                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 30, 2015
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 AUDREY L. TENNYSON,

              Plaintiff - Appellant,

 v.                                                      No. 15-1166
                                            (D.C. No. 1:15-CV-00707-MSK-CBS)
 RICK RAEMISCH, CDOC Director;                            (D. Colo.)
 MICHAEL MILLER, CCCF Warden;
 MELINDA McMILLIAN, CCCF
 Bookkeeper; LOUIS CABLING,
 CCCF Head Physician; JUDY
 BREZEDINE, CCCF Health Servs.
 Admin.; LAURIE KNAPP, CCCF
 Clinical Supervisor; DOUG
 ROBERTS, PPMU Med. Monitor; and
 ANTHONY DECESARO, CDOC
 Grievance Review Officer,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.




      *
             After examining the briefs and appellate record, this panel has
decided 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      This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      Plaintiff-Appellant Audrey Tennyson, proceeding pro se, appeals from the

district court’s order denying Mr. Tennyson’s motion for a preliminary

injunction. 1 Exercising our jurisdiction under 28 U.S.C. § 1292(a)(1), and

construing Mr. Tennyson’s filings liberally, see Garza v. Davis, 596 F.3d 1198,

1201 n.2 (10th Cir. 2010), we affirm the district court’s order denying Mr.

Tennyson’s request for a preliminary injunction.




      1
              Mr. Tennyson also purports—in his opening brief—to appeal the
district court’s order dismissing Defendant Anthony DeCesaro. However, Mr.
Tennyson failed to make any mention of this order in his notice of appeal, as
required under Federal Rule of Appellate Procedure 3(c)(1)(B) (requiring that a
notice of appeal “designate the judgment, order, or part thereof being appealed”).
Moreover, his opening brief cannot serve as the functional equivalent of a notice
of appeal because it was not filed within thirty days of the district court’s order
dismissing Defendant DeCesaro. See Smith v. Barry, 502 U.S. 244, 249 (1992)
(“[The Federal Rules] do not preclude an appellate court from treating a filing
styled as a brief as a notice of appeal . . . if the filing is timely under Rule 4 and
conveys the information required by Rule 3(c).” (emphasis added)); Fed. R. App.
P. 4(a)(1)(A) (“In a civil case, . . . the notice of appeal required by Rule 3 must be
filed with the district clerk within 30 days after entry of the judgment or order
appealed from.”). In any event, even if we could put aside Mr. Tennyson’s failure
to file a notice of appeal as to this order, we lack jurisdiction to consider a ruling
dismissing fewer than all of the defendants at this interlocutory stage and most of
the defendants remain in the litigation. See 28 U.S.C. § 1291 (granting the courts
of appeals “jurisdiction of appeals from all final decisions of the district courts”);
Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir. 2005) (“Final decisions are those
that ‘“end[] the litigation on the merits and leave[] nothing for the court to do but
execute the judgment.”’ A final judgment is one that terminates ‘“all matters as
to all parties and causes of action.”’” (alterations in original) (citations omitted));
see also Lopez v. Roark, 560 F. App’x 809, 811 (10th Cir. 2014) (noting that
district court’s dismissal of all claims against some but not all of the defendants
was “not [a] final decision[]” and could not be appealed at the interlocutory
stage).

                                          2
      Mr. Tennyson, an inmate within the Colorado Department of Corrections

who is currently incarcerated at Crowley County Correctional Facility in Olney

Springs, Colorado, filed suit under 42 U.S.C. § 1983 alleging, inter alia, that the

defendants have unconstitutionally refused to provide him with sufficient personal

hygiene items and Zantac, an over-the-counter medication used to treat

Gastroesophageal Reflux Disease (“GERD”). Subsequently, he filed a motion for

a preliminary injunction, asking the district court to order defendants to

immediately begin providing him with those things. The court denied the motion,

and Mr. Tennyson timely filed this appeal. 2

      2
             After the district court denied Mr. Tennyson’s motion for a
preliminary injunction, pursuant to Fed. R. Civ. P. 59(e), he filed a motion to alter
or amend the order denying his initial motion. The district court summarily
denied this second motion for the same reasons set forth in its initial order. Mr.
Tennyson’s notice of appeal only refers to the district court’s order denying his
motion to alter or amend. However, construing Mr. Tennyson’s filings liberally,
see Garza, 596 F.3d at 1201 n.2, we believe it is very likely that his true appellate
target was the court’s initial order denying his preliminary-injunction motion; his
appeal would have been timely as to this order (as well as to the subsequent order
denying his motion to alter or amend). In this regard, his appellate briefing
challenges the court’s conclusions in denying his preliminary-injunction motion
and, more specifically, does not invoke the discrete standards for relief under
Rule 59(e) or attempt to make arguments calculated to satisfy them. See
generally Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n.5
(10th Cir. 2000) (“[A] motion for reconsideration ‘should be granted only to
correct manifest errors of law or to present newly discovered evidence.’” (quoting
Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)). Accordingly, we are
inclined to view Mr. Tennyson’s specification in his notice of appeal of the order
denying his motion to alter or amend as a harmless mistake and focus instead on
the order denying his preliminary-injunction motion. See Sanabria v. United
States, 437 U.S. 54, 67 n.21 (1978) (“A mistake in designating the judgment
appealed from is not always fatal, so long as the intent to appeal from a specific
                                                                        (continued...)

                                          3
      We review the district court’s denial of the motion for a preliminary

injunction for an abuse of discretion. See Little v. Jones, 607 F.3d 1245, 1250

(10th Cir. 2010). “A movant is entitled to a preliminary injunction if he can

establish the following: (1) a substantial likelihood of success on the merits of the

case; (2) irreparable injury to the movant if the preliminary injunction is denied;

(3) the threatened injury to the movant outweighs the injury to the other party

under the preliminary injunction; and (4) the injunction is not adverse to the

public interest.” Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001).

“Because a preliminary injunction is an extraordinary remedy, the right to relief

must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d

1250, 1256 (10th Cir. 2003). Furthermore, where, as here, the movant seeks to

disturb the status quo, he has an “even heavier burden of showing that the four

factors listed above weigh heavily and compellingly in movant’s favor before

such an injunction may be issued.” Kikumura, 242 F.3d at 955 (quoting SCFC

      2
       (...continued)
ruling can fairly be inferred by probing the notice and the other party was not
misled or prejudiced.”); Nolan v. U.S. Dep’t of Justice, 973 F.2d 843, 846 (10th
Cir. 1992) (“The requirements of Rule 3 [of the Federal Rules of Appellate
Procedure] should be liberally construed.”). In any event, even if we viewed Mr.
Tennyson as challenging the court’s order denying his motion to alter or amend,
given the more rigorous standards for relief that govern such motions (i.e.,
requiring a showing of manifest errors of law or newly discovered evidence), Mr.
Tennyson’s failure to frame his arguments to address them, and our ultimate
conclusion that the district court did not abuse its discretion in denying his
preliminary-injunction motion, it is patent that the outcome that we reach here
would be the same.


                                          4
ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)). Because the

first of the factors listed above—likelihood of success on the merits—resolves the

instant appeal, we confine our analysis to that issue. Cf. Republican Party of

N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013) (resolving disposition of the

injunction at the first step of our traditional test).

          Mr. Tennyson argues that the defendants’ refusal to provide him with

personal hygiene products and Zantac free of charge constitutes a violation of the

Eighth Amendment. Under well-established law, “[a] prison official’s ‘deliberate

indifference’ to a substantial risk of serious harm to an inmate violates the Eighth

Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). “Deliberate

indifference has both an objective and subjective component. The medical need

must be sufficiently serious to satisfy the objective component.” Hunt v. Uphoff,

199 F.3d 1220, 1224 (10th Cir. 1999) (citation omitted). “In terms of the

subjective component, . . . a plaintiff must establish that defendant(s) knew he

faced a substantial risk of harm and disregarded that risk, ‘by failing to take

reasonable measures to abate it.’” Id. (quoting Farmer, 511 U.S. at 847). Mr.

Tennyson contends that the defendants have been deliberately indifferent to his

medical needs by refusing to provide (1) personal hygiene products, and (2) his

once-prescribed medication for GERD (i.e., Zantac). However, he fails to

demonstrate a likelihood of success under the Eighth Amendment with regard to

either.


                                             5
      Beginning with the alleged lack of access to personal hygiene products, this

court has previously made clear that “[a] deprivation of hygiene items without

any corresponding injury would not state an Eighth Amendment violation.”

Whitington v. Ortiz, 472 F.3d 804, 808 (10th Cir. 2007); see also Scott v. Case

Manager Owens (SCF), 80 F. App’x 640, 643 (10th Cir. 2003) (“Scott has alleged

nothing that suggests he has been subjected to inhumane conditions of

confinement. . . . Although a denial of basic hygiene items might meet this

standard under extreme conditions, Scott has not come close to alleging a

substantial risk of serious harm in this case.” (citations omitted)). Here, neither

Mr. Tennyson’s motion nor his attached declaration makes any mention of an

injury he has suffered as a result of the alleged deprivation of hygiene products.

He has thus failed to demonstrate any likelihood of success on the merits with

regard to this contention.

      Turning to the alleged deprivation of Zantac, Mr. Tennyson has failed to

make any showing that might satisfy the subjective component of the deliberate

indifference test. As noted above, the subjective component requires that the

plaintiff establish that the defendants knew he faced “a substantial risk of harm.”

Hunt, 199 F.3d at 1224. Here, Mr. Tennyson’s motion makes no

argument—beyond a bare conclusory assertion reciting the legal test—that any

defendant knew of and disregarded a substantial risk of harm resulting from his

inability to obtain Zantac. Neither does his attached declaration aver that any


                                          6
defendant knew of such a risk. Without any showing—based on pleaded

facts—that might satisfy this component of the deliberate indifference test, we

cannot find that Mr. Tennyson has demonstrated a substantial likelihood of

success on the merits.

      We note that Mr. Tennyson does aver that Dr. Cabling had previously

prescribed him Zantac and that he told the doctor that he would be “in pain all the

time” without the medication. R., Vol. I, at 58. However, these facts alone are

insufficient to show that Dr. Cabling was aware that Mr. Tennyson faced a

substantial risk of harm without Zantac. GERD—also known as acid reflux—is a

common problem and in many instances is not a serious condition warranting

Eighth Amendment scrutiny. See, e.g., Watson-El v. Wilson, No. 08 C 7036, 2010

WL 3732127, at *13 (N.D. Ill. Sept. 15, 2010) (“The court finds as a matter of

law that the plaintiff’s acid reflex did not rise to the level of a serious medical

need for purposes of Eighth Amendment analysis.”); Fox v. Rodgers, No.

08-CV-14727, 2010 WL 2605940, at *3 (E.D. Mich. June 8, 2010) (“Plaintiff falls

short of satisfying the objective component. He did not present any authority for

the proposition that his acid reflux disease presented a serious medical need.”),

report and recommendation adopted, No. 08-CV-14727, 2010 WL 2605832 (E.D.

Mich. June 25, 2010). As explained below, neither the earlier prescription nor

Mr. Tennyson’s statement about constant pain demonstrate that Dr. Cabling knew

that Mr. Tennyson’s case of GERD was a serious one.


                                           7
      First, it appears, according to Mr. Tennyson’s declaration, that the prison

previously provided common over-the-counter medications free of charge through

a prescription system. See R., Vol. I, at 58 (averring that, prior to the policy

change requiring inmates to purchase such medication through the commissary,

Mr. Tennyson had received both Zantac and Tylenol by prescription). Thus the

fact that Mr. Tennyson had previously received a prescription for Zantac from Dr.

Cabling does not necessarily indicate that his condition was a serious one. 3

Accordingly, Dr. Cabling’s knowledge of the earlier prescription does not support

the inference that he was aware that Mr. Tennyson suffered from a serious case of

GERD that could form the basis of an Eighth Amendment claim.

      As for Mr. Tennyson’s statement that he would “be in pain all the time,”

the relevant question here is not whether Dr. Cabling was aware that he would

suffer pain from the denial of Zantac, but rather whether he was aware that this

denial would cause the kind of pain that would be deemed objectively serious for

Eighth Amendment purposes. See Gee v. Pacheco, 627 F.3d 1178, 1192 n.5 (10th

Cir. 2010) (noting that even where information concerning a medical diagnosis is

      3
             For this reason, this is not a case in which a doctor’s recommended
treatment for a medical condition evinces his awareness of the seriousness of the
condition for Eighth Amendment purposes. Cf. Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005) (“[A] ‘medical need is sufficiently serious if it is one that has
been diagnosed by a physician as mandating treatment . . . .’” (quoting Sealock v.
Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000))). Mr. Tennyson has made no
showing that Dr. Cabling mandated treatment for his GERD; he avers only that he
had a prescription at a time when inmates could obtain prescription medications
for non-serious conditions.

                                           8
included in a complaint, a plaintiff “may still fail to establish the existence of a

serious medical need that can support an Eighth Amendment claim”). Not every

twinge of pain suffered by a prisoner places a medical professional under a

constitutional obligation to act. See Al-Turki v. Robinson, 762 F.3d 1188, 1193

(10th Cir. 2014) (“[N]ot every twinge of pain suffered as a result of delay in

medical care is actionable . . . .” (quoting Kikumura, 461 F.3d at 1292)).

      Here, Mr. Tennyson did not at any point, according to his averments, tell

Dr. Cabling about the particular severity of his alleged pain or the other elements

of discomfort that he claims resulted from the denial of Zantac. 4 Cf. Rowe v.

Gibson, 798 F.3d 622, 624 (7th Cir. 2015) (prisoner’s “continuous claims of

severe pain” caused by GERD could support finding of deliberate indifference

(emphasis added)); Mata v. Saiz, 427 F.3d 745, 756 (10th Cir. 2005) (in contrast

to the present case, prisoner’s complaint of chest pains could support deliberate

indifference claim). Nor has Mr. Tennyson alleged that he had a history of

experiencing severe symptoms without Zantac and that Dr. Cabling was aware of

      4
             Mr. Tennyson’s declaration states that since he stopped receiving
Zantac, he has had “countless sleepless nights” and “[his] chest burns so bad” that
he “contemplates inducing [himself] to vomit.” R., Vol. I, at 58. While he avers
that he has “tried to get other med staff to intervene,” he makes no specific
allegation that he has communicated the severity of his symptoms to Dr. Cabling
or anyone else. Without any such averment, on these facts, we cannot conclude
that Mr. Tennyson has made a showing that would satisfy the subjective
component of the deliberate indifference standard. Cf. Greeno v. Daley, 414 F.3d
645, 655 (7th Cir. 2005) (“[T]here is no requirement that a prisoner provide
‘objective’ evidence of his pain and suffering—self-reporting is often the only
indicator a doctor has of a patient’s condition.”).

                                           9
any such medical history. Cf. McDaniels v. Lee, 405 F. App’x 456, 458 (11th Cir.

2010) (“[A] plaintiff may show subjective knowledge by offering specific facts

showing that a defendant knew of a plaintiff’s medical history.”). In sum, Mr.

Tennyson has not shown that Dr. Cabling knew that the denial of Zantac would

cause the kind of pain that could form the basis of a claim under the Eighth

Amendment, and he thus has failed to demonstrate any likelihood of success on

the merits of his deliberate indifference claim.

       For the reasons stated above, we AFFIRM the district court’s denial of Mr.

Tennyson’s motion for a preliminary injunction. We note that the district court

granted Mr. Tennyson leave to proceed on appeal pursuant to 28 U.S.C. § 1915 on

July 6, 2015 and assessed partial payments of the appellate costs and fees. In

light of the district court’s order, we DENY as moot the motion for leave to

proceed on appeal without prepayment of costs and fees that Mr. Tennyson filed

in this court on July 2, 2015, and we VACATE this court’s order of July 2, 2015

assessing costs and fees. Mr. Tennyson is reminded of his obligation to continue

making partial payments of the appellate fees as ordered by the district court until

they are paid in full. 5

       5
              Following a full round of briefing by the parties, Mr. Tennyson
submitted a document styled, “Motion to Cite A Supplemental Authority,” which
our court filed on December 23, 2015. This document includes a citation to a
medical treatise; generally speaking, Mr. Tennyson contends that this authority
bolsters his position regarding the seriousness of GERD. We grant Mr.
Tennyson’s motion and have given due consideration to the contents of this filing
                                                                       (continued...)

                                          10
      For the reasons stated above, we AFFIRM the district court’s denial of Mr.

Tennyson’s motion for a preliminary injunction.


                                            Entered for the Court


                                            JEROME A. HOLMES
                                            Circuit Judge




      5
       (...continued)
in our disposition of this case.

                                       11
