat a serious medical condition properly. . . . The

second type of deliberate indifference occurs when prison officials prevent an inmate from

receiving treatment or deny him access to medical personnel capable of evaluating the need

for treatment.” Sealock, 218 F.3d at 1211. Plaintiff contends the second type applies here

because Defendant denied him access to medical personnel capable of evaluating his need

for treatment and failed to coordinate his care. “[T]he Tenth Circuit has recognized that

conduct constituting deliberate indifference may arise in the form of ‘a prison official

preventing an inmate from receiving medical treatment or denying access to medical

personnel capable of evaluating the inmate’s condition.’” Welsh v. Bishop, 2015 WL

1064155, at *4 (D. Colo. March 9, 2015) (quoting Self v. Crum, 439 F.3d 1227, 1231-1232

(10th Cir. 2006) (“A claim is therefore actionable only in cases where the need for

additional treatment or referral to a medical specialist is obvious.”)). As discussed in detail

below, “[t]hese claims include both an objective and a subjective component.” Gray, 744

Fed. Appx. at 568; see also Martinez, 563 F.3d at 1088 (“The test for deliberate

indifference is both objective and subjective.”) (citing Callahan v. Poppell, 471 F.3d 1155,

1159 (10th Cir. 2006)).

1. Objective Component. The Tenth Circuit has explained that the objective

component is based on the harm claimed by the Plaintiff, and “whether the harm suffered

rises to a level ‘sufficiently serious’ to be cognizable under the Cruel and Unusual

Punishment Clause.’” Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005) (quoting Farmer,

511 U.S. at 834). “Once the prisoner selects the harm, however, the focus of the objective

prong should be solely on whether that harm is sufficiently serious.” Mata, 427 F.3d at

753. A prisoner first must produce objective evidence that the deprivation at issue was in

fact “sufficiently serious.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 296 (1991)). “For

the objective component of a failure-to-treat claim, the inquiry is whether the prisoner’s

‘medical need is sufficiently serious[, that is,] if it is one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.’” Gray, 744 Fed.

Appx. at 568 (quoting Estate of Booker, 745 F.3d at 430 (ellipsis and internal quotation

marks omitted)); see also Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (“A

medical need is serious if it is one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor's attention.”) (internal quotation marks omitted). “When a prisoner

alleges that a delay in treatment caused him pain, if ‘the pain experienced during the delay

is substantial, the prisoner sufficiently establishes the objective element of the deliberate

indifference test.’” Gray, 744 Fed. Appx. at 568 (quoting Al-Turki v. Robinson, 762 F.3d

1188, 1193 (10th Cir. 2014) (internal quotation marks omitted)). “[D]elay in medical care

can only constitute an Eighth Amendment violation if there has been deliberate

indifference which results in substantial harm”; this “requirement may be satisfied by

lifelong handicap, permanent loss, or considerable pain.” Hardeman v. Smith, 2018 WL

1528160, at *8 (E.D. Okla. Mar. 28, 2018) (quotations omitted) (citing, inter alia,

Oxendine v. Kaplan, 241 F.3d 1272, 1276, 1278 (10th Cir. 2001)).

As found at the dismissal stage, Plaintiff has shown his medical condition is

sufficiently serious as to Defendant. Defendant understood that Plaintiff needed additional

testing in the form of an MRI. Plaintiff alleges he was in considerable pain and that the

delay in obtaining surgery following the MRI confirmation of injury could cause

permanent damage. Furthermore, evidence shows Defendant was aware Plaintiff had a

torn bicep with retraction, and that Dr. Greisman in his referral had indicated that, although

the radiology report was difficult to read, Plaintiff’s injury was likely time sensitive and in

need of surgical intervention depending on the diagnosis. Docket No. 80, Ex. 5, p. 29. A

confirmed torn bicep with retraction satisfies the objective component. See Watson v.

Corr. Corp. of Am., 2018 WL 1474895, at *3 (E.D. Okla. Mar. 26, 2018) (“Once the facility

physician examined Plaintiff, it was determined that he needed additional testing and then

surgical treatment. Therefore, the objective component of deliberate indifference has been

met.”). Indeed, “providing some care does not insulate a medical professional from

liability when the professional delays referral to a specialist.” Lucas v. Turn Key Health

Clinics, LLC, 58 F.4th 1127, 1138 (10th Cir. 2023).

2. Subjective Component. In contrast to the objective component, Plaintiff fails to

meet his burden as to the subjective component. The subjective component is met if a

prison official “knows of and disregards an excessive risk to inmate health or safety.”

Farmer, 511 at 837. “[T]he 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; see also Martinez, 563 F.3d at 1089 (“‘[T]he prisoner must show that the

defendants knew he faced a substantial risk of harm and disregarded that risk, by failing to

take reasonable measure to abate it.’”) (quoting Callahan, 471 F.3d at 1159). Additionally,

“[a] prisoner may satisfy the subjective component by showing that defendants’ delay in

providing medical treatment caused either unnecessary pain or a worsening of h[is]

condition. Even a brief delay may be unconstitutional.” Mata, 427 F.3d at 755 (collecting

cases); Winrow v. Stell, 2015 WL 3645702, at *7 (W.D. Okla. March 5, 2015) (“Denying

or delaying a prisoner's access to medical professionals capable of assessing or treating the

prisoner’s condition can establish the subjective component, particularly when unnecessary

pain or a worsened condition results.”). However, “[m]ere negligence by prison officials

or medical staff will not suffice to meet the subjective prong of deliberate indifference.”

Casanova v. Ulibarri, 2011 WL 13157058, at *6 (D.N.M. Sept. 1, 2011) (internal citations

omitted). Therefore, “[t]he question is: ‘were the symptoms such that a prison employee

knew the risk to the prisoner and chose (recklessly) to disregard it?’” Martinez, 563 F.3d

at 1089 (quoting Mata, 427 F.3d at 753); see also Whiteman v. El Paso Criminal Justice

Ctr., 2011 WL 2610202, at *4 (D. Colo. July 1, 2011) (“[A] general awareness of the

potential for harm is not enough; there must be a connection between the subjective

disregard of a risk of serious harm and the objective harm actually claimed.”) (emphasis

added) (citing Martinez, 563 F.3d at 1089 n.8).

“For the subjective component[,] the prisoner must present ‘evidence of the prison

official’s culpable state of mind. He must show that the prison official acted or failed to

act despite his knowledge of a substantial risk of serious harm.’” Gray, 744 Fed. Appx. at

568 (quoting Estate of Booker, 745 F.3d at 430). This is “akin to ‘recklessness in the

criminal law,’ where, to act recklessly, a ‘person must ‘consciously disregard’ a substantial

risk of serious harm.’ And ‘[w]hether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration in the usual ways, including

inference from circumstantial evidence.’ The fact that a serious medical need was

‘obvious’ could be evidence of deliberate indifference, although a ‘prison official may

show that the obvious escaped him’ and avoid liability.” Self, 439 F.3d at 1231 (quoting

Farmer, 511 U.S. at 837, 839, 842-843 & n. 8).

“Defendants will not be entitled to qualified immunity if the symptoms displayed

by Plaintiff were obvious enough to warrant a finding that Defendants knew of the risk of

a serious medical condition but disregarded that risk.” Marquez v. Board of County

Commissioners Eddy County, 2012 WL 12895017, at *5 (D. N.M. Dec. 3, 2012). “[A]

factfinder may conclude that a prison official knew of a substantial risk from the very fact

that the risk was obvious. . . .[I]t remains open to the officials to prove that they were

unaware even of an obvious risk to inmate health or safety. That a trier of fact may infer

knowledge from the obvious, in other words, does not mean that it must do so.” Farmer,

511 U.S. at 842-844.

Defendant contends Plaintiff has not shown an Eighth Amendment violation on this

prong, and the Court agrees. The intake form referenced by Dr. Chalkin in his evaluation

appears to indicate Plaintiff’s injury was three months old, rather than two months old.

Plaintiff contends Defendant had a duty to review and identify mistakes such as this in the

record. Plaintiff’s expert asserts that Defendant’s failure to correct this in the record

deviated from the standard of care. Docket No. 83, Ex. 6, p. 10. Deviation from the

standard of care, however, does not establish deliberate indifference. [T]he ‘negligent

failure to provide adequate medical care, even one constituting medical malpractice, does

not give rise to a constitutional violation.’ So 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.” Self, 439

F.3d at 1233 (quoting Perkins v. Kan. Dep’t of Corrections, 165 F.3d 803, 811 (10th Cir.

1999)). The mistake as to Plaintiff’s date of injury as relayed to Dr. Chalkin was out of

Defendant’s control.1 The records from the appointment with Dr. Chalkin reflect that

Plaintiff was told on that day (December 21) that surgery was too risky because they were

too far out from his injury. Docket No. 80, Ex. 12, p. 7. Defendant was not present for

this discussion, and the parties agree that Defendant had no obligation to follow up with

Plaintiff after his appointment with Dr. Chalkin.

Furthermore, whether Defendant was aware of all Dr. Chalkin’s qualifications or

not (a point upon which the parties disagree), Dr. Chalkin is a board-certified orthopedic

surgeon with a subspecialty in hand and upper extremity injuries, traumatic reconstruction,

and tendon and nerve repair. While Defendant had experience as an athletic trainer prior

to becoming a PA, any general understanding she had of treatment timelines for these types

1 Plaintiff denies completing two pages of his intake form for Dr. Chalkin, despite stating that he

signed a third page regarding his pain scale. Docket No. 83, p. 13, ¶ 80. However, he does not

allege that Hasenmyer took any part in completing this form.

of injuries could not override Plaintiff’s surgeon’s actual treatment plan. Once the MRI

was obtained, Defendant began that day the process of coordinating care for Plaintiff,

which ultimately involved consultation with and referral to multiple locations given the

complications of Plaintiff’s COVID diagnosis and scheduling conflicts at various clinics

around JDCC.

Plaintiff nevertheless propounds the “gatekeeper” theory of deliberate indifference,

whereby he contends Defendant’s role was “solely to serve as a gatekeeper for other

medical personnel capable of treating the condition,” Sealock, 218 F.3d at 1211, and that

she delayed or refused to serve that role due to deliberate indifference. Failure to properly

act as a gatekeeper occurs when a person “prevents an inmate from receiving treatment or

denies access to someone capable of evaluating the inmate’s need for treatment.” Lucas,

58 F.4th at 1137. “[I]t is possible to have some medical care and still state a claim under

the gatekeeper theory.” Id., at 1139. The Tenth Circuit instructs that the proper

determination on this question is “whether there was the functional equivalent of a

complete denial of care in light of the specific circumstances.” Id. Here, Defendant’s

actions do not cross that line. Defendant, a PA, promptly acquired a referral for Plaintiff

to a board-certified surgeon who assessed Plaintiff and prescribed a specific course of

treatment. There is no obligation for a PA to question a surgeon’s treatment decisions

under these circumstances, even if Defendant was both aware that the six-week window

was critical and that there was a date discrepancy on one of the multiple documents

reviewed by the surgeon. Defendant’s “good faith effort” to obtain care for Plaintiff was

sufficient here. Self, 439 F.3d at 1232. Defendant’s actions do not rise to the level of a

“complete denial of care.” Lucas, 58 F.4th 1139.

Despite the numerous setbacks in obtaining care for Plaintiff, most out of

Defendant’s control, Plaintiff was seen by a board-certified specialist within fourteen days

of the MRI. Plaintiff agrees that Defendant was not required to follow up with Plaintiff

after his appointment with Dr. Chalkin.2 See Docket No. 80, p. 21, ¶ 85 & Docket No. 83,

p. 13, ¶ 85. Plaintiff himself chose to refuse Dr. Chalkin’s prescribed course of treatment,

including physical therapy. Plaintiff’s claim of deliberate indifference cannot rest on a

disagreement as to diagnosis or treatment. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.

1993) (A Plaintiff’s “difference of opinion does not support a claim of cruel and unusual

punishment.”). Plaintiff therefore fails to establish a constitutional violation.

B. Clearly Established Law.

“The doctrine of qualified immunity protects government officials from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Clark v. Wilson,

625 F.3d 686, 690 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). Even assuming Plaintiff established a constitutional violation, the question

remaining is whether the violation was of clearly established law.

“Ordinarily, a plaintiff may show that a particular right was clearly established at

the time of the challenged conduct ‘by identifying an on-point Supreme Court or published

2 Plaintiff’s response to this proposed undisputed fact admits only that Defendant did not provide

Plaintiff with information regarding his visit with Dr. Chalkin but does not challenge that

Defendant had no further obligations.

Tenth Circuit decision; alternatively, ‘the clearly established weight of authority from other

courts must have found the law to be as [he] maintains.’” A.M. v. Holmes, 830 F.3d 1123,

1135 (10th Cir. 2016) (quoting Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015)).

However, “‘clearly established law’ should not be defined ‘at a high level of generality.’”

Pauly, 580 U.S. at 79 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, it

“must be ‘particularized’ to the facts of the case. Otherwise, plaintiffs would be able to

convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply

by alleging violation of extremely abstract rights.” Id. (quoting Anderson v. Creighton,

483 U.S. 635, 639-640 (1987)). In this Circuit, “[t]he right to custodial medical care is

clearly established.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002)

(citing Estelle, 429 U.S. at 104); see also Martin v. Bliss, 2016 WL 7046766, at *4 (E.D.

Okla. Dec. 2, 2016) (“[T]he Supreme Court has held that deliberate indifference to serious

medical needs of prisoners constitutes the unnecessary and wanton infliction of pain

proscribed by the Eighth Amendment.’”) (quoting Estelle, 429 U.S. at 104 (internal

quotations and citations omitted)); Blackmon v. Sutton, 734 F.3d 1237, 1245 (10th Cir.

2013) (“By 1997 this court had clearly held that the Eighth Amendment is offended not

only by medical professionals who fail to treat, but also by prison officials who assume

“gate keeping” authority over prisoner access to medical professionals.”).

Even though a delay in medical care “only constitutes an Eighth Amendment

violation where the plaintiff can show that the delay resulted in substantial harm[,]”

Oxendine, 241 F.3d at 1276 (quotation omitted), the Tenth Circuit has held “that the

substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or

considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001). Plaintiff

contends Defendant violated clearly established law by denying him access to medical

personnel who could evaluate him for treatment. Sealock, 218 F.3d at 1211 (“The second

type of deliberate indifference occurs when prison officials prevent an inmate from

receiving treatment or deny him access to medical personnel capable of evaluating the need

for treatment.”). Despite Defendant’s efforts to coordinate Plaintiff’s care, Plaintiff

contends that Defendant’s failure to find a second specialist who would perform a surgery

was a violation of clearly established law. Plaintiff asserts that he is not required to show

a case directly on point for a right to be clearly established, but he neglects the rest of that

rule from the Supreme Court, which clarifies that such is the case only when “existing

precedent must have [previously] placed the statutory or constitutional question beyond

debate.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (quoting Pauly, 580 U.S. at 79).

Plaintiff fails to meet his burden when he points to case law at such a high level of

generality. There is no clearly established law that a PA at a jail must order a second

opinion for a course of treatment where one supporting document (of many) contains an

inaccuracy but the inmate has not requested one and a specialist has already set a course of

treatment, nor has existing precedent placed this question beyond debate. Accordingly,

Defendant is entitled to qualified immunity.

CONCLUSION

Accordingly, the Court finds that the Defendant Hasenmyer’s Motion for Summary

Judgment [Docket No. 80] is hereby GRANTED. A separate Judgment will follow.

IT IS SO ORDERED this 24th day of July, 2025.

GERALD L. JACKSON

UNITED STATES MAGISTRATE JUDGE