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

                             FOR THE TENTH CIRCUIT                          May 31, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
STEPHEN THENE SPARKS,

      Plaintiff - Appellant,

v.                                                         No. 16-1290
                                               (D.C. No. 1:12-CV-01897-RM-MJW)
TEJINDER SINGH; TED LAURENCE,                               (D. Colo.)

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, MATHESON, and McHUGH, Circuit Judges.
                  _________________________________

      Stephen Thene Sparks, a Colorado inmate, appeals the district court’s grant of

summary judgment to physician assistants Tejinder Singh and Ted Laurence on his

claim that they violated his Eighth Amendment rights by failing to diagnose and treat

his diabetes. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s judgment.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 I.   BACKGROUND

                               A. Diagnostic Standards

      According to the American Diabetes Association (ADA), “Type 2 diabetes is

frequently not diagnosed until complications appear, and approximately one-third of

all people with diabetes may be undiagnosed.” Aplt. App., Vol. 1 at 119. Since

2006, the ADA has used three diagnostic criteria. First, a patient can be diagnosed

with diabetes if he or she exhibits symptoms such as polyuria, polydipsia, and

unexplained weight loss, coupled with a casual plasma glucose greater than or equal

to 200 mg/dl (milligrams per deciliter).1 Second, diabetes can be diagnosed using a

“fasting plasma glucose (FPG)” test, the preferred diagnostic test. Id. at 118. An

FPG of 100 to 125 mg/dl suggests a form of “pre-diabetes” called “impaired fasting

glucose” (IFG), while an FPG of 126 mg/dl or greater is sufficient to diagnose

diabetes itself. Id. (internal quotation marks omitted). Third, diabetes can be

diagnosed if a patient has a two-hour plasma glucose greater than or equal to 200

mg/dl during an oral glucose tolerance test. See id.; see also id. at 142, 144.

      The ADA states that “[p]atients with IFG should be given counseling on

weight loss [and] instruction for increasing physical activity” to prevent or delay the

onset of diabetes. Id. at 120. The ADA also emphasizes the importance of follow-up

counseling and monitoring for diabetes every one to two years, with close attention

paid to cardiovascular risk factors. See id.

      1
       “Casual is defined as any time of day without regard to time since last meal.”
Aplt. App., Vol. 1 at 118.

                                          -2-
      In 2010, the ADA expanded the criteria for detecting impaired glucose and

diabetes by adding the hemoglobin A1c (A1C) test. See id. at 144. According to the

ADA, in general terms, the A1C test measures the percentage of hemoglobin that is

glycated—has a glucose molecule attached to it. See American Diabetes Ass’n,

Diabetes Forecast (June 2010), https://perma.cc/C9HC-YFCB.2 An A1C between

5.7% and 6.4% satisfies the criteria for impaired glucose, while an A1C greater than

or equal to 6.5% is adequate to diagnose diabetes. Aplt. App., Vol. 1 at 144.

According to the ADA’s 2010 guidelines, patients with IFG are at high risk for

developing diabetes and cardiovascular disease, and thus “individuals with an A1C of

5.7% - 6.4% should be informed of their increased risk for diabetes as well as

[cardiovascular disease] and counseled about effective strategies to lower their

risks . . . .” Id. Through 2010, the Colorado Department of Corrections (CDOC)

followed the ADA guidelines for diagnosing IFG and diabetes using FPG levels, but

CDOC did not employ the A1C test until sometime after April 2011, see id. at 139;

Aplee. Br. at 10.

                       B. Mr. Sparks’ Condition and Treatment

1. Test results—2006-2010

      Mr. Sparks first had his blood tested on August 17, 2006, when he was an

inmate at CDOC’s Limon Correctional Facility. His FPG at the time was 104 mg/dl,

which classified him as IFG. Aplt. App., Vol. 1 at 116. On February 14, 2007, a


      2
          The Perma.cc link archives the referenced webpage.

                                         -3-
blood test showed his FPG had risen to 109 mg/dl. Id. at 122. A September 5, 2007

blood test showed his FPG rose again to 123 mg/dl, near the top of the IFG range.

Id. at 191. The record does not reflect that Mr. Sparks had any blood tests between

September 2007 and April 2010, but on April 28, 2010, a blood test revealed a

non-fasting glucose level of 177 mg/dl, id. at 137. Additional blood work done on

August 16, 2010 showed Mr. Sparks’ FPG had fallen to 103 mg/dl, id. at 145, though

his A1C was 7.0%—high enough to diagnose him with diabetes under the newly

expanded ADA diagnostic guidelines, id. at 146. Despite this information,

Mr. Sparks testified he was not informed or counselled about his impaired glucose

level.

2. Mr. Sparks and Mr. Singh—September 2010

         In September 2010, Mr. Sparks was transferred to CDOC’s Arkansas Valley

Correctional Facility. As part of the routine intake process, Mr. Singh, a physician

assistant (PA), reviewed Mr. Sparks’ medical records—he did not actually see

Mr. Sparks—and noted the results of his most recent blood work: an FPG of 103

mg/dl and a 7% A1C. Although Mr. Singh knew the diagnostic standards for

impaired glucose and diabetes, see id., Vol. 2 at 236, and circled Mr. Sparks’ IFG of

103 mg/dl, see id., Vol. 1 at 145, Vol. 2 at 245, he did not refer Mr. Sparks to the

chronic care clinic. He reasoned that Mr. Sparks had not been diagnosed with a

qualifying condition, such as hypertension, diabetes, or hepatitis C, and impaired

glucose was not an acute or chronic condition.



                                          -4-
      Moreover, Mr. Singh stated at his deposition, based on notes in the medical

records, that Mr. Sparks had been educated about his glucose impairment and the

need for a proper diet and exercise by his medical provider at Limon, Gisela Walker.

He said Ms. Walker had counseled Mr. Sparks about his elevated glucose levels

“[m]aybe four or five times.” Id. at 237. He cited six ambulatory notes from 2006

through 2008, which purport to show that Ms. Walker counseled Mr. Sparks on his

impaired glucose levels, see id., Vol. 1 at 187-92. Mr. Singh testified that he had

recently accessed Mr. Sparks’ medical records and discovered the notes. See id.,

Vol. 2 at 237-38 (depo. at 48-49, lines 10-3). He indicated he had no independent

knowledge whether Mr. Sparks was counselled, see id. at 240 (depo. at 59-60, lines

20-9), and conceded his testimony was based on the six ambulatory notes, which he

could not recall reviewing when he processed Mr. Sparks’ intake, see id. at 244

(depo. at 73, lines 4-6). Nevertheless, Mr. Singh stated that he had reviewed the

entire chart during the September 2010 intake and the records were part of the chart.

Id. at 240 (depo. at 59-60, lines 25-5).

3. Mr. Sparks and Mr. Laurence—April 2011

      In April 2011, Mr. Sparks went to the prison’s medical clinic for leg pain. He

was evaluated by another PA, Mr. Laurence, who sent him to the hospital for

treatment of deep vein thrombosis. Blood tests at the hospital indicated his A1C had

risen to 8.5%, and a hospital discharge note listed controlled diabetes among the

“[d]ischarge [d]iagnoses,” id., Vol. 1 at 186. Also, the note stated, “Probably has

new onset [diabetes] which may have contributed by [sic] relative dehydration.” Id.

                                           -5-
      Mr. Sparks was discharged from the hospital to a CDOC infirmary located at

another facility called “Territorial,” id., Vol. 2 at 332. An infirmary provider

received a call from a hospital physician, Dr. Drake. According to an infirmary note,

Dr. Drake told the provider that Mr. Sparks’ A1C was 8% and he had a questionable

history of diabetes, which Mr. Sparks apparently confirmed. See id., Vol. 1 at 184.

      When Mr. Sparks returned to Arkansas Valley later in April 2011,

Mr. Laurence did not treat him for either diabetes or impaired glucose, despite the

information contained in the hospital records and the infirmary note. Mr. Laurence

acknowledged during his deposition that he would have reviewed the infirmary note

when Mr. Sparks returned to Arkansas Valley, but when presented with the infirmary

note, he said it reflected only a questionable history of diabetes. See id., Vol. 2 at

333 (depo. at 82, lines 4-7). He then denied seeing any documentation indicating that

Mr. Sparks was actually diagnosed with diabetes. Id. (depo. at 82, lines 15-23).

Further, he explained, “I usually review the infirmary notes if they’re in the chart,”

id. at 334 (depo. at 87, lines 16-19), and it was “common practice” to review

inmates’ infirmary notes when they return from the hospital, id. at 335 (depo. at 89,

lines 17-20). But he said he probably would not have prescribed medication if the

infirmary had not started any medication. See id. at 334 (depo. at 87, lines 22-24).

He also clarified that the lab reports from the hospital “may have been in the chart

when [Mr. Sparks] returned, but [he] did not remember seeing the documentation.”

Id. at 334 (depo. at 87, lines 1-3). He admitted that it would have been important to



                                          -6-
be aware of this type of record and that he would have started Mr. Sparks on

medication if had he seen the lab report from the hospital.

4. Mr. Sparks’ February 2012 Complications and Treatment

      In February 2012, Mr. Sparks became acutely ill. On February 1, he went to

the medical clinic, reporting an emergency. He described symptoms of frequent,

darkly colored urination, a sore throat and mouth, fever, chills, trouble sleeping and

eating, coughing with yellow and green sputum, and a burning sensation in his chest.

Also, his gums and throat were red with white patches. After an evaluation, a nurse

gave Mr. Sparks ibuprofen and instructions to return to the clinic if his symptoms

worsened. Mr. Singh also prescribed an antibiotic, though he did not evaluate

Mr. Sparks that day.

      The next day, Mr. Sparks returned to the clinic reporting no improvement. He

said he had been up all night, nauseous and vomiting. He had a low-grade fever,

enlarged cervical nodes, and no improvement to the sores in his mouth, gums, and

throat. Mr. Singh diagnosed pharyngitis, prescribed Omerprazole, continued the

antibiotics, and ordered an additional injection of antibiotics. He also instructed

Mr. Sparks to drink more water to maintain proper hydration and to sleep with his

head elevated to reduce the symptoms of acid reflux.

      On February 4, 2012, Mr. Sparks again returned to the clinic. This time he

said he could not swallow, his tongue was swollen, he was having trouble breathing,

and he was vomiting “acid.” Id., Vol. 1 at 209. He reported eating almost nothing in

the past couple of days, not even water. A nurse examined Mr. Sparks and noted his

                                          -7-
lips and cheeks appeared swollen, he had a white film on the inside of his mouth and

on his tongue, and he had papules on his hands. The nurse consulted with

Mr. Laurence, who was on-call. Mr. Laurence ordered a urinalysis, which revealed

abnormal amounts of ketones and sugar in Mr. Sparks’ urine. Additionally, his

non-fasting blood glucose was 396 mg/dl. Based on this information, Mr. Laurence

directed the nurse to administer fluids and insulin, which dropped Mr. Sparks’

glucose to 296 mg/dl. Once Mr. Sparks was stable, Mr. Laurence transferred him to

the hospital, where doctors diagnosed him with diabetes.

                                  C. Procedural History

      Based on these events, Mr. Sparks filed a pro se complaint under 42 U.S.C.

§ 1983, alleging Mr. Singh and Mr. Laurence violated his Eighth Amendment rights

by failing to diagnose and treat his diabetes.3 Mr. Singh and Mr. Laurence moved for

summary judgment, and through counsel, Mr. Sparks filed a response in opposition.

      Mr. Sparks argued that Mr. Singh was deliberately indifferent to his serious

medical needs by failing to refer him to the chronic care clinic upon transfer to

Arkansas Valley. He insisted Mr. Singh knew he had impaired glucose levels and

also knew the attendant risks of it progressing to diabetes, and yet he did nothing.

      Mr. Sparks alleged that Mr. Laurence failed to treat him for diabetes after he

was discharged from the hospital in April 2011. Citing Mr. Laurence’s testimony


      3
         Mr. Sparks named additional defendants, all of whom were dismissed by the
district court and are not parties to this appeal.


                                          -8-
that he would have reviewed the infirmary records reflecting an 8% A1C and a

questionable history of diabetes, Mr. Sparks claimed Mr. Laurence disregarded a

substantial risk of harm by failing to begin treatment when he returned to Arkansas

Valley.

      The district court rejected these arguments and granted summary judgment to

Mr. Singh and Mr. Laurence.4 This appeal followed.

                                   II. DISCUSSION

                     A. Standard of Review and Legal Background

      “We review the district court’s grant of summary judgment de novo, applying

the same legal standards the district court applied under Federal Rule of Civil

Procedure 56(a).” Helget v. City of Hays, 844 F.3d 1216, 1221 (10th Cir. 2017).

“‘The [c]ourt shall grant summary judgment 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.’” Id. (quoting Fed. R. Civ. P. 56(a)). A fact is material if it could

“affect the outcome of the suit”; a dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). “At the summary judgment stage, the judge’s

function is not . . . to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at 249.


      4
        The district court noted that defendants raised qualified immunity as a
defense, but the court did not analyze the issue. Defendants have not addressed
qualified immunity on appeal, and we do not consider it.

                                          -9-
      “A prison official’s deliberate indifference to an inmate’s serious medical

needs is a violation of the Eighth Amendment’s prohibition against cruel and unusual

punishment.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). “‘Deliberate

indifference’ involves both an objective and a subjective component.” Sealock v.

Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). “The objective component is met if

the deprivation is ‘sufficiently serious.’” Id. (quoting Farmer v. Brennan, 511 U.S.

825, 834 (1994)). The parties do not dispute that impaired glucose and diabetes are

sufficiently serious medical conditions that satisfy the objective component. Thus,

we do not consider the objective component and evaluate only the subjective

component, careful to maintain the critical distinction between the two. See Self v.

Crum, 439 F.3d 1227, 1233 (10th Cir. 2006) (analyzing only the subjective

component where the parties agreed the objective component was met).

      The subjective component of a deliberate indifference claim “requires the

plaintiff to present evidence of the prison official’s culpable state of mind.” Mata,

427 F.3d at 751. An official will not be liable unless he “‘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.’” Self, 439 F.3d at 1231 (quoting

Farmer, 511 U.S. at 837). But an official may be liable if he knew the prisoner

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

reasonable measures to abate it.’” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.

1999) (quoting Farmer, 511 U.S. at 847).

                                         - 10 -
      We have explained that “[t]he deliberate indifference standard lies somewhere

between the poles of negligence at one end and purpose or knowledge at the other.”

Mata, 427 F.3d at 752 (internal quotation marks omitted). The deliberate

indifference standard poses “a high evidentiary hurdle” “akin to recklessness in the

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

substantial risk of serious harm.” Self, 439 F.3d at 1231, 1232 (internal quotation

marks omitted).

      Whether a prison official had the requisite knowledge of a substantial
      risk is a question of fact subject to demonstration in the usual ways,
      including inference 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. This is so because if a risk is obvious so
      that a reasonable man would realize it, we might well infer that the
      defendant did in fact realize it.

Mata, 427 F.3d at 752 (brackets, citation, and internal quotation marks omitted).

      “[T]he subjective component is not satisfied, [however,] absent an

extraordinary degree of neglect, where a doctor merely exercises his considered

medical judgment.” Self, 439 F.3d at 1232. Indeed, the Eighth Amendment is not

infringed “when a doctor simply resolves the question whether additional diagnostic

techniques or forms of treatment is indicated.” Id. (internal quotation marks

omitted). Thus, in the context of a missed diagnosis or delayed referral, there must

be direct or circumstantial evidence that “the need for additional treatment or referral

to a medical specialist is obvious.” Id. “The fact that a serious medical need was

‘obvious’ could be evidence of deliberate indifference,” id. at 1231, such as where “a



                                         - 11 -
medical professional fails to treat a medical condition so obvious that even a layman

would recognize the [need for additional treatment],” id. at 1232.

      Our cases recognize two ways in which the subjective component may be

shown. “First, a medical professional may fail to treat a serious medical condition

properly,” and second, a prison official may act as a gatekeeper and “prevent an

inmate from receiving treatment or deny him access to medical personnel capable of

evaluating the need for treatment.” Sealock, 218 F.3d at 1211. In either case, the

“inadvertent failure to provide adequate medical care” tantamount to negligence does

not satisfy the deliberate indifference standard. Estelle v. Gamble, 429 U.S. 97,

105-06 (1976).

                                       B. Analysis

1. Mr. Singh

      Mr. Sparks’ claim against Mr. Singh is premised on a gatekeeper theory. He

argues that Mr. Singh failed to refer him to the chronic care clinic upon admission to

Arkansas Valley in September 2010, despite knowing he had impaired glucose levels.

Specifically, Mr. Sparks contends that Mr. Singh reviewed his chart, recognized his

most recent lab results from August 2010 reflected an IFG of 103 mg/dl and an A1C

of 7%, and yet Mr. Singh did nothing. Implicit in this argument is that the chronic

care clinic could have counselled Mr. Sparks on the benefits of a proper diet and

exercise to delay or prevent the onset of diabetes. Mr. Sparks contends that

Mr. Singh consciously disregarded the risks of his IFG and diabetes by failing to

ensure he was counselled, despite knowing those risks.

                                        - 12 -
       The district court rejected this argument, ruling that “[t]he possibility that

plaintiff’s impaired glucose levels could progress to a diabetic condition that would

then require referral to the chronic care clinic is insufficient to support allegations of

reckless disregard by Singh.” Aplt. App., Vol. 1 at 30.

       This reasoning, however, does not distinguish the objective and subjective

components of the deliberate indifference test. The parties agree that impaired

glucose is itself an objectively serious condition. “The Eighth Amendment also

protects against future harm to an inmate.” Hunt, 199 F.3d at 1224. The question,

therefore, is not whether Mr. Sparks’ impaired glucose would progress to diabetes. It

is whether Mr. Singh, despite knowing about Mr. Sparks’ impaired glucose levels

when he reviewed Mr. Sparks’ chart in September 2010, disregarded his known risk

factors of developing diabetes by failing to ensure he was counselled on his impaired

glucose and the benefits of a proper diet and exercise.

       On this score, Mr. Singh testified, based on the notes, that Ms. Walker

educated Mr. Sparks on the importance of a proper diet and exercise when

Mr. Sparks was incarcerated at Limon. He said she counselled Mr. Sparks repeatedly

over several years and took his family history, including his mother’s diagnosis of

diabetes. Aplt. App., Vol. 2 at 235. Although Mr. Singh had no independent

knowledge of whether Mr. Sparks had actually been counselled and conceded that his

testimony was based on the six ambulatory notes recorded by Ms. Walker, see id. at

243-44 (depo. at 72-73, lines 23-6), he also said these ambulatory notes were in



                                          - 13 -
Mr. Sparks’ medical chart and he reviewed the entire chart, see id. at 240 (depo. at

59-60, lines 20-5).

      This testimony precludes finding deliberate indifference because Mr. Singh

would have seen the ambulatory notes reflecting Mr. Sparks’ counselling at the time

of intake, even if Mr. Singh could not remember those notes by the time he was

deposed. Mr. Sparks fails to create a factual dispute by citing his testimony that

CDOC never counselled him on his impaired glucose because it has no bearing on

Mr. Singh’s state of mind when he reviewed Mr. Sparks’ medical chart and saw

records purporting to show that Mr. Sparks had been counselled. Cf. Mata, 427 F.3d

at 756 (holding that prison official’s state of mind is evaluated at the time treatment

is denied, regardless of whether the inmate subsequently received care by other

personnel). Consequently, Mr. Singh was entitled to summary judgment.

2. Mr. Laurence

      Mr. Sparks claims that Mr. Laurence failed to diagnose and begin treating his

condition in April 2011 when he returned to Arkansas Valley from the infirmary

following his hospital discharge.5 Mr. Sparks cites his hospital records, which

reflected an 8.5% A1C, and the infirmary note, which reported a questionable history

of diabetes, and says Mr. Laurence was deliberately indifferent in failing to treat him

for diabetes despite having reviewed these records. Mr. Laurence denied having

reviewed the hospital records, but he does not dispute that he had reviewed the

      5
       Mr. Laurence was consulted by the nurse who evaluated Mr. Sparks in
February 2012, but Mr. Sparks’ claim is not predicated on that interaction.

                                         - 14 -
infirmary note. See Aplee. Br. at 29 (“P.A. Laurence’s review focused on records

concerning the medical condition for which he had sent Mr. Sparks to the

hospital . . . . Those records included a chart entry summarizing a call from a

hospital doctor to a medical provider at the CDOC’s infirmary.”). He contends,

however, that he was not deliberately indifferent because neither the hospital

physician nor the infirmary provider actually diagnosed diabetes or prescribed

medication.

      The district court accepted this argument and concluded that Mr. Laurence had

provided a level of care consistent with Mr. Sparks’ symptoms. The court reasoned

that during interactions with Mr. Sparks both in April 2011 and February 2012,

Mr. Laurence triaged the urgent condition, stabilized Mr. Sparks, and sent him to the

hospital for treatment.

      This analysis does not directly address Mr. Sparks’ claim, which is not

predicated on how Mr. Laurence treated him on these two occasions. And the fact

that other medical providers failed to prescribe medication at that time does not

resolve the claim against Mr. Laurence. Mr. Sparks’ claim is that Mr. Laurence knew

of and disregarded a substantial risk of harm when Mr. Sparks returned from the

infirmary following his hospitalization in April 2011. We must therefore examine

what Mr. Laurence reviewed and knew at that time.

      Initially, when asked at his deposition whether he would have reviewed the

hospital records, Mr. Laurence said, “Maybe.” Aplt. App., Vol. 2 at 333 (depo. at 81,

line 6). He was more direct when asked whether he would have reviewed the

                                         - 15 -
infirmary records, stating, “Yes, sir.” Id. (depo. at 81, line 10). But when presented

with the actual infirmary note, Mr. Laurence said it showed only a questionable

history of diabetes, and he denied “review[ing] any sort of documentation that

showed that Mr. Sparks had been diagnosed with diabetes when he returned to”

Arkansas Valley. Id. (depo. at 82, lines 16-18). He also denied receiving a copy of

the hospital discharge note and said he was not given any indication of the potential

new diagnosis when Mr. Sparks returned from the infirmary. See id. at 334 (depo.

at 86, lines 10-24).

       Mr. Laurence clarified, however, that the lab report in the hospital records

showing the 8.5% A1C may have been in the chart but he could not remember seeing

it. Id. (depo. at 87, lines 1-3). Further, he testified, “I would have reviewed the

infirmary notes. I do not remember reviewing that entry.” Id. at 335 (depo. at 89-90,

lines 25-1). Also, he said the infirmary note may have been included in Mr. Sparks’

medical chart when he returned from the infirmary, but he could not recall seeing it.

He explained the documents are typically in chronological order in the medical chart

and sometimes “[i]t’s easy to miss some of th[e] encounters due to the location in the

chart.” Id. (depo. at 91, lines 6-9).

       a. Hospital records

       Mr. Laurence’s testimony reflects that he did not see, or did not remember

seeing, the hospital records. Although his failure to review those records may have

been negligent, such negligence is insufficient to satisfy the deliberate indifference

standard. See Sealock, 218 F.3d at 1211 (recognizing that a medical professional

                                         - 16 -
may claim as a defense that he was only negligent in diagnosing or treating a medical

condition).6

        b. Infirmary note

        The next question is whether Mr. Laurence was deliberately indifferent in

April 2011 by failing to act on the information in the infirmary note. Mr. Laurence

does not dispute he reviewed the infirmary note, which contained the following

shorthand reference to a questionable history of diabetes: “Dr. Drake said pt.’s A1C

was 8, w/ ?h-o D.M.” Aplt. App., Vol. 1 at 184.

        Mr. Laurence testified that he would not have been concerned with the 8%

A1C because CDOC was not using the A1C test to diagnose diabetes at the time. See

id., Vol. 2 at 335-36 (depo. at 92-93, lines 20-4). Indeed, he repeatedly said A1C

results were immaterial or unimportant because CDOC was not using it to diagnose

diabetes. See id. at 330 (depo. at 69, lines 5-6); id. at 336 (depo. at 93, lines 3-4). In

light of CDOC’s exclusion of the A1C test, Mr. Laurence’s testimony demonstrates

that he did not subjectively believe the A1C results manifested a substantial risk of

harm.

        6
        We note a significant distinction between this case and Sealock, where a
defendant PA candidly admitted that he would have summonsed an ambulance for an
inmate experiencing unexplained chest pain if he had known about the inmate’s chest
pain. 218 F.3d at 1211-12. We reversed the grant of summary judgment in favor of
the PA because there was conflicting evidence as to whether he did, in fact, know
about the inmate’s chest pain. Id. at 1212. Here, Mr. Laurence similarly
acknowledged that if he had seen the hospital lab reports, he would have said
Mr. Sparks was diabetic and begun treating him for diabetes. See Aplt. App., Vol. 2
at 334, 336. But unlike Sealock, there is no evidence controverting Mr. Laurence’s
testimony that he did not see the hospital lab reports.

                                          - 17 -
      Regarding the infirmary note’s comment that Mr. Sparks had a questionable

history of diabetes, we must ascertain whether it presented an obvious need for

treatment or a medical judgment to begin treatment. A medical professional’s failure

to treat a medical condition so obvious that even a layperson would understand the

need for additional or specialized treatment could support an inference of deliberate

indifference. See, e.g., Oxendine v. Kaplan, 241 F.3d 1272, 1279 (10th Cir. 2001)

(reversing dismissal for failure to state a claim where the complaint alleged a prison

physician reattached an inmate’s severed portion of finger and denied specialized

follow-up care despite knowing that amputated portion of finger was decaying, had

turned “jet black,” and was gradually falling off (internal quotation marks omitted)).7

The reference to Mr. Sparks’ questionable history of diabetes did not manifest an

obvious need for treatment. Although it put Mr. Laurence on notice of a potential

risk, our legal standard requires an obvious risk to create an inference of deliberate

indifference. See Mata, 427 F.3d at 752 (“[I]f a risk is obvious so that a reasonable

man would realize it, we might well infer that the defendant did in fact realize it.”

(brackets and internal quotation marks omitted)).

      Absent an obvious risk, the need for additional treatment usually is a question

of medical judgment, which is not a predicate for deliberate indifference. See Self,

      7
         Obviousness may also arise in two other contexts that do not apply here—
viz., when (1) “a medical professional recognizes an inability to treat the patient due
to the seriousness of the condition and his corresponding lack of expertise but
nevertheless declines or unnecessarily delays referral” and (2) “a medical
professional completely denies care although presented with recognizable symptoms
which potentially create a medical emergency.” Self, 439 F.3d at 1232.

                                         - 18 -
439 F.3d at 1232 (“Matters that traditionally fall within the scope of medical

judgment are such decisions as whether to consult a specialist or undertake additional

medical testing.”). Mr. Laurence could still possibly be liable if he had recognized a

substantial risk of harm and yet failed to confirm whether Mr. Sparks needed

treatment. See Mata, 427 F.3d at 752 (“An official would not escape liability if the

evidence showed that he merely refused to verify underlying facts that he strongly

suspected to be true, or declined to confirm inferences of risk that he strongly

suspected to exist.” (internal quotation marks omitted)). But the record shows that

did not happen here.

      The infirmary note’s cursory reference to a questionable history of diabetes

was not a confirmed diagnosis requiring treatment. Nor did it manifest a clear

directive for treatment such that a reasonable jury could infer that Mr. Laurence was

deliberately indifferent. Cf. Erickson v. Pardus, 551 U.S. 89, 90, 94 (2007)

(reversing dismissal for failure to state a claim of deliberate indifference where

complaint alleged prison officials diagnosed inmate as requiring treatment for

hepatitis C, removed him from his prescribed medication, and refused to provide

treatment). And the infirmary note’s reference to a questionable history of diabetes

did not raise such a strong inference of actual, present risk that Mr. Laurence must

have suspected a potential need for treatment warranting definitive confirmation or

disconfirmation. See Mata, 427 F.3d at 752. Without such evidence, the decision

whether to treat Mr. Sparks based on a questionable history of diabetes would have



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been a question of medical judgment, which does not support an inference of

deliberate indifference here.8

      In sum, the infirmary note’s reference to a questionable history of diabetes did

not signal a need for treatment so obvious that even a layperson would recognize it.

The law requires a level of obviousness that did not exist here, and the record shows

Mr. Laurence’s subjective understanding of whether to treat Mr. Sparks was within

the realm of medical judgment. Mr. Laurence was entitled to summary judgment.

                                 III. CONCLUSION

      The judgment of the district court is affirmed.



                                                 ENTERED FOR THE COURT,


                                                 Scott M. Matheson, Jr.
                                                 Circuit Judge




      8
         If there had been a definitive diagnosis of diabetes, Mr. Laurence’s testimony
is that a medical response would have been proper and he would have exercised his
medical judgment to determine an appropriate response. See Aplt. App., Vol. 2 at
334, 336.

                                        - 20 -
