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

                           FOR THE TENTH CIRCUIT                      December 15, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
LORENZO S. MONTEZ,

             Plaintiff–Appellant,

v.                                                        No. 14-8008
                                                 (D.C. No. 2:13-CV-00112-NDF)
ROBERT O. LAMPERT, WDOC                                     (D. Wyo.)
Director; SANDRA LANDEROS,
WMCI Caseworker,

             Defendants–Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, GORSUCH, and MORITZ, Circuit Judges.


      Lorenzo Montez, a Wyoming state prisoner proceeding pro se, appeals from

the district court’s order granting summary judgment to defendants on his 42 U.S.C.

§ 1983 claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
       After examining the briefs and appellate record, this panel 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                            I

      Montez was temporarily housed at the Goshen County Detention Center

(“Goshen”) from March 18, 2013 to April 22, 2013. Although he did not report a

hernia during his intake evaluation, he later asked his case worker, defendant Sandra

Landeros, to assign him to a bottom bunk because of a hernia. Landeros looked for,

but did not find, a bottom-bunk restriction in his file. She denied his request,

assigned him to an upper bunk, and told him he had to go through the medical staff,

who would “determine his medical need for a bottom bunk.” Montez then asked

Goshen employee Barbara Tuttle if he could be moved to a bottom bunk. On April

4, Tuttle responded that she had contacted Corizon, the contracted medical provider

of the Wyoming Department of Corrections (“WDOC”), and was informed that

Montez did not have a bottom-bunk restriction. Montez did have an old bottom-bunk

restriction from Dr. John Coyle, but it did not indicate the reason for the restriction,

and was valid only from April 3, 2008 to January 1, 2009. Montez later produced

evidence that he had hernia surgery in 1998.1

      On or about April 12, 2013, Montez fell while climbing down from his upper

bunk and injured his arm. When nurse Kathy Moorehouse examined him shortly

thereafter, she diagnosed a “light blue bruise” and prescribed ibuprofen. Montez


      1
        Montez presented evidence of his 1998 surgery in a “Motion to Submit New
Evidence.” Because we may excuse pro se litigants for their “unfamiliarity with
pleading requirements,” we grant this motion. See, e.g., Diversey v. Schmidly, 738
F.3d 1196, 1199 (10th Cir. 2013).



                                           -2-
requested an X-ray but did not receive one. At some point, Landeros allegedly told

other staff members “not to worry” about his injury. She claims to have seen him

carrying a television soon after his fall. In November 2013, after he had left Goshen,

Montez’s arm was finally X-rayed, and a nurse concluded that he “may have broken

[his] arm bone right below [his] elbow.”

      Montez filed a grievance, which was denied. In May 2013, he sued Landeros

for violating his Eighth Amendment rights by refusing to assign him to a bottom

bunk and instructing staff “not to worry” about his injury. He also sued WDOC

Director Robert Lampert. The district court converted defendants’ motion to dismiss

into a motion for summary judgment and granted it. Montez appealed.

                                           II

      We review the grant of summary judgment de novo, “applying the same

standard as the district court.” Thomas v. City of Blanchard, 548 F.3d 1317, 1322

(10th Cir. 2008). Summary judgment is appropriate if there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Atl. Richfield

Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). We view

the evidence and draw all reasonable inferences in the light most favorable to

Montez, the nonmoving party. Tolan v. Cotton, 134 S. Ct. 1861, 1866-68 (2014).

Because Montez proceeds pro se, we construe his filings liberally. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).




                                           -3-
                                            A

      For Montez to prevail on his claim that the conditions of his incarceration

violated his Eighth Amendment rights, he must prove: (1) the “conditions [were]

sufficiently serious to implicate constitutional protection”; and (2) “prison officials

acted with deliberate indifference to [his] health or safety.” DeSpain v. Uphoff, 264

F.3d 965, 971 (10th Cir. 2001) (quotations omitted) (citing Farmer v. Brennan, 511

U.S. 825, 834 (1994)). To prevail on the objective “sufficiently serious” prong,

Montez must prove that he was “incarcerated under conditions posing a substantial

risk of serious harm.” Id. “A medical need is sufficiently serious if it is one that has

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

even a lay person would easily recognize the necessity for a doctor’s attention.”

Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quotations omitted). The

subjective “deliberate indifference” prong is a test “equal to recklessness.” DeSpain,

264 F.3d at 972. It “is met if a prison official knows of and disregards an excessive

risk to inmate health or safety.” Sealock, 218 F.3d at 1209 (quotations omitted).

                                            1

      On appeal, Montez repeats his argument that Landeros’ refusal to assign him

to a bottom bunk violated his Eighth Amendment rights. Viewing the facts in the

light most favorable to Montez, we assume that there is a causal link between his

hernia, fall, and arm injury. But his statement to Landeros, by itself, does not prove

that assigning him to an upper bunk objectively posed a substantial risk of serious

harm. See Farmer, 511 U.S. at 834 (requiring such a showing where claim is “based

                                           -4-
on a failure to prevent harm”). He has yet to provide a physician’s diagnosis of a

hernia that necessitated his assignment to a bottom bunk while he was at Goshen.

And the records Montez submitted on appeal show only that he had a hernia

operation in 1998. They do not say if he continued to suffer any hernia-related

symptoms while at Goshen, nor do they document any bottom-bunk restriction

beyond Dr. Coyle’s, which expired in 2009. Moreover, a 15-year-old hernia

operation would neither present symptoms readily ascertainable to a lay person, nor

make it obvious to a lay person that a bottom-bunk assignment was necessary. See

Sealock, 218 F.3d at 1209. Montez thus fails the objective prong of the Farmer test.

        Because his need for a bottom-bunk assignment based on his 15-year-old

hernia operation was not obvious, Montez cannot show that Landeros disregarded an

excessive risk to his health or safety by assigning him to a top bunk. See Farmer,

511 U.S. at 842 (stating that “a factfinder may conclude that a prison official knew of

a substantial risk from the very fact that the risk was obvious”). Landeros did make

some effort to investigate Montez’s claims that he had a bottom-bunk assignment, but

found nothing to confirm them, and thus is not liable for failing to investigate. See

id. at 843 n.8 (explaining that a defendant can be liable under the Eighth Amendment

if “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”). The

fact that Landeros investigated Montez’s claim demonstrates that she did not

recklessly disregard it. He thus does not meet the subjective prong of the Farmer

test.

                                          -5-
                                            2

      Montez’s claim that Landeros was deliberately indifferent to his arm injury by

telling Goshen staff “not to worry” also does not meet the objective prong of Farmer.

Montez was diagnosed with only a “light blue bruise” by a nurse, who was more

sophisticated than a lay person. Moreover, when he did receive an X-ray, it revealed

only that he “may” have broken his arm, meaning there is no evidence of a

physician’s diagnosis confirming that he broke his arm in the April 2013 fall.

      Nor does Montez prevail on Farmer’s subjective prong on this claim.

Landeros observed him carrying a television not long after he fell. Based on this

observation, Landeros can hardly be considered reckless by telling others “not to

worry” about Montez’s arm, or to have disregarded an excessive risk to his safety.

See id. at 842 (reasoning that the obviousness of risk can support finding that

defendant knew risk was “substantial”).

                                            B

      Montez also argues that WDOC Director Lampert is liable for the injuries he

suffered. “Supervisory status alone does not create § 1983 liability. Rather, there

must be an affirmative link between the constitutional deprivation and either the

supervisor’s personal participation, his exercise of control or direction, or his failure

to supervise.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations

and quotations omitted). Montez can only affirmatively link Lampert to his injuries

through a letter denying his grievance appeal, and we have concluded that denials of

grievances alone do not link prison officials to constitutional deprivations. Id.

                                           -6-
       Citing Satchell v. Dilworth, 745 F.2d 781, 786 (2d Cir. 1984), Montez claims

that a supervisory official may be retained as a defendant for the purpose of

discovering which of the official’s subordinates are the proper defendants. But

Montez did not seek discovery before the district court, and on appeal he has not

suggested that he was unable to identify any other potential defendants. Accordingly,

Satchell provides no basis for Montez to retain Lampert as a defendant.

                                            C

       On appeal, Montez also argued that WDOC employees retaliated against him.

“[P]rison officials may not retaliate against or harass an inmate because of the

inmate’s exercise of his constitutional rights.” Peterson v. Shanks, 149 F.3d 1140,

1144 (10th Cir. 1998) (quotations omitted). “An inmate must allege specific facts

showing retaliation because of the exercise of the prisoner’s constitutional rights.”

Id. (quotations and emphasis omitted). Montez has failed to allege any specific facts

showing specific acts of retaliation against him by WDOC staff or officials as a result

of his grievance or this lawsuit. He is accordingly not entitled to relief.

                                            D

       Finally, Montez argues that Corizon failed to update or timely deliver medical

records showing that he had hernia surgery in 1998. We reject this argument because

he did not advance this argument in the district court. Consequently, there is nothing

for us to review. See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 640

(10th Cir. 2012) (explaining that an appellant is barred from raising a claim not

asserted in the district court).

                                           -7-
                                             III

       For the foregoing reasons, the judgment of the district court is AFFIRMED.

We GRANT Montez’s motion to submit new evidence. We instruct the clerk’s

office to file “Appellant’s Combined Opening Brief and Application” as his reply

brief, and we DENY the request therein for habeas corpus relief.2 We also DENY

the request therein that we appoint counsel, because Montez has ably presented

relevant arguments while proceeding pro se. We GRANT Montez’s motion to

proceed in forma pauperis, but we remind him that he is obligated to continue making

partial payments until his entire filing fee is paid in full.


                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge




       2
        Montez did not request habeas corpus relief before the district court, and he
is accordingly barred from requesting it on appeal. Daniels, 701 F.3d at 640.


                                             -8-
