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

                           FOR THE TENTH CIRCUIT                      November 20, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
STEPHEN CRAIG BURNETT,

             Plaintiff - Appellant,

v.                                                        No. 14-7069
                                              (D.C. No. 6:12-CV-00158-RAW-SPS)
KATHY MILLER; RAYMOND                                      (E.D. Okla.)
LARIMER; NANCY COLPETZER;
MARK REIHELD,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, Chief Judge, O’BRIEN and GORSUCH, Circuit Judges.


      Stephen Craig Burnett is an inmate in the custody of the Oklahoma

Department of Corrections (ODOC). Proceeding pro se, he appeals1 from a summary

judgment entered in favor of defendants Kathy Miller, R.N., Raymond Larimer, R.N.,

Nancy Colpetzer, R.N., and Mark Reiheld, M.D., all members of the medical staff at

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
      Our jurisdiction derives from 28 U.S.C. § 1291.
the Davis Correctional Facility (DCF), a private prison. Burnett’s complaint rests on

42 U.S.C § 1983 and state law. Specifically, he claims all of the defendants were

deliberately indifferent to his serious medical needs (a heart condition), and the

conditions in a medical cell where he was temporarily housed amounted to cruel and

unusual punishment, in violation of the Eighth Amendment. He also alleged a First

Amendment violation, charging that Miller did not properly attend to his medical

needs in retaliation for prior litigation he brought against personnel at another prison.

With one exception, we affirm the summary judgment. We remand for the district

judge to attend to a matter previously overlooked, namely, whether Burnett’s

complaints about the conditions in the medical cell where he was temporarily placed

rise to the level of a constitutional violation. We also attend to two collateral

matters: we reverse both the determination that Burnett has three previous strikes

and that the dismissal of this action qualifies as a strike under 28 U.S.C. § 1915(g).

I.    Factual Background

      On November 5, 2011, while incarcerated at DCF Burnett submitted a request

for medical services, based on the chest pains he experienced after minor exertion.

He was seen in the DCF clinic the following day by defendant Colpetzer, a registered

nurse. He reported his chest pains were intermittent but sharp and accompanied by

shortness of breath, but with rest the pain resolved within a couple of minutes.

Colpetzer measured Burnett’s blood pressure, respiration rate, pulse, and

temperature. His blood pressure was elevated, but his respirations were even, his


                                          -2-
lungs were clear, his skin was pink and warm, he was awake, alert, and oriented, and

he did not appear to be in any distress. Colpetzer assessed his chest pain as cardiac,

musculoskeletal, or pleuritic. Based on the reported symptoms and her examination,

she decided to administer an electrocardiogram (ECG). Although Colpetzer did not

interpret the ECG report, she noted it indicated a “normal” ECG. R., Vol. III at 71,

72. She submitted the ECG report for review by defendant Reiheld, the DCF

physician.

      Colpetzer instructed Burnett to return to the clinic in one week for another

blood pressure check. She also recommended scheduling him for an appointment

with Reiheld. However, a 30-day wait to see Reiheld was not uncommon. Because

she assessed Burnett’s condition as not emergent, Colpetzer did not believe it was

necessary to accelerate the scheduling of an appointment.

      Reiheld reviewed Burnett’s ECG report a four days later, on November 10, and

determined the results were normal. Burnett returned to the clinic on November 12,

and Colpetzer again checked his blood pressure. She reported his blood pressure

remained elevated, and noted his continued complaints of chest pain with activity, as

well as his denial of pain while resting or upon waking up. She recorded her plan to

re-check Burnett’s blood pressure the next day and if elevated to schedule an

appointment with Reiheld. That same day, Burnett submitted a second request for

medical services, asking to see a doctor about his frequent chest pains. On

November 13, Burnett returned to the clinic. Colpetzer took his blood pressure and


                                         -3-
reported it was within normal reference ranges. She also noted his continued chest

pains with activity and his request to see a doctor.

      Burnett’s November 12 request for medical services was received by the clinic

on November 14, and he was scheduled for an appointment on November 22. On

November 21, the day before that appointment, Burnett submitted a third request for

medical services stating, “I want to talk to a medical doctor ASAP. Any minor

exertion causes chest pains. I am 62 years old.” Id. at 65. Defendants contend

Burnett was scheduled to see Reiheld on November 22. But Burnett denies receiving

notice of such an appointment. He claims the appointment was for another blood

pressure check and, noting his continuing chest pain, denies failing to appear for any

appointment with Reiheld. He does not deny failing to go to the clinic on November

22 for a blood pressure re-check.

      Burnett submitted a fourth request for medical services on December 4,

stating, “I want to see the doctor. Even minor exertion causes me great chest pain.”

Id. at 66. On December 7, Burnett was in the prison library when he was told to go

to the clinic. Upon his arrival a duty nurse measured his vital signs and administered

a second ECG. This time, the report indicated an “abnormal” ECG. Id. at 81. The

nurse placed Burnett on Reiheld’s appointment schedule, and Reiheld saw him the

same day.

      At his appointment with Reiheld, Burnett reported a three-week period of

recurring chest pain with any significant walking or excitement. He also reported no


                                          -4-
previous history of heart problems or chest pain, but said his father had suffered from

a stroke at age 68. Reiheld recorded Burnett’s blood pressure as 144/91 and noted

his previous borderline-elevated blood pressure readings and lack of blood pressure

medication. Reiheld’s general assessment of Burnett’s condition on December 7 was

“good.” Id. at 82. His diagnosis was “angina new onset,” and his stated plan for

Burnett was “schedule for imaging procedure asap.” Id. at 83. Because he did not

assess Burnett’s condition as emergent, Reiheld did not believe immediate

transportation to another medical facility was necessary at that time.

      Beginning on the afternoon of December 7, Reiheld and Miller, the DCF

Health Services Administrator, placed Burnett in an observation cell within the DCF

clinic. At that location, he would be readily accessible for transportation once an

appointment for an imaging stress test was scheduled at the Oklahoma Heart Hospital

(OHH), and he could be monitored in the interim. Burnett contends the conditions in

the medical cell—specifically, a lack of heat when the outside temperature was below

freezing and a failure to provide him food or drink for a day and half—amounted to

cruel and unusual punishment. See id. at 271 (Burnett aff. in opposition to summary

judgment). According to the nurses’ log for December 8 at 9:30 p.m., Burnett was

doing fine and had no complaints of pain or distress at that time. Id. at 84. A

monitoring form dated December 9 showed him to be asleep from midnight until

6:00 a.m., and lying or sitting until 8:00 a.m. That form also included the notation,




                                         -5-
“Notify Health Services Staff For: NPO – Ø food or drink.”2 Id. at 85. As of

8:30 a.m. on December 9, Burnett was being transported to OHH.

      Burnett underwent a myocardial perfusion imaging stress test at OHH on

December 9, during which he experienced fatigue and mild dyspnea, as well as

severe chest discomfort, which was treated with nitroglycerin. The test showed

severely abnormal cardiovascular perfusion.3 An OHH doctor discussed the test

results with Burnett, after which he was taken to the OHH emergency department,

where he later reported he was pain free. Because the Oklahoma University Medical

Center (OUMC) typically provides hospital care for inmates, OHH attempted to

transfer Burnett there for further treatment. But OUMC had no beds available at that

time so he was admitted to OHH for monitoring in the interim.

      Burnett was transferred to OUMC three days later, on December 12, where he

underwent a left heart catheterization and the placement of three stents. According to

the OUMC physicians, the procedure was successful. In discharge notes, they

recommended a follow-up cardiology appointment in one to two weeks, a healthy

heart diet, a daily aspirin regimen, and Effient or Plavix for at least a year. Burnett

was discharged from OUMC on December 13 and returned to DCF. Defendant

2
     “NPO” is a medical abbreviation for the Latin “non per os,” meaning “nothing
by mouth.” Stedman’s Medical Dictionary 612240 (Westlaw ed. Nov. 2014).
3
       Burnett claims he suffered a heart attack during the stress test, resulting in
permanent heart damage. As explained in Section III.D, infra, we need not consider
these assertions because he fails to show a genuine factual dispute regarding whether
defendants violated his constitutional rights in connection with his medical care.


                                          -6-
Larimer, a registered nurse, examined him that day. Burnett told Larimer he was

feeling fine and had no shortness of breath or chest pain.

      Burnett received a number of medications following the stent procedure at

OUMC. Reinheld gave him eight Plavix pills on December 13, and he continued to

receive Plavix for one year, as recommended by the OUMC physicians. Reiheld also

prescribed aspirin, naproxen, Tylenol, Lisinopril, Lipitor, Nitrostat, Colace,

Lopressor, and Milk of Magnesia. With the exception of Lipitor, Burnett received

his first 30-day supply of medications on December 16. Because the prison

pharmacy did not carry Lipitor, Reiheld substituted Pravachol, another

cholesterol-lowering medication, but provision of that drug was delayed while the

pharmacy obtained it. Consequently, Burnett did not receive Pravachol until

February 2012.

      Burnett had a follow-up appointment with a physician at OUMC on March 6,

2012. He told the doctor he was doing well after the stent procedure, had no angina

or chest pain, had not used any nitroglycerin, and had received his medications. The

OUMC physician increased Burnett’s Pravachol dosage and recommended lowering

his LDL cholesterol to a target level of 70. As of November 2012, Burnett’s LDL

cholesterol had dropped to 78.

II.   Procedural Background

      Burnett filed this action against defendants in April 2012, asserting claims

under § 1983 and state law. He alleged (1) he was denied prompt and adequate


                                          -7-
medical care, in violation of the Eighth Amendment and state law; (2) the conditions

in the medical cell amounted to cruel and unusual punishment, in violation of the

Eighth Amendment; (3) Miller retaliated against him for exercising his First

Amendment right to access the courts; and (4) he suffered extreme emotional distress

as a result of defendants’ conduct, in violation of the Eighth Amendment and state

law.

       The judge determined that Burnett had three strikes under 28 U.S.C. § 1915(g),

and therefore denied his motion to proceed without prepayment of fees and costs.

Burnett then paid the filing fee.

       Defendants ultimately moved for summary judgment, which was entered as to

Burnett’s federal claims; the judge declined to exercise jurisdiction over his state-law

claims. In the summary judgment the judge stated that Burnett’s action was

dismissed “as frivolous and malicious” and counted this dismissal as yet another

strike under § 1915(g). R., Vol. III at 463.

III.   Discussion

       Burnett here makes these arguments: (1) denying numerous motions he filed

before the entry of summary judgment was an abuse of discretion; (2) staying the

action pending the filing of a Special Report4 by defendants violated his right of


4
       The district court ordered defendants to “undertake a review of the subject
matter of the complaint (a) to ascertain the facts and circumstances; (b) to consider
whether any action can and should be taken by the institution(s) or other appropriate
officials to resolve the subject matter of the complaint; and (c) to determine whether
                                                                             (continued)
                                            -8-
access to the courts; (3) genuine issues of disputed material facts foreclosed summary

judgment; (4) he does not have three strikes, which would preclude him from

pursuing this action without prepayment of fees and costs; and (5) this case is not

frivolous and malicious and should not count a strike.5

      We liberally construe a pro se appellant’s briefs. Cummings v. Evans,

161 F.3d 610, 613 (10th Cir. 1998). But a pro se party must comply with the same

procedural rules as other litigants. Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005). In particular, an appellant’s argument must cite

the parts of the record on which he relies. Fed. R. App. P. 28(a)(8)(A). Therefore, to

the extent Burnett makes factual assertions in his appeal briefs without providing

citations to the record, we will not search the lengthy record to find evidentiary

support for his claims. See Phillips v. James, 422 F.3d 1075, 1081 (10th Cir. 2005).

other like complaints, whether pending in this court or elsewhere, are related to this
complaint and should be taken up an considered together.” R., Vol. I at 52.
Defendants were directed to file a written report along with their answer to the
complaint. See Martinez v. Aaron, 570 F.2d 317, 319-320 (10th Cir. 1978)
(approving procedure requiring defendants in § 1983 actions to file such reports “to
develop the facts as to the color of state law and to enable the trial court to make the
preliminary decisions”).
5
       We do not address two other contentions Burnett raises in his opening brief.
He claims to have exhausted his administrative remedies before filing his complaint.
But summary judgment was not entered on that basis. Rather, the judge dismissed as
moot defendants’ motion raising that contention when it entered summary judgment
on the merits of Burnett’s claims. He also claims both the district and magistrate
judges exhibited bias against him. He fails to state where he raised this claim in the
district court, through a motion for recusal or otherwise. And he makes no attempt to
show plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28
(10th Cir. 2011).


                                          -9-
Also, simply asserting the trial court erred, without advancing a reasoned argument

for reversal, is insufficient appellate argument to invoke our review. See Habecker v.

Town of Estes Park, 518 F.3d 1217, 1223 n.6 (10th Cir. 2008).

      A.     Challenges to Orders Preceding Summary Judgment6

      Burnett maintains the district court abused its discretion in denying a number

of motions he filed before the court entered summary judgment in defendants’ favor.

But we lack jurisdiction to review many of these denial orders because they were

entered by the magistrate judge and Burnett failed to file objections. See S.E.C. v.

Merrill Scott & Assoc., Ltd., 600 F.3d 1262, 1269 (10th Cir. 2010) (magistrate-judge

orders are appealable only after properly filed objections are resolved by the district

court); Fed. R. Civ. P. 72(a) (“A party may not assign as error a defect in the

[magistrate judge’s] order not timely objected to.”).

      Burnett also maintains the district court abused its discretion by staying the

action for 142 days pending the filing of a Special Report by defendants. He argues

the stay order denied him access to the courts because it precluded him from filing

anything in this action even after defendants failed to file their Special Report by the

court-imposed 60-day deadline. But the stay order was also entered by the magistrate




6
       We separately address Burnett’s challenge to the district court’s denial of his
application to proceed without prepayment of fees and costs after finding Burnett had
three strikes under 28 U.S.C. § 1915(g).


                                         - 10 -
judge and Burnett did not file timely objections to it. Therefore, we lack jurisdiction

to review the stay order as well.7

      A few of the motions Burnett identifies were ultimately denied as moot by the

district court when it granted defendants summary judgment. These include a motion

to compel discovery, two motions to clarify discovery orders entered by the

magistrate judge, a motion for subpoenas duces tecum, and a motion for the

appointment of a court reporter to take depositions on written questions. But Burnett

boldly states, without elaboration, that the court abused its discretion in denying

these motions, an insufficient argument to invoke our appellate review.

      B.     Summary Judgment on Eighth Amendment Claims

      We review a district court’s grant of summary judgment de novo. Callahan v.

Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006). 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). To avoid

summary judgment, a plaintiff must come forward with evidence and cannot rely on
7
       Burnett did not file objections to the stay order within fourteen days of its
entry, as required by Fed. R. Civ. P. 72(a). He did file objections within fourteen
days of the defendants’ filing of the Special Report. Burnett contends the terms of
the stay order precluded him from submitting any filings, including his objections,
until defendants filed their Special Report and the stay order expired. Not so. Filing
objections at that point was not timely under Rule 72(a). After a stay order has
expired or been lifted, a district court has no opportunity to modify or reverse the
order as desired by the party raising objections. Thus, where a party wishes to object
to a magistrate judge’s order staying all filings pending specified action by one of the
parties, he must bring those objections to the district court’s attention within the time
provided by Rule 72(a) rather than lying behind the log.


                                         - 11 -
“speculation, conjecture, or surmise.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.

2006) (internal quotation marks omitted).

             1.     Medical-Mistreatment Claims

       To succeed on an Eighth Amendment medical-mistreatment claim, a prisoner

must demonstrate “acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Id. (internal quotation marks omitted). The

court’s inquiry is comprised of objective and subjective components. “Under the

objective inquiry, the alleged deprivation must be sufficiently serious to constitute a

deprivation of constitutional dimension.” Id. (internal quotation marks omitted). The

medical risk Burnett faced—angina-related chest pains—is a sufficiently serious risk

to satisfy the objective prong. See id. at 1233. That brings us to the second prong of

the test.

       “[U]nder the subjective inquiry, the prison official must have a sufficiently

culpable state of mind.” Id. at 1230-31 (internal quotation marks omitted). This is

“akin to recklessness”: “consciously disregard[ing] a substantial risk of serious

harm.” Id. at 1231 (internal quotation marks omitted). In the context of a

medical-treatment claim, two types of conduct may constitute deliberate indifference:

“(1) a medical professional failing to treat a serious medical condition properly; and

(2) a prison official preventing an inmate from receiving medical treatment or

denying access to medical personnel capable of evaluating the inmate’s condition.”

Id. Importantly, negligent diagnosis or treatment is not enough to demonstrate a


                                         - 12 -
constitutional violation. Id. at 1230. Thus, “the subjective component is not

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

his considered medical judgment.” Id. at 1232. And “an official’s failure to alleviate

a significant risk that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as the infliction of

punishment.” Farmer v. Brennan, 511 U.S. 825, 838 (1994).

                    a.     Claim of Medical Mistreatment From November 5
                           Through December 9, 2011

      Burnett contends the medical care he received from defendants8 before his

stent procedure was neither prompt nor adequate. He maintains defendants were

deliberately indifferent to his serious medical needs when they delayed transporting

him to a hospital for further treatment until December 9, 2011, after he began

reporting severe chest pain more than a month earlier, on November 5. More

specifically, he contends defendants failed to follow ODOC medical protocols to


8
        Defendants ought not to be treated as fungible commodities. A plaintiff is
required to identify specific acts or omissions by each defendant entitling him to
relief as to that defendant. See Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir.
2013) (stressing that plaintiffs bringing § 1983 lawsuits naming multiple defendants
must “make clear exactly who is alleged to have done what to whom” (internal
quotation marks omitted)). Burnett often refers generally to “defendants,” without
specifying an individual defendant. As an example, he does not mention Larimer
anywhere in his opening brief. We construe his claims regarding his medical
treatment from November 5 through December 9, 2011, as brought only against
Colpetzer, Reiheld, and Miller.
        We, too, have referred to defendants collectively, but only in reference to their
joint filings and shared arguments in the district court and in this court.


                                          - 13 -
properly assess his heart ailment and take appropriate action. He maintains

Colpetzer’s nursing assessment on November 6 was inadequate under ODOC

protocols, and defendants should have administered blood and urine tests, and a chest

x-ray. Burnett also contends defendants were deliberately indifferent in failing to

administer a second ECG before December 7, in light of his continued complaints of

frequent chest pains, and considering his age and risk factors. He complains,

“Defendants fixated on [his] high blood pressure and totally ignored his repeated and

specific complaints of severe chest pain. And then they did not even give him blood

pressure medication.” Aplt. Opening Br. at 12.9

      These facts fail to meet the “high evidentiary hurdle” necessary to demonstrate

the subjective prong of a deliberate indifference claim. Self, 439 F.3d at 1232.

Rather, the evidence shows Colpetzer, Reiheld, and Miller made good faith efforts to

diagnose and treat Burnett’s medical condition. See id. Burnett reported having

chest pains with exertion, but Colpetzer did not know if the pain was cardiac,

musculoskeletal, or pleuritic. She did administer an ECG on November 6, 2011, but

that test was normal, as indicated on the test report and as confirmed by Reiheld four

days later. Burnett wanted to see a doctor, but the evidence showed the wait for a

physician appointment could be up to 30 days at DCF, absent an emergency. In the
9
       Burnett also argues the district court considered defendants’ Special Report,
but ignored his motion to supplement the Special Report and his objections to it,
which the court did not mention in its summary judgment order. But Burnett fails to
develop this argument by pointing to anything in these filings the court allegedly
ignored that precludes summary judgment on his federal claims.


                                        - 14 -
interim, Colpetzer continued to monitor Burnett’s blood pressure, which ultimately

measured within normal ranges on November 13. She recorded his continuing

complaints of chest pain, but noted his denial of pain while resting or upon waking.

      No evidence suggests Burnett attended his appointment on November 22 for a

blood pressure re-check.10 In response to his fourth request for medical services on

December 4, Burnett was summoned to the clinic on December 7, where he was

given another ECG test, the result of which, for the first time, was abnormal. In

response to that new information, the duty nurse promptly placed him on Reiheld’s

appointment schedule and he was seen by Reiheld the same day.

      Reiheld diagnosed “angina new onset” and determined Burnett needed an

imaging test as soon as possible. That test required transportation to OHH. Having

assessed Burnett’s general condition on December 7 as “good,” Reiheld did not

believe Burnett required immediate transportation. Burnett points to no evidence that

Miller delayed his transfer to OHH in spite of knowing his condition was emergent.

While housed in a medical cell awaiting an appointment and transport, Burnett did

not complain of chest pains. He was transferred to OHH on December 9, where a

stress test was administered and a cardiologist determined he required further

treatment for angina. Burnett received that treatment at OUMC on December 12.



10
      Burnett admits he did not keep the blood pressure appointment, but denies
having received notice of an appointment with Reiheld that day. For purposes of this
appeal we accept his version of events.


                                        - 15 -
      These facts do not show a conscious disregard of Burnett’s serious medical

needs. At worst, they show that Colpetzer and Reiheld initially misdiagnosed his

condition. “But a misdiagnosis, even if rising to the level of medical malpractice, is

simply insufficient under our case law to satisfy the subjective component of a

deliberate indifference claim.” Id. at 1234. Thus, if an inmate’s symptoms could

suggest multiple different diagnoses, the fact a medical provider mistakenly treated

the wrong condition is not enough to establish a culpable state of mind under the

subjective prong—even if the provider’s medical judgment was objectively

unreasonable. See id.11

      Burnett nonetheless argues it was obvious his heart ailment required

emergency treatment. See id. at 1232 (recognizing an actionable deliberate

indifference claim “where the need for additional treatment or referral to a medical

specialist is obvious”). He contends the extent of the stent procedure performed at

OUMC proves his heart condition was almost fatal and obviously emergent. But

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

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



11
       To the extent he failed to prove more than a difference of opinion about the
appropriateness of the medical treatment he received, Burnett asserts he was
prevented from marshaling the necessary evidence because the district court refused
his requests to obtain testimony from an expert medical witness, as well as his
motions to appoint counsel. But we have already ruled we lack jurisdiction to review
those issues due to Burnett’s failure to file objections to the relevant orders entered
by the magistrate judge.


                                         - 16 -
treatment necessary.” Id. at 1233. Thus, we must consider only facts known to each

defendant at the time he or she had contact with Burnett.

                    b.     Claim of Medical Mistreatment After the Stent
                           Procedure

      Burnett contends Reiheld was deliberately indifferent to his serious medical

needs after he returned to DCF on December 13, 2011, following the stent procedure

at OUMC. He points to (1) Reiheld’s two-month delay in providing him a

cholesterol drug; (2) evidence his ECG remained abnormal after the stent procedure;

(3) the OUMC physicians’ diagnosis of unstable angina; and (4) the OUMC

discharge instructions recommending a healthy heart diet, an aspirin regimen, and a

follow-up visit with a cardiologist in one to two weeks. As Burnett would have it,

Reiheld was aware of this information yet failed to follow the recommended

protocol. In particular, Burnett complains of not receiving a cholesterol drug until

February 2012, after he filed a grievance. And his follow-up cardiology appointment

was not scheduled until March 6, 2012, again after he filed a grievance. Burnett also

maintains defendants failed to administer further diagnostic tests after the stent

procedure and instead “wholly ignored him.” Aplt. Opening Br. at 10.

      These facts, considered in light of all of the facts of his case, again fail to

satisfy the subjective prong of the deliberate indifference inquiry. Burnett points to

no evidence he reported any serious medical condition to DCF medical staff

following the stent procedure. He admits he received all of the medications

recommended in his OUMC discharge instructions, including aspirin. Although he

                                          - 17 -
did not immediately receive a cholesterol drug, the evidence indicates it was delayed

by the need to obtain a substitute drug. Moreover, a cholesterol drug was not an

essential medication immediately following Burnett’s stent procedure. See R., Vol.

III at 133 (Miller Aff. stating, “While a cholesterol lowering drug is important to

Mr. Burnett’s overall treatment plan, it was not immediately an essential

medication.”). Burnett filed a grievance about the delay in scheduling a follow-up

cardiology appointment. But the evidence shows, as of December 28, 2011, that

Reiheld had submitted an appointment request to OUMC, and DCF was awaiting a

response. As of February 2012, DCF had requested an expedited appointment. At

his follow-up appointment on March 6, 2012, Burnett reported he was doing well,

had no angina or other chest pain, and had not used any nitroglycerin.

      Burnett fails to establish any deviation from the OUMC discharge protocol

that rose to the level of recklessness or an extraordinary degree of neglect. See Self,

439 F.3d at 1231-32. Moreover, Burnett has not demonstrated any delay in providing

his cholesterol drug or in scheduling his follow-up appointment caused him

substantial harm. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (“Delay in

medical care can only constitute an Eighth Amendment violation if there has been

deliberate indifference which results in substantial harm.” (internal quotation marks

and brackets omitted)).12


12
       Burnett argues the district court ignored his contention of a pattern and
practice of defendants denying prompt and adequate medical care to DCF inmates.
                                                                             (continued)
                                          - 18 -
             2.     Claim the Medical Cell Conditions Amount to Cruel and
                    Unusual Punishment.

      The Eighth Amendment’s prohibition of cruel and unusual punishment

imposes a duty on prison officials to provide humane conditions of confinement,

including adequate food, clothing, shelter, sanitation, medical care, and reasonable

safety from serious bodily harm. Farmer, 511 U.S. at 832. “To prevail on a

‘conditions of confinement’ claim under the Eighth Amendment, an inmate must

establish that (1) the condition complained of is sufficiently serious to implicate

constitutional protection, and (2) prison officials acted with deliberate indifference to

inmate health or safety.” Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004)

(internal quotation marks omitted).




He mentions two inmates who allegedly died as a result of their inadequate care, and
two other inmates who defendants allegedly denied medication prescribed after their
stent procedures. Burnett claims to have filed affidavits from three inmates
supporting his pattern-and-practice contention, but he fails to identify where these
affidavits are in the voluminous record.
       Burnett also cites Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980), in support
of this proposition. But Ramos stated, “In class actions challenging the entire system
of health care, deliberate indifference to inmates’ health needs may be shown by
proving repeated examples of negligent acts which disclose a pattern of conduct by
the prison medical staff.” Id. at 575 (emphasis added). Burnett did not file a class
action. Moreover, to the extent a prison’s pattern and practice may be relevant to the
question of deliberate indifference regarding an individual inmate’s treatment,
cf. McDonnell Douglas Corp., v. Green, 411 U.S. 792, 804-05 (1973) (holding in
employment discrimination case that statistical evidence of employer’s general policy
and practice may be relevant circumstantial evidence of discriminatory intent behind
individual employment decision), Burnett does not cite admissible evidence
supporting his claim of such a pattern and practice at DCF.


                                         - 19 -
       Burnett contends disputed issues of material fact precluded summary judgment

on his complaints about the conditions in the medical cell, while he temporarily

awaited transport to OHH. Liberally construed, Burnett raised this claim in his

complaint, but defendants did not address it in their summary judgment motion. In

response to that motion, Burnett came forward with evidence of the lack of heat and a

directive to withhold food or drink while he was housed in the medical cell for over

twenty-four hours. In their district court reply brief, defendants ignored these facts.

Although the district court mentioned Burnett’s evidence regarding a lack of heat, it

did not address his evidence of a refusal of food or drink, and it ultimately did not

make any explicit ruling on this claim when it granted summary judgment in favor of

defendants on all of Burnett’s federal claims. Defendants once again ignore this

evidence in their appeal brief.

       Where a district court has failed to rule on a claim, we ordinarily remand to the

district court to consider the claim in the first instance. See Tabor v. Hilti, Inc.,

703 F.3d 1206, 1227 (10th Cir. 2013). We discern no reason to deviate from that

practice with regard to this claim, the proper resolution of which is not “beyond any

doubt.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). We have said that, “[i]n

general, the severity and duration of deprivations are inversely proportional, so that

minor deprivations suffered for short periods would not rise to an Eighth Amendment

violation, while substantial deprivations of shelter, food, drinking water, and

sanitation may meet the standard despite a shorter duration.” DeSpain v. Uphoff,


                                          - 20 -
264 F.3d 965, 974 (10th Cir. 2001) (internal quotation marks omitted). Moreover,

“[b]ecause it is difficult, if not impossible, to prove another person’s actual state of

mind, whether an official had knowledge may be inferred from circumstantial

evidence,” and “a factfinder may conclude that a prison official knew of a substantial

risk from the very fact that the risk was obvious.” Id. at 975 (internal quotation

marks omitted). We therefore remand to the district court to examine these issues

and rule on Burnett’s claim that the medical cell conditions violated the Eighth

Amendment.

      C.     First Amendment Retaliation Claim

      Burnett alleged in his complaint that Miller (1) denied him prompt and

adequate medical care; (2) delayed his transportation to OHH for the stress test; and

(3) delayed his post-procedure medications, all in retaliation for his recent history of

filing lawsuits against prison officials at other facilities managed by the same private

company as DCF. He cited five previous lawsuits as the basis for Miller’s retaliation.

Burnett argues, defendants do not dispute, and we agree the district court failed to

rule on this claim. In this instance, however, the retaliation claim was fully briefed in

the district court and on appeal. And unlike his prison-conditions claim, the proper

resolution of his retaliation claim “is beyond any doubt.” Singleton, 428 U.S. at 121.

We therefore exercise our discretion to resolve this claim. See United States v.

Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007) (noting exercise of discretion may be

appropriate where “no additional findings of fact or presentation of evidence [is]


                                          - 21 -
required for the issue’s disposition and both parties had the opportunity to address the

issue in their appellate briefing”).

       “It is well-settled that prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his right of access to the courts.” Gee v.

Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (internal quotation marks and

brackets omitted). But to prove a retaliation claim, a prisoner must present evidence

of his “constitutionally protected activity” and the defendant’s “responsive action

that would chill a person of ordinary firmness from continuing to engage in that

activity,” as well as evidence indicating the defendant’s “action was substantially

motivated as a response to his exercise of constitutionally protected conduct.” Id.

(internal quotation marks and brackets omitted).

       Defendants argued in the district court that Burnett’s claim was based entirely

on supposition and conjecture. See Peterson v. Shanks, 149 F.3d 1140, 1144-45

(10th Cir. 1998) (affirming summary judgment on retaliation claims “based on mere

speculation rather than evidence”). Miller submitted an affidavit denying she was

aware of Burnett’s lawsuits against a prison official at another facility. Defendants

contended further that, even if Miller had such knowledge, there was no evidence it

was the motivating factor in her decisions regarding Burnett’s treatment. See id. at

1144 (holding prisoner “presented no evidence that the defendants’ allegedly

retaliatory motives were the ‘but for’ cause of [their] actions”). In his district court

brief, Burnett argued he could rely on circumstantial evidence, such as suspicious


                                          - 22 -
timing, but he failed to cite any evidence to support that claim. He otherwise

contended Miller’s retaliation could be inferred because she had no other, valid

reason for her behavior. On appeal, Burnett simply references the allegations in his

complaint. Miller is entitled to summary judgment on Burnett’s retaliation claim,

which is based on supposition and conjecture, rather than evidence.

        D.    Damages for Physical Injury and Extreme Emotional Distress

        In his complaint, Burnett alleged he suffered extreme emotional distress due to

defendants’ acts and omissions, in violation of the Eighth Amendment and state law.

He does not challenge the district court’s decision not to exercise continuing

jurisdiction over his state-law claim of intentional infliction of emotional distress.

But as to his federal claims, Burnett argues the district court erred in holding he

failed to show he suffered a physical injury in addition to mental or emotional harms,

as required by 42 U.S.C. § 1997e(e), which provides: “No Federal civil action may

be brought by a prisoner confined in a . . . prison . . . for mental or emotional injury

suffered while in custody without a prior showing of physical injury . . . .” Burnett

contends there is evidence he suffered permanent heart damage, as well as emotional

distress, as a result of defendants’ deliberate indifference in providing him medical

care.

        We need not decide this issue because Burnett failed to identify disputed

issues of material fact with respect to his medical-mistreatment claims and his

retaliation claim. He must show damages resulting from a constitutional violation,


                                          - 23 -
not merely damages that might result from his medical treatment. Stated differently,

whether and what type of damages Burnett may recover is not at issue absent a

showing defendants violated Burnett’s constitutional rights. Cf. Searles v. Van

Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (“[Section 1997e(e)] limits the remedies

available, regardless of the rights asserted, if the only injuries are mental or

emotional.” (emphasis added)).

      E.     Application to Proceed in the District Court Without Prepayment of
             Fees and Costs

      Burnett moved to proceed in the district court without prepayment of fees or

costs. The motion was denied because he had three previous strikes under 28 U.S.C.

§ 1915(g). Burnett challenges the three-strikes ruling, arguing none of the cited

previous actions were dismissed in their entirety as frivolous, malicious, or for failure

to state a claim. See Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012) (“[The]

plain language of § 1915(g) provides that a plaintiff will incur a strike only when an

entire action is dismissed based on one of the listed grounds.”). We review this issue

de novo. See Smith v. Veterans Admin., 636 F.3d 1306, 1309 (10th Cir. 2011). In

one of the cited actions, some of Burnett’s claims were decided on the merits (as

opposed to being dismissed for reasons contained in the statute), and this court

affirmed the merits determination. See Burnett v. Jones, No. 10-CV-257, 2010 WL

5125538 (W.D. Okla. Dec. 9, 2010), aff’d, 437 F. App’x 736, 748-49 (10th Cir.

2011) (unpublished) (affirming grant of summary judgment on Counts 9 and 13). It

therefore does not count as a strike. Absent three qualifying strikes under § 1915(g),

                                          - 24 -
we need not determine whether the dispositions of the other two actions cited by the

district court qualify as strikes. Burnett should have been permitted to proceed in the

district court without prepayment of fees and costs.13

       F.     Application to Proceed on Appeal Without Prepayment of Fees and
              Costs

       The district court also denied Burnett’s application for leave to appeal without

prepayment of fees and costs based on the three strikes just discussed. Also, after

reviewing Burnett’s claims on the merits and granting defendants summary judgment,

the district court also stated, without further analysis, “[T]his action is, in all

respects, DISMISSED as frivolous and malicious. This dismissal shall count as a

STRIKE, pursuant to 28 U.S.C. § 1915(g).” R., Vol. III at 463. The imposition of yet

another strike begs the question: Can that strike counts as the third predicate strike

preventing this appeal from being taken without prepayment of fees and costs?

Recently, in Coleman v. United States, 135 S. Ct. 1759, 1763 (2015), the Supreme Court

addressed the imposition of strikes. It decided a new filing in a district court is subject to

the three strike rule even though one of the predicate strikes is on appeal. To that extent

Coleman reversed our precedent. See Jennings v. Natrona Cty. Det. Ctr. Med. Facility,

175 F.3d 775, 779 (10th Cir. 1999) (holding district court dismissal should not be

counted as a strike before the litigant has exhausted or waived his opportunity to


13
       He paid the filing fee, making the immediate payment issue moot but not the
three strikes issue.



                                            - 25 -
appeal”). But this case presents a different twist; one of the predicate strikes was

imposed in this case and is challenged in this appeal. We do not read Coleman to prevent

our consideration of the propriety of that strike at the threshold of this appeal. Although

we discuss the issue last, we considered it first and decided the strike was improperly

imposed.

       Under § 1915(g):

       In no event shall a prisoner bring a civil action or appeal a judgment in a
       civil action or proceeding under [the federal in forma pauperis statute] if
       the prisoner has, on 3 or more prior occasions, while incarcerated or
       detained in any facility, brought an action or appeal in a court of the
       United States that was dismissed on the grounds that it is frivolous,
       malicious, or fails to state a claim upon which relief may be granted,
       unless the prisoner is under imminent danger of serious physical injury.

       A complaint “is frivolous where it lacks an arguable basis either in law or in

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Examples of frivolous claims

are those “based on an indisputably meritless legal theory,” such as a claim asserting

“infringement of a legal interest which clearly does not exist,” as well as claims

asserting “factual contentions [that] are clearly baseless,” such as those “describing

fantastic or delusional scenarios.” Id. at 327-28. But “[w]hen a complaint raises an

arguable question of law which the district court ultimately finds is correctly resolved

against the plaintiff, . . . dismissal on the basis of frivolousness is not [appropriate].”

Id. at 328. Thus, “not all unsuccessful claims are frivolous.” Id. at 329. “[W]here

the frivolousness determination turns on an issue of law, we review the determination

de novo.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006).


                                           - 26 -
      Burnett first argues the district court was required to screen his complaint for

frivolousness immediately after it was filed, rather than making that determination

more than two years later. But 28 U.S.C. § 1915(e)(2) directs a district court to

dismiss an action at any time it determines it is frivolous or malicious. See Buchheit

v. Green, 705 F.3d 1157, 1160 (10th Cir. 2012).

      He also contends his complaint was neither frivolous nor malicious. We agree.

Among other claims, Burnett alleged a violation of federal and state law based on a

30-day delay in obtaining treatment for his severe chest pain, a medical condition

which ultimately required the placement of three stents. His failure to come forward

with sufficient evidence of deliberate indifference does not mean his federal claim

was frivolous. The judge erred in holding Burnett’s complaint as a whole was

subject to dismissal as frivolous and malicious. See Thomas, 672 F.3d at 1183. We

therefore reverse the imposition of a strike under § 1915(g).

      Burnett is permitted to proceed on appeal without prepayment of fees and

costs. But only prepayment of fees is excused, not the fees themselves. In this case

the fees amount to $505. Payment must be made to the clerk of the district court

IV.   Conclusion

      We remand to the district court to decide in the first instance Burnett’s claim

of unconstitutional conditions in the medical cell, and we reverse the district court’s

holdings that he had three previous strikes and that the dismissal of this action counts

as a strike under 28 U.S.C. § 1915(g). We otherwise affirm the district court’s


                                         - 27 -
judgment. We grant Burnett’s application to proceed on appeal without prepayment

of fees and costs, but remind him of his continuing obligation to make partial

payments until the appellate filing fee has been paid in full.


                                                  Entered for the Court


                                                  Terrence L. O’Brien
                                                  Circuit Judge




                                         - 28 -
