                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2192
                        ___________________________

                        Khalifah Abd-al Mubaymin Faruq

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

Leon Vickers, Medical Administrator of CMS at Jefferson City Correctional Center

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                            Submitted: March 18, 2013
                              Filed: August 5, 2013
                                  [Unpublished]
                                  ____________

Before MURPHY, SMITH, and COLLOTON, Circuit Judges.
                           ____________

PER CURIAM.

      Khalifah Abd-al Mubaymin Faruq appeals the district court’s adverse grant of
summary judgment on his 42 U.S.C. § 1983 action. Faruq sought damages and
injunctive relief against Leon Vickers, a Correctional Medical Services (CMS) nurse
administrator. Faruq alleged that Vickers had acted with deliberate indifference to
his medical needs by confiscating orthotic devices which had been prescribed by a
physician for his unstable knees; as a result he is severely inhibited in his ability to
function in prison and has suffered constant pain from bone, ligament, and tendon
misalignment. Upon de novo review and viewing the evidence and all reasonable
inferences in the light most favorable to Faruq, see Mason v. Corr. Med. Servs., Inc.,
559 F.3d 880, 884–85 (8th Cir. 2009), we conclude that Faruq has raised genuine
issues of material fact as to whether Vickers exhibited deliberate indifference to his
medical needs.

       To prevail on his Eighth Amendment claim, Faruq must show that (1) he
suffered from an objectively serious medical need and (2) Vickers knew of, but
deliberately disregarded, that need. See Schaub v. VonWald, 638 F.3d 905, 914 (8th
Cir. 2011). With respect to the first element, Vickers does not dispute that Faruq’s
medical need was serious. Faruq had been medically prescribed bilateral orthotic
devices or braces after undergoing surgery on his left knee and injuring his right knee.
He was told he would need the braces permanently and had previously worn them for
two years in the prison's general population and in administrative segregation.

       As to the second element of Faruq's claim, he need not prove that Vickers
"purposefully caus[ed] or knowingly br[ought] about a substantial risk of serious
harm." Schaub, 638 F.3d at 915. He need only prove that Vickers acted with a state
of mind "equivalent to criminal-law recklessness," id. (citing Lenz v. Wade, 490 F.3d
991, 995 (8th Cir. 2007)), which may be inferred from circumstantial evidence.
Sanchez v. Taggart, 144 F.3d 1154, 1156 (8th Cir. 1998) (citing Farmer v. Brennan,
511 U.S. 825, 842–43 & n.8 (1994)). In Sanchez we concluded that "fail[ure] to
inquire" appropriately into a prisoner's medical condition may provide evidence of
deliberate indifference sufficient to survive summary judgment. Sanchez, 144 F.3d
at 1156. Similarly here, we conclude that the record viewed favorably to Faruq is
sufficient to raise a genuine issue of fact as to whether Vickers deliberately
disregarded electronic medical records confirming that Faruq had medical approval



                                          -2-
to use the braces. See Pool v. Sebastian Cnty., Ark., 418 F.3d 934, 942 (8th Cir.
2005).

       Faruq's braces were initially seized by custody officials in October or
November 2008. Faruq complained of his resulting injuries to prison medical staff
who informed him in early December that the seizure of his braces was "a custody
issue." Later, a prison medical official requested the return of the braces "unless there
are restrictions due to beng [sic] in [administrative segregation]," but the braces were
not returned. Subsequent entries in Faruq's electronic medical records appear to show
confusion over the location of Faruq's braces. One entry states, "What happened to
the knee braces? Can they be found?" The next entry follows, "Allegedly custody
removed them and I assume that is where they are." The braces were eventually
returned to Faruq at the direction of a nurse, but custody officials reconfiscated them
the same day after conferring with Vickers, who stated that Faruq had not been
medically approved for them.

       Vickers claims that he determined Faruq was not approved for the braces after
reviewing three electronic medical record entries from December 23 and 31. He
maintains that he interpreted the December 23 entry to "note[] [Faruq's] non-
approval" for the braces, but the key language on which he claims to have relied was
entered January 7, the very day he determined that Faruq lacked approval for the
braces. It is unclear from the record whether this language was entered before or after
Vickers made his determination. Viewing the record in the light most favorable to
Faruq, see Mason, 559 F.3d at 884, a reasonable inference can be drawn that the
language was added afterward, perhaps even based on Vickers' determination. Prior
to Vickers' determination, Faruq had never been denied approval, and after each of
his visits medical staff had requested that the braces be returned to him.1


      1
       The dissent disputes this point, but it misreads the record. The key language
bears a date stamp reading "20090107," meaning January 7, 2009. This is the same

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       Similarly, while Vickers attested that he interpreted a doctor’s December 23
entry as not having approved Faruq’s braces, that entry stated that the braces should
be returned to Faruq unless they were restricted due to his placement in administrative
segregation, i.e., for security reasons. The physician's entry thus appears on its face
to indicate that Faruq had medical approval for the braces which was contingent only
on concerns of security. There is also no indication that Vickers attempted to
determine whether Faruq had been approved for the braces after he received letters
from Faruq on January 13 and February 18 providing the dates when the physician
had recommended and approved the braces and identifying the doctors involved. The
electronic medical records contained entries confirming the content of Faruq's letters.

      In such circumstances, the district court should not have granted summary
judgment where genuine issues of material fact remained. See Sanchez, 144 F.3d at
1157. Accordingly, we deny Faruq’s motion to expand the record, reverse the
judgment of the district court, and remand for further proceedings consistent with this
opinion.

COLLOTON, Circuit Judge, dissenting.

      The district court went the extra mile to allow Khalifah Faruq an opportunity
to demonstrate a submissible case of deliberate indifference to his serious medical
needs by nurse administrator Leon Vickers of Correctional Medical Services. The
court denied Vickers’s first motion for summary judgment in December 2010,
because the court had questions about Vickers’s mental state. When Faruq failed to
present evidence supporting a reasonable inference that Vickers acted with deliberate




day Vickers reviewed Faruq's medical records. If as Vickers stipulates "there were
no entries for that date" when he conducted his review, he could not have relied on
that language in making his determination.

                                         -4-
indifference, however, the district court properly granted summary judgment in April
2012.

       Faruq’s claim is that Vickers violated Faruq’s rights under the Eighth
Amendment, as incorporated by the Fourteenth, because Vickers was deliberately
indifferent to a serious medical need. See Erickson v. Pardus, 551 U.S. 89, 90 (2007)
(per curiam). To establish deliberate indifference, a plaintiff must show that the
prison 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.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added). An official’s
“failure to alleviate a significant risk that he should have perceived but did not” is
insufficient to show a violation of the Eighth Amendment. Id. at 838. It also is not
enough to show “that a reasonable person would have known, or that the defendant
should have known” about a serious medical need and then disregarded it. Id. at 843
n.8.

      In this case, there is no dispute about Faruq’s medical need. The issue is
whether Vickers acted with a culpable mental state—i.e., deliberate indifference,
which means recklessness of the type typically recognized in the criminal law. Id. at
837.

       On January 7, 2009, Faruq was an inmate in administrative segregation at the
Jefferson City Correctional Center. Sergeant Galbreath of the Missouri Department
of Corrections asked Vickers by telephone whether Faruq had an “active pass” to use
knee braces. Vickers said he would check Faruq’s electronic medical records and
return the call. Vickers reviewed the three most recent entries in Faruq’s record—one
dated December 23, 2008, and two dated December 31, 2008. After concluding that
none of these entries approved Faruq’s use of knee braces, Vickers conveyed that
information to Galbreath within an hour of their first conversation. Galbreath then

                                         -5-
removed Faruq’s knee braces from his cell and returned them to the medical
department of the facility.

       The majority says that a jury could find that Vickers was deliberately
indifferent, because “the key language on which he claims to have relied was entered
January 7, the very day he determined that Faruq lacked approval for the braces.”
Ante, at 3. According to the majority, “[i]t is unclear from the record whether this
language was entered before or after Vickers made his determination.” Id.

        This rationale for reversal is unfair to Vickers and the district court. As the
district court explained, it is undisputed that when Vickers consulted the electronic
medical records on January 7, “there were no entries for that date” in the records. R.
Doc. 222, ¶ 18; R. Doc. 225, ¶ 15 (“As to items 18 thru 22 Plaintiff admits.”). Faruq
admitted that Vickers “relied upon three entries: one entry dated December 23, 2008;
and two entries dated December 31, 2008, one entered at 10:45 a.m. (‘104514’) and
one indicated for 10:54 a.m.” R. Doc. 222 ¶ 21; R. Doc. 225, ¶ 15 (“As to items 18
thru 22 Plaintiff admits.”). As for the “key language,” Vickers explained that the
entry by Dr. Harry Haas for December 23, 2008, stated in part: “Wearing knee
braces, put in Ad. Seg. and they were taken. . . . Request giving knee braces unless
there are restrictions due to beng [sic] in Ad. Seg.,” and included the notation
“Approved N.” R. Doc. 222, ¶ 22. It is clear from the record that this language was
added before Vickers made his determination: Faruq admitted that the December 23
entry that Vickers reviewed included the language cited by Vickers. R. Doc. 222,
¶ 22; R. Doc. 225, ¶ 15 (“As to items 18 thru 22 Plaintiff admits.”). The majority’s
assertion that the language could have been added later is contrary to the undisputed
facts.2

      2
       The majority curiously asserts that the “key language bears a date stamp
reading ‘20090107,’ meaning January 7, 2009.” Ante, at 3 n.1. None of the language
quoted above “bears a date stamp reading ‘20090107.’” See R. Doc. 222-6; R. Doc.
225-1, at 18. (The only language bearing that date stamp is not at issue: “Unable to

                                         -6-
       The majority next contends that Vickers exhibited deliberate indifference by
misinterpreting Dr. Haas’s entry in the medical records. Vickers averred that he
interpreted this entry to mean that “since Dr. Haas was requesting approval for
[Faruq] to be issued his knee braces, [Faruq] did not have an active pass for his
braces; and that the notation ‘Approved N’ indicated that [Faruq] was not approved
for knee braces by Dr. Haas.” R. Doc. 222-2, ¶ 26. Nurse Beth Clad also considered
the December 23 entry; she averred, “Based upon my experience as a nurse employed
by CMS, I interpret this entry as meaning that the notation ‘Approved N’ indicates
that [Faruq] was not approved by Dr. Haas for knee braces.” R. Doc. 222-3, ¶ 14.

       Despite this consistent sworn evidence from two medical professionals, the
majority concludes that a reasonable jury could find that Vickers drew the inference
that Dr. Haas had approved Faruq’s use of knee braces. Not so. The electronic
medical entry is hardly a model of clarity. It is doubtful that a reasonable jury could
find even that the interpretation given by Vickers (and Clad) was negligent. But to
say that the December 23 entry demonstrates that Vickers acted with deliberate
indifference dilutes that demanding standard beyond recognition.

       Finally, the majority cites Vickers’s reaction to a letter that he received from
Faruq on January 13, 2009. In that letter, Faruq wrote that a CMS regional medical
director had ordered the knee braces. R. Doc. 225-1, at 1. Vickers denied Faruq’s
request for knee braces on the ground that they were not “found medically necessary
during & following [Faruq’s] last evaluation.” Id. In its first summary judgment
order, the district court observed that it was unclear why Vickers, in denying the
request, relied only on the medical records from December 23 and 31, 2008, and did


process referral as requested info not provided. KEC 010709.” See R. Doc. 222-6;
R. Doc. 225-1, at 20.). And the majority simply ignores Faruq’s admission that the
language on which Vickers said he relied, including the majority’s “key language,”
was in the medical records when Vickers reviewed them on January 7. R. Doc. 222
¶¶ 21-22; R. Doc. 225 ¶ 15.

                                         -7-
not consider more recent medical records dated January 7, 2009. In its later order,
however, the court observed that Faruq failed to present evidence that Vickers knew
of the January 7 entries in the medical records or that the entries established that
Faruq had an active pass for knee braces. At most, the court concluded, Faruq’s
evidence supported an inference that Vickers was negligent when he simply relied on
his previous review of medical records on January 7 and failed to look at the medical
records again after receiving the letter on January 13.

       The majority says there is “no indication that Vickers attempted to determine
whether Faruq had been approved for the braces” after Vickers received Faruq’s letter
on January 13. Ante, at 4. But unlike the prison official in Sanchez v. Taggart, 144
F.3d 1154 (8th Cir. 1998), who never inquired further after an inmate provided
information about a serious medical condition, Vickers already made an inquiry and
determination about Faruq’s condition by reviewing the medical records on
January 7. Faruq’s letter received on January 13 did not assert that new information
had been added to the records after Vickers’s previous review. The district court was
correct, therefore, that the evidence was insufficient to show that Vickers subjectively
knew there was reason to inquire further on January 13. If Vickers had reviewed the
records on January 13, moreover, he would not have found any new record containing
direction from the warden or a doctor’s approval. See R. Doc. 222-4. There was thus
no deliberate indifference.3




      3
       The majority also cites a grievance letter from Faruq to Vickers, received on
February 18, 2009, which asserts that the use of knee braces had been approved at an
unspecified time by a Dr. Murphy and District Director Dr. Swan. Faruq was
transferred from the facility on February 26, 2009, and the grievance was denied as
moot. Neither the district court’s order nor Faruq’s brief on appeal even mentions
this February letter, which—like the January letter—does not notify Vickers that new
information was added to the medical records after he reviewed them on January 7.

                                          -8-
      Faruq’s remaining points on appeal are without merit. The district court did
not abuse its discretion in denying motions for appointment of counsel. The case was
not complex, and Faruq demonstrated an ability to investigate and present his case.
The court also did not abuse its discretion by refusing to allow additional discovery.
I would affirm the judgment of the district court.
                        ______________________________




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