                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    June 27, 2012
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 TERRY VIGIL,

              Plaintiff - Appellant,
                                                         No. 11-1359
 v.                                         (D.C. No. 1:09-CV-02886-PAB-MEH)
                                                        (D. Colorado)
 POLLY WALTERS, RN; KARLIN
 WERNER, RN; JERE SUTTON,
 Physician; LOUIS CABLING,
 Physician,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.



      After examining the briefs and the appellate record, this court 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        This order and judgment is not binding precedent except under the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.
      During the relevant time, Plaintiff-appellant Terry Vigil was a Colorado

state inmate housed at the Crowley County Correctional Facility. Proceeding pro

se, he brought a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging

Defendants were deliberately indifferent to his medical needs in violation of the

Eighth Amendment to the United States Constitution. In the complaint, Vigil

asserted he was diagnosed with a ventral umbilical hernia in February 2007.

After he was told by a physician’s assistant that he was not eligible for surgery to

repair the hernia because of his weight, he lost seventy pounds. Vigil alleged he

continuously complained to medical providers from August 2007 through January

2009 that his hernia was causing him severe pain and discomfort. He was told

they would not perform surgery unless the hernia twisted or caused other

complications.

      On the evening of February 2, 2009, Vigil complained of extreme pain and

was taken to the medical department. Defendant Karlin contacted Defendant

Cabiling who prescribed a pain medication until Vigil could be seen by a

physician in the morning. Vigil was seen by Defendant Walters at 10:00 a.m. on

the morning of February 3. He was also examined by Defendant Sutton who

recommended a surgical consult and ordered the administration of more pain

medication. Vigil had surgery later that day and was discharged on February 18,

2009. An Operative Procedure Report prepared by Gary E. Lane, M.D. indicated

(1) Vigil underwent surgery to repair an “incarcerated hernia,” (2) the surgery

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was successful, and (3) Vigil suffered no complications. Defendant Sutton

examined Vigil on February 21st and noted the incision was healing well with no

sign of infection.

      After discovery was complete, Defendants moved for summary judgment

on several grounds and the matter was addressed by a United States Magistrate

Judge. The magistrate recommended granting Defendants’ motion based on

Defendants’ argument Vigil’s allegations, even if proved, were insufficient to

establish that Defendants were deliberately indifferent to his serious medical

needs. The district court reviewed the magistrate’s recommendation de novo and

concluded summary judgment was appropriate and entered judgment in favor of

Defendants. Vigil then brought this appeal.

      This court reviews the grant of summary judgment de novo, using the same

Rule 56 standard applied by the district court. Timmons v. White, 314 F.3d 1229,

1232 (10th Cir. 2003); Fed. R. Civ. P. 56(a), (c). As the nonmoving party, Vigil

must show there are genuine issues of material fact to be determined by a jury.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Because he is proceeding pro

se, we will liberally construe his pleadings and hold them to a less stringent

standard than pleadings drafted by attorneys. Garrett v. Selby Connor Maddux &

Janer, 425 F.3d 836, 840 (10th Cir. 2005). Notwithstanding this liberal

construction, Vigil cannot prevail at trial on an Eighth Amendment claim unless

he proves Defendants were deliberately indifferent to his serious medical needs.

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The deliberate indifference standard “involves both an objective and a subjective

component.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quotation

omitted). Under the objective standard, Vigil must show the harm he suffered

from any denial of medical care is sufficiently serious to implicate the Cruel and

Unusual Punishment Clause. Martinez. v. Beggs, 563 F.3d 1082, 1088 (10th Cir.

2009). “[A] delay in medical care only constitutes an Eighth Amendment

violation where the plaintiff can show the delay resulted in substantial harm.”

Mata, 427 F.3d at 751 (quotation omitted). To prove the subjective component,

Vigil must show Defendants knew of an excessive risk of serious harm to his

health and safety but consciously disregarded that risk. Self v. Crum, 439 F.3d

1227, 1231 (10th Cir. 2006) (“The subjective component is akin to recklessness in

the criminal law, where, to act recklessly, a person must consciously disregard a

substantial risk of serious harm.” (quotations omitted)).

      Vigil alleges his surgery should have been scheduled sooner; he was in pain

for sixteen hours between February 2, 2009 and February 3, 2009; he was not

seen by Defendant Sutton until 10:00 a.m. on February 3, an alleged delay of

three hours; and as a result of the alleged sixteen-hour delay he lost “three inches

or more” of his small intestine. The record, however, shows Vigil received

medical treatment for his condition and he was prescribed pain medication until

he could be examined by Defendant Sutton on the morning of February 3. To the

extent Vigil’s complaint can be read as merely challenging the type and quality of

                                         -4-
the medical treatment he received, such claims do not assert violations of federal

constitutional rights. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[A]

complaint that a physician has been negligent in diagnosing or treating a medical

condition does not state a valid claim of medical mistreatment under the Eighth

Amendment.”). To the extent the complaint raises claims of constitutional

magnitude, however, we agree with the district court that Vigil presented no

evidence from which deliberate indifference to his medical needs could be

inferred. The record contains no evidence he suffered any complications or

serious harm from Defendants’ actions, including the alleged delay in being

examined by Defendant Sutton or the alleged delay in scheduling his surgery.

Neither has he presented any evidence from which a reasonable jury could

conclude Defendants acted with the culpable state of mind required by the Eighth

Amendment.

      Upon de novo review of Vigil’s complaint and appellate brief, the

magistrate judge’s recommendation, the district court’s orders, and the entire

record on appeal, this court affirms the district court’s grant of summary

judgment to Defendants for substantially those reasons stated by the district court.

Vigil’s application to proceed in forma pauperis is granted, but he is reminded

he remains obligated to continue making partial payments until his appellate




                                        -5-
filing fee is paid in full. See 28 U.S.C. § 1915(b).



                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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