                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                             May 7, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JOHN MICHAEL BROADUS,

      Plaintiff - Appellant,

v.                                                          No. 18-1284
                                               (D.C. No. 1:15-CV-00182-WJM-KLM)
CORRECTIONAL HEALTH                                          (D. Colo.)
PARTNERS, INC.,

      Defendant - Appellee,

and

COLORADO DEPARTMENT OF
CORRECTIONS,

      Defendant.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.
                 _________________________________




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
      John Michael Broadus, a Colorado state prisoner proceeding pro se,1 appeals

from the district court’s order granting summary judgment in favor of Correctional

Health Partners, Inc. (CHP) on his claim under 42 U.S.C. § 1983 for violation of his

Eighth Amendment rights. According to Broadus, CHP acted with deliberate

indifference to his serious medical needs when it denied a request from a physician

assistant at the medical clinic in Sterling Correctional Facility (Sterling) to send him

to an outside specialist for a magnetic-resonance-imaging scan (MRI).2 Exercising

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

                                   BACKGROUND

      On February 28, 2014, Broadus injured his right knee while playing basketball.

Over the next few days, Broadus unsuccessfully tried to get treatment for his knee.

On March 5, Lieutenant Luyando, a correctional officer, denied Broadus’s request to

declare a medical emergency. According to Broadus, he was told shortly thereafter

that he was being moved to a new cell and assigned to a top bunk. Broadus met with

Luyando and objected to the top bunk assignment because his knee injury prevented



      1
        Although Broadus is proceeding pro se on appeal, he was represented by
appointed counsel in the district court through discovery and summary-judgment
briefing.
      2
        Broadus also sued several Sterling employees for numerous alleged
violations of his constitutional rights. The district court granted summary judgment
in favor of all except two of the Sterling defendants, and those claims proceeded to
trial. The jury did not render a verdict, however, because Broadus and the remaining
defendants reached a settlement. Broadus appeals only from the summary judgment
in favor of CHP.

                                            2
him from climbing to a top bunk. When Broadus refused the reassignment, Luyando

ordered him moved to segregation.

      Before an inmate can be placed in segregation, he must undergo an anatomical

examination. The nurse who performed Broadus’s examination on March 5, 2014,

noted “[s]welling” in his right knee, but found “[n]o medical attention needed [at]

this time.” R., Vol. IV at 36.

      After Broadus completed his time in segregation, he was seen at the Sterling

medical clinic by Keri McKay, a physician assistant. In the “Subjective” part of her

treatment notes from a March 25, 2014 examination, McKay noted that Broadus

complained of a “dull constant ache” in his right knee and he reported “trying to just

take it easy on his knee with little relief.” Id. at 38. In the “Objective” section of her

notes, McKay wrote first that Broadus “ambulate[d] into clinic, in and out of chair

without difficulty,” but then noted that Broadus “[a]mbulate[d] with antalgic gait

favoring the right leg.” Id. Also, she reported that the “McMurr[a]y’s [test was]

positive in the right leg and negative in the left leg.” Id.3 McKay noted that she

would request an MRI to determine whether Broadus had a torn meniscus.

      McKay’s request for an MRI was sent to CHP, a private company under

contract with the Colorado Department of Corrections (CDOC). As part of its

services, CHP reviews requests and decides whether to authorize inmates to receive

medical care outside of CDOC’s internal medical system. CHP, however, does not

      3
         McMurray’s test involves “rotation of the tibia on the femur to determine
injury to meniscal structures.” Stedman’s Medical Dictionary 906520 (Westlaw ed.
Nov. 2014 update).
                                            3
have the final say on whether to authorize outside medical treatment for an inmate; a

denial of authorization can be appealed (but not by the inmate), and if the parties

cannot agree, the final decision is made by CDOC’s chief medical officer.

       The March 25 MRI request was reviewed and denied on April 10 by Stephen

R. Krebs, M.D., an adjudicator who worked for CHP, who wrote: “Declined at

present. Exam only partially suggestive, no plain films described or included, and no

conservative therapy described.” Id. at 138.

       On June 2, McKay submitted a second request to CHP for an MRI, which

stated in relevant part:

       Consulting for an MRI of his right knee due to needing further
       evaluation of joint damage. [Inmate] ambulating with antalgic gait,
       wearing knee brace, pain medications, and done physical therapy on his
       own with little relief. Will send encounter form 3/25/14. . . . Xrays
       returned and showing no evidence of bone damage. MRI prior was
       denied due to not having the xray. Has xrays and still needing an MRI
       to evaluate knee pain and underlying damage as McMurr[a]y’s test was
       positive, and he is having difficulty and pain with walking.

Id. at 15. On June 13, Dr. Krebs denied the second request because there was “no

objective impairment of ADLs [activities of daily living] noted.” Id. There is no

evidence of an appeal of either the April or June decision.

       In his deposition Dr. Krebs described his role as follows:

       [O]ur job was to evaluate information that was sent to us for medical
       necessity for a variety of requested referrals. We were given specific
       information and we were asked to make a decision based on that
       provided information and we were to do it based on clinical guidelines
       and some unique correctional overlays and then we were asked to make
       decisions.



                                           4
Id., Vol. I at 302–03. He was not to speak directly with providers. He later

explained what he meant by “correctional overlays”:

       [I]f an inmate came in with a medical process we were told it was not
       our responsibility that the patient left in dramatically better condition
       than they came in. . . . So, for instance, if you came in with a bad knee,
       if you came in with an ACL tear, that was a preexisting condition, we
       weren’t required to fix those. . . . [M]edically necessary were those
       things necessary to provide good basic healthcare so that a person could
       remain healthy and so that prisoners could continue to perform their
       ADLs in their environment.

Id. at 304. When asked about conditions that arose at prison, Dr. Krebs responded:

       [T]he idea was . . . that the individual needed to be able to where
       possible function in the ADLs. . . . We were not required to restore
       people to athletic greatness. So, there were cases where patients
       ruptured a muscle lifting weights and if their activities of daily living
       were not impaired, we were instructed not to authorize those because
       they were not required for basic healthcare or activities of daily living.

Id. He acknowledged the need for treatment of significant pain but noted that pain is

often treatable conservatively, without surgery. He provided an example: “Shortly

after an ACL disruption there is terrific pain. A surgical repair doesn’t alleviate that

pain. Anti-inflammatory, icing, the passage of time alleviates that pain. The surgical

procedure contemplated is not . . . a pain-relieving tool.” Id. at 306.

       Dr. Krebs was questioned specifically about the McMurray’s test. He opined:

“The sensitivity and specificity of McMurray’s test is 50 percent, which means it’s

wrong as much as it is correct. . . . McMurray’s test, since the specificity and

sensitivity is a crapshoot, is not considered particularly actually clinically helpful at

the present time.” Id. Dr. Krebs acknowledged that the Milliman Care Guidelines

were used in his work. He was asked if “[u]nder the Milliman Guidelines . . . there

                                            5
[is] any one factor that would be sufficient to warrant an MRI?” He responded:

“There’s no single factor that would be.” Id.

      On September 16, 2014, a different physician assistant at the Sterling medical

clinic submitted a request to CHP for Broadus to receive physical therapy. That

request was approved by CHP on October 6.

      According to Broadus, CHP violated his Eighth Amendment right to receive

medical care when Dr. Krebs, acting under company policy, denied the June request

for an MRI. (He does not challenge the denial of the March request.) Broadus

maintained that CHP’s “policy requiring the presentation of several factors to support

that an MRI is medically necessary” is contrary to “the medical standard for MRIs.”

Id., Vol. III at 26. As to the “medical standard,” Broadus presented testimony from a

physician whose opinion he paraphrased as follows: “[T]he McMurray’s test is the

general medical standard for patients with a meniscus injury,” and “an MRI is the

‘standard of care in the medical community’ where there is a positive McMurray’s

test.” Id. at 17.4 In other words, Broadus’s claim was based on his expert’s medical



      4
        It is not clear to us that the expert’s opinion was quite so categorical. We
note the following exchange in the limited portion of Dr. Jeffrey Wunder’s deposition
that appears in the appellate appendix:

             Q. Okay. And so your conclusion is that an MRI would be
      determinative of that issue, and that it is called for based on the history
      and physical presentation of Mr. Broadus?
             A. Well, firstly – and I think what these guys are saying is that
      even if there’s a high suspicion of meniscus injury, conservative
      treatment is warranted first.
             Q. Okay.
                                           6
judgment that the standard of care requires ordering an MRI if there has been a

positive McMurray’s test.

       The district court assumed that CHP had a policy that required the presentation

of several factors to support the medical necessity for an MRI; that Dr. Krebs

followed that policy when he denied the June 2, 2014 request; and that a positive

McMurray’s test is the standard of care in the medical community for performing an

MRI. Nonetheless, the court concluded that summary judgment was proper because

“[a] trial on this matter would essentially be asking a jury to listen to the testimony of

Dr. Krebs and the testimony of Broadus’s medical expert, and then to judge whether

[CHP] impermissibly deviated from the medical standard of care.” Id. at 445.

Relying on the well-established principle that mere medical malpractice cannot

rise to an Eighth Amendment violation, the court concluded that medical malpractice

that “allegedly flowed from an official policy” likewise did not rise to a

constitutional claim. Id.




               A. And that should have been – that should have been with the
       physical therapist. It should be supervised physical therapy. In this
       particular case, he was – stated he was given some [transcript terminates
       at that point].

R., Vol. III, at 35.

                                            7
                                     ANALYSIS

Summary Judgment

      We review de novo the district court’s grant of summary judgment, applying

the same standard that the district court is to apply. See Sealock v. Colorado,

218 F.3d 1205, 1209 (10th Cir. 2000). Summary judgment is proper “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). “We construe the

factual record and the reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005).

Eighth Amendment

      Broadus’s Eighth Amendment claim was based on the “gatekeeper” theory of

liability. See Sealock, 218 F.3d at 1211. That theory governs when “prison officials

prevent an inmate from receiving treatment or deny him access to medical personnel

capable of evaluating the need for treatment.” Id.

      “A prison official’s deliberate indifference to an inmate’s serious medical

needs violates the Eighth Amendment.” Id. at 1209. “The test for deliberate

indifference is both objective and subjective.” Martinez v. Beggs, 563 F.3d 1082,

1088 (10th Cir. 2009). Normally, the objective component requires that the harm be

sufficiently serious to implicate the Eighth Amendment. See id. Where gatekeeper

liability is involved, the objective component requires “substantial harm,” which

includes delay leading to “lifelong handicap, permanent loss, or considerable pain.”



                                           8
Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014) (internal quotation marks

omitted).

      “The subjective prong of the deliberate indifference test requires the plaintiff

to present evidence of the prison official’s culpable state of mind.” Mata, 427 F.3d

at 751. Under this standard, “a prison official cannot be liable unless the official

knows of and disregards an excessive risk to inmate health or safety; 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.” Self v. Crum, 439 F.3d

1227, 1231 (10th Cir. 2006) (internal quotation marks omitted). Such an inference

cannot be drawn solely from evidence that a diagnosis or course of treatment was

debated or debatable. See Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006)

(prisoners do not have Eighth Amendment right to a particular course of treatment);

Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (same). “[T]he

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

(internal quotation marks omitted).

      In addition, as the district court explained, “Broadus’s case against CHP

involves another layer of complexity because CHP is a business entity, not a natural

person.” R., Vol. III at 444. In a suit under § 1983, a private entity acting under

color of state law “cannot be held liable solely because it employs a tortfeasor.”

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (internal quotation

marks omitted). Instead, Broadus was required to identify an official policy or a

                                           9
custom that was the “direct cause” or “moving force” behind the constitutional

violation. Id. at 1215 (internal quotation marks omitted).

       According to Broadus, summary judgment was inappropriate because

“a genuine issue of material fact exists whether Dr. Krebs’s denial of Mr. Broadus’s

[MRI] was representative of a CHP policy to deny MRIs even though they were

medically necessary and required for basic medical standards.” R., Vol. III at 26

(emphasis added). But even if Dr. Krebs erred regarding the utility of the

McMurray’s test when he declined the request for an MRI, negligence cannot sustain

a deliberate-indifference claim. Thus there was no constitutional violation, so CHP

policy is irrelevant. We affirm the district court’s grant of summary judgment.

Supplementing the Record

       Broadus also argues that the district court abused its discretion when it

accepted the Milliman Care Guidelines as part of the summary-judgment record.

CHP did not produce relevant sections of the Guidelines until its reply brief on

summary judgment. Without attributing any fault to CHP, the district court decided

that it was “in the interest of justice . . . to accept the . . . Guidelines as a part of the

record.” Aplee. Supp. R. at 7. But the district court did not mention the Guidelines

or rely on them in resolving the motion for summary judgment. Nor do we rely on

them on appeal. Because the issue “has no bearing on the ultimate outcome of [the]

case,” we will not address it on appeal. Orr v. City of Albuquerque, 417 F.3d 1144,

1154 (10th Cir. 2005).



                                              10
                            CONCLUSION

The judgment of the district court is affirmed.

                                     Entered for the Court


                                     Harris L Hartz
                                     Circuit Judge




                                   11
