                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         JAN 29 1998
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 LEONARD NASH,

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

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


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


       Plaintiff-appellant Leonard Nash, a state prisoner proceeding pro se and in

forma pauperis pursuant to 28 U.S.C. § 1915(b) (providing for payment in

installments of full fee), appeals from summary judgment on his 42 U.S.C. § 1983

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
claim for violation of his Eighth Amendment right to adequate medical care. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                    Background

      In the latter part of May of 1993, Mr. Nash began complaining of pain and

decreased range of motion of his left shoulder. On May 24, 1993, Dr. Roye of

Oklahoma Memorial Hospital (OMH) noted impingement of Mr. Nash’s left

shoulder and scheduled him for an arthrogram on June 16, 1993, which would

confirm or rule out the possibility of a rotator cuff tear. The following day,

prison officials notified Mr. Nash he was eligible for release into the community

through Oklahoma’s voluntary Specialized Supervision Program (SSP). Mr. Nash

signed the form acknowledging his eligibility and recommendation for release, as

well as SSP Rules and Conditions which stated, “I understand that I am

responsible for my own medical care and all medical expenses incurred by me

upon my release.”

      On June 23, 1993, an arthrogram revealed no signs of rotator cuff tear. Mr.

Nash alleges that he was later scheduled for left shoulder acromioplasty on

August 5, 1993, but Defendants deny knowledge of the scheduling, and

corrections records do not reflect the scheduled surgery. Mr. Nash was released

into SSP on August 10, 1993, without undergoing this surgery, and he was unable

to procure the surgery while on SSP release. In May 1994, Mr. Nash violated the


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terms and conditions of SSP and was re-incarcerated. DOC resumed provision of

medical care and provided the acromioplasty surgery on January 24, 1995.

                                     Discussion

      We review summary judgment rulings de novo, applying the same standard

as the district court. See Bell v. United States, 127 F.3d 1226, 1228 (10th Cir.

1997). Summary judgment may be granted if the pleadings and any supporting

documentary materials “show that there is no genuine issue as to any material fact

and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). While

applying this standard, we view the evidence in the light most favorable to, and

draw all reasonable inferences from the evidence in favor of, the non-movant.

See Bell, 127 F.3d at 1228. The moving party is “entitled to judgment as a matter

of law” if on the undisputed facts there is insufficient evidence on an issue for

which the nonmoving party will bear the burden of proof at trial. Fed. R. Civ. P.

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

      Defendants assert summary judgment was proper on the basis of qualified

immunity. Government officials are immune from suit respecting discretionary

functions they perform, unless their actions violate “clearly established statutory

or constitutional rights of which a reasonable person would have known.” Harlow

v. Fiztgerald, 457 U.S. 800, 818 (1982). Plaintiff bears the initial burden of


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showing that Defendants’ actions violated clearly established law at the time the

violation occurred. See Applewhite v. United States Air Force, 995 F.2d 997,

1000 (10th Cir. 1993), cert. denied, 510 U.S. 1190 (1994). Ordinarily, for the law

to be clearly established in this sense, “there must be a Supreme Court or Tenth

Circuit decision on point, or the clearly established weight of authority from other

courts must have found the law to be as the plaintiff maintains.” Medina v. City

and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992).

      The Eighth Amendment’s prohibition of cruel and unusual punishment

imposes on the government an affirmative duty to provide adequate medical care

to those it has incarcerated because they are unable to procure care for

themselves. See U.S. Const. amd. VIII; Estelle v. Gamble, 429 U.S. 97, 103

(1976). A claim of violation of this duty must satisfy a two-prong test having

both subjective and objective components. A prisoner’s Eighth Amendment right

to medical care is violated if (1) prison officials manifest a “deliberate

indifference” to his medical needs and (2) those needs are “serious.” Id. at 104;

Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). A “serious” medical need is one

that has been diagnosed by a physician as mandating treatment or is so obvious

that even a lay person would easily recognize the necessity for a doctor’s

attention. See Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied,

450 U.S. 1041 (1981).


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      Prior to his release, rather than being denied access to or provision of

medical care, Mr. Nash indisputably received extensive medical attention. Mr.

Nash advances no evidence that Defendants knew of his alleged August 5 surgery

appointment. Even if they did, it is not clearly established that they were

deliberately indifferent in delaying his surgery for five days until Mr. Nash was

released and at liberty to seek care in the community. See Olson v. Stotts, 9 F.3d

1475, 1477 (10th Cir. 1993) (holding eleven-day delay in providing elective

surgery not deliberately indifferent); Boring v. Kozakiewicz, 833 F.2d 468, 473

(3d Cir. 1987) (holding brevity of incarceration is a permissible factor in decision

to provide elective surgery), cert. denied, 485 U.S. 991 (1988); Delker v. Maass,

843 F. Supp. 1390, 1400 & n.6 (D. Or. 1994). Moreover, Mr. Nash has not

marshaled evidence to show that any delay caused him “substantial harm” as

required to show deliberate indifference in cases involving delay. See Stotts, 9

F.3d at 1477.

      Further, Mr. Nash has failed to establish that he had a sufficiently urgent

medical need, as contemplated by the definition of “serious” in Ramos, so that it

would have violated the Eighth Amendment to defer the surgery. See Ramos, 639

F.2d at 575; Caldwell v. Moore, 968 F.2d 595, 602 (6th Cir. 1992). Rather, the

law allows the type and amount of care to be determined on a case-by-case basis.

See Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989) (weighing


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seriousness, consequences of denial, and length of delay); Delker, 843 F. Supp at

1400 & n.6. In Mr. Nash’s case, the more urgent concern about a possible rotator

cuff tear had been ruled out, he had been determined eligible for, recommended

for, and indicated his voluntary choice to be released into the community via SSP,

and actually was released five days later. In addition, assuming the August 5

surgery was scheduled, Dr. Roye did not schedule it immediately, but over a

month hence.

      As for the period during which Mr. Nash was released, there has been no

showing that DOC officials or medical personnel had a duty to provide medical

care to those released under the SSP program. Mr. Nash cites no authority

suggesting such a duty and our research uncovers none. Rather, the rationale of

Estelle that the duty arises based on inmates’ isolation from the community

militates against any such duty when persons are released into the community.

See Estelle, 429 U.S. at 103.

      Finally, Mr. Nash has not shown Defendants were deliberately indifferent

after his re-incarceration to a serious medical need. After his re-incarceration,

Mr. Nash received a steady stream of medical appointments for treatment,

examination, evaluation, preparation for surgery, the acromioplasty surgery itself,

and post-operative care. An Eighth Amendment claim is not cognizable and

sufficiently clear to overcome qualified immunity where the plaintiff receives


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progressive, conservative care short of the most invasive procedure, surgery with

general anesthetic, and ultimately receives the sought-after surgery. See Estelle,

429 U.S. at 107 (stating matters of medical judgment do not give rise to a § 1983

claim); Ramos, 639 F.2d at 575 (concluding mere disagreement with medical staff

over diagnosis or treatment is insufficient to state an Eighth Amendment claim).

      AFFIRMED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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