Abernathy v. Anderson

United States Court of Appeals
For the First Circuit

No. 19-1880

FRANKLIN B. ABERNATHY,

Plaintiff, Appellant,

v.

KRYSTAL ANDERSON,

Defendant, Appellee,

CAPTAIN SHAUN DEWEY; SERGEANT MICHAEL RUMERY;
THOMAS GROBLEWSKI, MD, Medical Director for UMass Correctional
Health Inc.; OFFICER GERARD BREAU, a/k/a John Doe II;
LIEUTENANT DAVID DARLING, a/k/a John Doe I;
OFFICER KYLE SHELDON, a/k/a John Doe III; OFFICER SHAWN GYLES,
a/k/a John Doe IV; BRUCE GELB; LUIS SPENCER;
JOHN DOE V, Officer for the D.O.C.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Howard, Chief Judge,
and Barron, Circuit Judge.*

* Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d)
 Ezekiel L. Hill, Diana E. Coleman, and Goodwin Procter LLP on
brief, for appellant.
Tory A. Weigand and Morrison Mahoney LLP on brief, for
appellee.

December 18, 2020
 Per curiam. Plaintiff-Appellant Franklin B. Abernathy

("Abernathy"), an inmate at Souza-Baranowski Correctional Center

("SBCC"), appeals the district court's order granting summary

judgment on his deliberate indifference claim brought under 42

U.S.C. § 1983 against Defendant-Appellee Krystal Anderson

("Anderson"), a nurse at SBCC. Because we agree with the district

court that Abernathy has failed to establish a triable issue that

he had a serious medical need to which Anderson was indifferent,

we affirm.

I. Background

A. Factual Background

On April 3, 2013, Abernathy was incarcerated at SBCC in

the J-Unit tier of the Special Management Unit. At the time,

Anderson worked as a nurse at SBCC. In the morning, Correctional

Officer Kyle Sheldon ("C.O. Sheldon") instructed Abernathy's

cellmate, Leon Shelby ("Shelby"), to remove a blanket that was

covering the rear window of the cell, which Shelby refused to do.

Later that morning, Sergeant Michael Rumery ("Sergeant Rumery")

accompanied Anderson for medication rounds in J-Unit. Upon

reaching Abernathy and Shelby's cell for distribution of

medication, Sergeant Rumery noticed the blanket covering the

window and instructed Abernathy to remove it. Abernathy refused

to remove the blanket because it belonged to Shelby. Sergeant

Rumery then instructed Shelby to remove the blanket, which Shelby

- 3 -
once again refused to do. As a result of Shelby's refusal,

Sergeant Rumery instructed Anderson not to dispense the medication

and told Abernathy that he would not receive his medications until

the blanket was removed from the window.1

Around noontime, C.O. Sheldon went to Abernathy and

Shelby's cell and attempted to hand a tray of food to Shelby.

Shelby, who refused to take the tray, stated that he believed his

food had been tampered with, and then threw a cup of liquid at

C.O. Sheldon, hitting him in the face. As a result of the

altercation, it was ordered that Shelby be placed in restraints.

Sergeant Rumery told Abernathy that he also needed to be placed in

restraints because the correctional officers were going to open

the cell to remove Shelby from it. Abernathy stuck his hands out

of the cell door in order to be handcuffed. According to

Abernathy, the officers "slammed" or "squeezed" the handcuffs on

1 Anderson contends that Sergeant Rumery's decision to not
dispense the medication was due to safety concerns because the
cell was dark due to the blanket covering the window, making it
unsafe to reach into the cell. Abernathy disputes that the cell
was dark and asserts that he turned the light on in the cell when
the interaction with Anderson and Sergeant Rumery began. Also,
according to Anderson, Abernathy received his medication once
"everything calmed down." Abernathy, however, claims he did not
receive his medication until the following day when "[e]verything
went back to normal" and that the delay caused him to experience
muscle spasms ("off and on"), chest pain, and pain in his left
shoulder for twenty-four hours. These discrepancies, however, do
not create an issue of material fact preventing the entry of
summary judgment. See infra.

- 4 -
his wrists so tightly that it affected his blood circulation, and

they then pulled on the handcuffs, twisting his fingers and hands,

causing bleeding and pain in the process.

Correctional officers escorted Abernathy over to the

Special Management Unit medical triage room, where Anderson was

the nurse on duty. According to Abernathy, even though he had

blood on his body and "visible cuts, bruises, and swelling on [his]

hands, wrists, and arms," Anderson refused to assess his medical

needs and refused to provide him with any medication or treatment.2

The next day, Abernathy submitted a sick-call request,

stating that he had bruises and lacerations on both arms, as well

as a strained or broken wrist. In the morning, he received his

medications for pre-existing conditions, including pain

medication, but was not medically assessed for his alleged injuries

from the day before. On April 5, 2013, the SBCC medical staff

assessed Abernathy and determined that he had no bruising or

2 Anderson disputes this fact, though her account has not always
been consistent. In 2013, she stated to OIS investigators that on
April 3, 2013 she assessed Abernathy and that he seemed to be fine
and had no complaints. In 2018, however, Anderson testified in
her deposition that Abernathy did not show up at the triage room
for examination on April 3, and that she was never told that he
wanted to be examined. Regardless, because we are reviewing a
grant of summary judgment, we construe the record in the light
most favorable to Abernathy, the nonmovant. See Ocasio-Hernández
v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015).

- 5 -
swelling, although he did have old, already healed scars. The

medical staff provided Abernathy Motrin 200mg and ordered x-rays.

On April 8, 2013, Abernathy reported the April 3 incident

to Feltus Bradford, a mental health professional at SBCC. The

next day, on April 9, 2013, Abernathy submitted another sick call

request, this time reporting that he was suffering from a numb

wrist, pain in the area near his thumb, soreness from the handcuff

cutting into the flesh of his wrist, and what he thought could be

"nerve damage." Medical progress notes prepared on April 10, 2013

reveal that Abernathy claimed a numb thumb, "scabbing" of the right

thumb joint, tenderness on his wrist, and "ecchymosis" (i.e.

bruising) on "both arms from wrist to elbow."

On April 15, 2013, x-rays were taken of Abernathy's right

wrist and right thumb, showing no fractures, dislocations or other

abnormalities. Progress notes from May 7, 2013, state that

Abernathy complained of "hand pain," but had "no functional

impairment." The medical examiner noted that Abernathy's hands

had no "gross deformity" or "pain on palpation."

B. Procedural Background

In February 2015, Abernathy filed his original complaint

pro se, alleging claims under 42 U.S.C. § 1983 and state tort law

against Anderson and several other defendants. Abernathy later

retained counsel and amended his complaint several times.

Abernathy contends that Anderson's failure to assess and treat his

- 6 -
alleged medical needs on April 3, as well as her refusal to

administer his medication, caused him physical pain, fear, and

anxiety arising from not knowing the extent of his wounds.

The court dismissed the claims against all defendants,

save for those against Anderson. Anderson, the sole remaining

defendant, then moved for summary judgment on all claims against

her: a § 1983 deliberate indifference claim for the alleged denial

of medical care and treatment to Abernathy on April 3, 2013; a

claim for negligence due to Anderson's alleged failure to provide

medical assessment and/or treatment to Abernathy on April 3, 2013;

and a claim for negligent infliction of emotional distress related

to Anderson's alleged actions and/or omissions on that same day.

Abernathy opposed. On July 31, 2019, the district court granted

summary judgment for Anderson on all claims. Abernathy appeals

only the disposition of his § 1983 claim. We thus limit our

discussion accordingly.

II. Discussion

We review a district court's grant of summary judgment

de novo, construing the record in the light most favorable to the

nonmovant and resolving all reasonable inferences in that party's

favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st

Cir. 2015); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.

1990)). Summary judgment may be granted only when "there is no

- 7 -
genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law." Fed. R. Civ. P.56(a). A fact is

considered material when it has the "potential to affect the

outcome of the suit under the applicable law." Sánchez v.

Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (quoting One Nat'l

Bank v. Antonellis, 80 F.3d 606, 608 (1st Cir. 1996)). "A dispute

is 'genuine' if 'the evidence about the fact is such that a

reasonable jury could resolve the point in the favor of the non-

moving party.'" Id. (quoting Rivera–Muriente v. Agosto–Alicea,

959 F.2d 349, 351-52 (1st Cir. 1992)). The party opposing summary

judgment "bears 'the burden of producing specific facts sufficient

to deflect the swing of the summary judgment scythe.'" Theidon v.

Harvard Univ., 948 F.3d 477, 494 (1st Cir. 2020) (quoting Mulvihill

v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003)). "For

this purpose, [it] cannot rely on 'conclusory allegations,

improbable inferences, acrimonious invective, or rank

speculation.'" Id. (quoting Ahern v. Shinseki, 629 F.3d 49, 54

(1st Cir. 2010)).

Abernathy's § 1983 claim alleges that Anderson violated

his Eighth Amendment rights. The Eighth Amendment prohibits "cruel

and unusual punishments." U.S. Const. amend. VIII. Although the

Eighth Amendment "does not mandate comfortable prisons," Rhodes v.

Chapman, 452 U.S. 337, 349 (1981), it does not "permit inhumane

ones" either, Farmer v. Brennan, 511 U.S. 825, 832 (1994).

- 8 -
Accordingly, "the treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny under

the Eighth Amendment." Id. (quoting Helling v. McKinney, 509 U.S.

25, 31 (1993)).

It is well established that "deliberate indifference to

serious medical needs of prisoners constitutes the 'unnecessary

and wanton infliction of pain' proscribed by the Eighth Amendment,"

Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted)

(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)), and is

actionable under 42 U.S.C. § 1983, id. at 105. To succeed on a

deliberate indifference claim under § 1983, a plaintiff must

satisfy a two-prong standard. Leavitt v. Corr. Med. Servs., Inc.,

645 F.3d. 484, 497 (1st Cir. 2011). First, a plaintiff must show,

as an objective matter, that he has a "serious medical need[]"

that received inadequate care. Id. A serious medical need is

that which "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." Id.

(quoting Gaudreault v. Municipality of Salem, 923 F.2d 203, 208

(1st Cir. 1990)). "The 'seriousness' of an inmate's needs may

also be determined by reference to the effect of the delay of

treatment." Id. at 497-98 (quoting Gaudreault, 923 F.2d at 208).

The serious medical need inquiry is fact-specific and must be

- 9 -
tailored to the specific circumstances of the case. See id. at 500

(quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)).

Second, even if the plaintiff satisfies the objective

prong, "the Eighth Amendment is not violated unless prison

administrators also exhibit deliberate indifference to the

prisoner's needs." Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir.

2014). Deliberate indifference under this subjective prong

requires evidence that the failure in providing treatment to the

plaintiff was purposeful. Id. Thus, an "inadvertent failure to

provide adequate medical care" does not give rise to a

constitutional claim. Estelle, 429 U.S. at 105-06; see also Watson

v. Caton, 984 F.2d 537, 540 (1st Cir. 1993). This prong can also

be met by showing a "wanton disregard to a prisoner's needs . . .

akin to criminal recklessness, requiring consciousness of

impending harm, easily preventable." Kosilek, 774 F.3d at 83

(quotations omitted).

Here, the district court concluded that Abernathy's

§ 1983 deliberate indifference claim failed because he could not

show a triable issue of fact as to whether his alleged injuries

constituted a serious medical need. Abernathy v. Anderson, 395 F.

Supp. 3d 123, 126 (D. Mass. 2019). First, the district court

determined that evidence of mere bruises, cuts, swelling, and

superficial lacerations that did not require treatment and did not

lead to infection or complications did not constitute a serious

- 10 -
medical need under our precedent. Id. at 133-34. Second, the

court noted that the evidence in the record did not show that the

alleged delay in examining Abernathy's injuries exacerbated any

medical condition or resulted in permanent damage. Thus, it was

insufficient as a matter of law to show that Abernathy had a

serious medical need. Id. at 134. Finally, the court held that

"[e]ven assuming [that Abernathy's] bruises and cuts were visible

to Anderson on April 3," the record did not contain sufficient

evidence from which a rational jury could conclude that his need

for treatment was so obvious "that even a lay person would easily

recognize the necessity for [medical] attention." Id. (quoting

Gaudreault, 923 F.3d at 208).

On appeal, Abernathy argues that the district court

erred in granting summary judgment on his § 1983 deliberate

indifference claim because there is a genuine issue of material

fact as to whether he had a serious medical need within the meaning

of the Eighth Amendment. He offers three theories in support of

his position.

First, Abernathy posits that there is a material factual

dispute over whether he faced a significant risk of future harm

given that a correctional officer presented him to Anderson for

medical attention and she refused to perform any medical

assessment. Relying on Leavitt, 645 F.3d 484, 500 (1st Cir. 2011),

Abernathy argues that the mere fact that Anderson refused to assess

- 11 -
his injuries "subjected [him] to a substantial risk of harm,"

thereby constituting a "serious medical need" for Eighth Amendment

purposes, regardless of whether his injuries were actually

serious.

"[S]ubjecting individuals to a risk of future harm . . .

can qualify as cruel and unusual punishment." Kosilek, 774 F.3d

at 85-86 (alterations in original) (quoting Baze v. Rees, 553 U.S.

35, 50 (2008)). It is "the particular risk of harm faced by a

prisoner due to the challenged deprivation of care, rather than

the severity of the prisoner's underlying medical condition,

considered in the abstract, that is relevant for Eighth Amendment

purposes." Leavitt, 645 F.3d at 500 (quoting Smith, 316 F.3d at

186). However, the particular risk of harm which can rise to the

level of a serious medical need cannot be a purely hypothetical or

abstract risk. Instead, it refers to an actual risk of harm faced

by the plaintiff-inmate who does not receive the medical attention

that he requests and genuinely needs. See Helling, 509 U.S. at 33

(holding that prospective harm, defined as that which is "sure or

very likely to cause serious illness and needless suffering" to an

inmate in the future, can be the basis for an Eighth Amendment

claim even if the inmate has "no serious current symptoms"); Smith,

316 F.3d at 188 (holding that although "an Eighth Amendment claim

may be based on a defendant's conduct in exposing an inmate to an

unreasonable risk of future harm and that actual physical injury

- 12 -
is not necessary in order to demonstrate an Eighth Amendment

violation," the absence of present physical injury will

nonetheless "often be probative in assessing the risk of future

harm").

In Leavitt, the plaintiff-inmate was deprived of

medication needed to treat his HIV, causing him to suffer severe

withdrawal symptoms, such as "nightsweats, chills, fever, fatigue,

gastrointestinal problems, including vomiting and constipation,

and psoriasis." 645 F.3d at 501. Further, the deprivation of

care created long-term risks by exacerbating his underlying HIV

condition and making him statistically more likely to develop

cancer in the future. Id. We reversed the granting of summary

judgment for the defendant because a reasonable factfinder could

have found that the defendant's deprivation of care subjected the

plaintiff-inmate to serious harm, both short-term and long-term.

Id.

Here, Abernathy claims to have suffered cuts, bruises,

swelling, and some bleeding as a result of the altercation he had

with SBCC's correctional officers on April 3, 2013. Although

taking the facts in the light most favorable to Abernathy, Anderson

refused to assess Abernathy's injuries that day, Abernathy was

medically assessed by SBCC medical staff on April 5, 2013.

Moreover, on April 15, 2013, x-rays were taken of his right wrist

and thumb, showing "[n]o acute fracture, dislocation, or other

- 13 -
acute bony abnormality." Even though Abernathy alleges that

Anderson's refusal to assess his injuries on April 3 created a

"risk of harm" to his health, there is no evidence in the summary

judgment record showing what that future harm could have consisted

of, much less that it would "sure[ly] or very likely [] cause

serious illness and needless suffering" to him in the future.

Helling, 509 U.S. at 33. Accordingly, as opposed to the plaintiff

in Leavitt, for whom the deprivation of HIV medication created a

real and concrete risk of future harm, we conclude that, based on

the evidence in the record, the risk of future harm claimed by

Abernathy is purely hypothetical and that no reasonable jury could

find that Anderson's refusal to assess Abernathy's medical needs

on April 3, 2013 created an objective risk of future harm grave

enough to constitute a serious medical need.

Abernathy next argues that even if he is not entitled to

go to trial on his theory that Anderson's denial of medical care

subjected him to a "substantial risk of harm," there is

nevertheless a triable factual issue as to whether he had a serious

medical need because his injuries were so obvious that even a lay

person -- a correctional officer -- recognized the need for

treatment and escorted him to Anderson.

At the outset, Abernathy has not put forth any

affirmative evidence establishing that the correctional officer

brought him to Anderson because he "recognized" the severity of

- 14 -
Abernathy's need for medical attention. Instead, Abernathy has

merely alleged that he was escorted to the triage room, which is

insufficient to create a genuine dispute of material fact as to

either his contention that the officers took him of their own

accord or that they did so because medical care was necessary. In

any event, even if the correctional officer himself thought that

Abernathy needed medical attention, that alone is not sufficient

for Abernathy's claim to survive.

The serious medical need inquiry for an Eighth Amendment

claim of this nature is an objective test, which cannot be met

merely by pointing to any one lay person's subjective impression

of the seriousness of Abernathy's injuries. The injuries suffered

by Abernathy, to wit, cuts, bruises, swelling, and some bleeding,

absent, for example, any underlying conditions or future

complications, are not the type of wounds that have been typically

viewed as constituting a serious medical need. See, e.g.,

Montes v. Ponce Municipality, 79 Fed. Appx. 448 (1st Cir. 2003)

(holding no serious medical need where detainee was active in cell

after beating and had only swelling and bruising); Chance v.

Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (holding that "[t]he

standard for Eighth Amendment violations contemplates 'a condition

of urgency' that may result in 'degeneration' or 'extreme pain'")

(quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)).

- 15 -
 Relying on this Court's statements in Gaudreault

defining a serious medical need as "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," 923 F.2d at 208 (emphasis added), Abernathy

argues that "a medical need may be proven serious based solely on

how a lay person would perceive it," regardless of whether

treatment is required or if a delay in medical assessment or

treatment had an adverse effect. However, such an interpretation

is inconsistent with our decision in Gaudreault.

In Gaudreault we affirmed the district court's grant of

summary judgment in favor of the defendants on the basis that the

plaintiff had failed to display any serious medical needs during

the hours following his arrest, even though he was beaten by

correctional officers, causing him "multiple bruises, to the

forehead, left and right orbits of his eyes, nasal area, left ribs,

right flank and left shoulder, and . . . a corneal abrasion and an

abrasion on the upper back." Gaudreault, 923 F.2d at 207.

Recognizing that the plaintiff's injuries "may have been 'obvious'

in the sense that his bruises and abrasions were visible," we

concluded that, "the medical record demonstrate[d] that [the

plaintiff] did not display any needs so patent as to make lay

persons" such as the defendant officers "remiss in failing to

arrange for immediate medical attention." Id. at 208. The

- 16 -
plaintiff's injuries failed to constitute a serious medical need

because the doctors and nurses who did examine him ten hours after

his arrest "found him bruised but unbroken, requiring no more

medical care than a sling, an eye-patch and the application of

some disinfectant." Id. Although Abernathy criticizes

Gaudreault, arguing that how a prisoner's injuries turn out, i.e.

whether the injuries ultimately require stitches or become

infected, does not "determine whether [a prisoner's] injuries were

so obvious that even a lay person would easily recognize the

necessity for a doctor's attention," the extent to which a

prisoner's injuries are ultimately assessed as insignificant may

reflect that an objective lay person would not found the injuries

so obvious as to mandate immediate attention in the moment.

Here, there is no evidence in the summary judgment record

showing that Abernathy's injuries were significant enough to give

rise to a serious medical need. Like the plaintiff in Gaudreault,

Abernathy remained "bruised but unbroken," 923 F.2d at 208, after

he was allegedly assaulted by the correctional officers on April

3, 2013. Nor is there any evidence in the record that the

approximately 48-hour delay in medical treatment had any

detrimental effect on Abernathy's injuries. See id. at 208-09

(noting that, although the plaintiff complained that his injuries

would cause his "imminent demise," the medical record -- which

indicated the plaintiff had suffered a deviated septum, a cyst in

- 17 -
his sinus, and some transient nerve damages -- showed no evidence

that the plaintiff's injuries were exacerbated by a delay in

treatment); see also Hernández v. Ashe, 745 F. Supp. 2d 15, 24 (D.

Mass. 2010) (explaining how "[a] primary factor in determining

whether a medical need is serious [in the Eighth Amendment context]

is the effect of denial of treatment"). Indeed, x-rays taken of

his right thumb and wrist revealed no issues and thus, no need for

treatment. Consequently, there is no evidence in the record from

which a reasonable jury could find that the injuries sustained by

Abernathy could have been so obviously serious that a lay person

would have recognized the need for a doctor's attention,

constituting an objective serious medical need for Eighth

Amendment purposes.

We do note, however, that this case is different from

Gaudreault. There, the claim was that several correctional

officers failed to arrange for medical attention for a detainee

whose injuries they did not find to be overly serious. Here, the

claim is that Abernathy reported to Nurse Anderson and she refused

to carry out even a simple assessment of his injuries. That

distinction does not bear, however, on whether Abernathy has

established a genuine dispute of material fact as to whether he

had a "serious medical need" -- as we explain, he has failed to do

so, although we emphasize it could have been relevant to the

deliberate indifference portion of the Eighth Amendment analysis.

- 18 -
 Finally, Abernathy argues that there is a triable issue

of fact as to whether the delay in treating his injuries created

a serious medical need by subjecting him to "severe pain."

According to Abernathy, he was in "significant pain" when he was

taken to Anderson and it is for the jury to determine whether her

refusal to assess his medical needs "resulted in continued pain"

constituting a serious medical need.

Abernathy did not raise this argument below, and, thus

the district court did not consider it. Abernathy's argument in

the district court about there being a triable issue of fact as to

whether he had a serious medical need relied exclusively on

"physical trauma." He did not develop an argument that pain itself

could constitute a serious medical need. Although in his

opposition to summary judgment Abernathy mentioned that he

experienced "severe pain," this fleeting reference to pain was not

made in connection to the argument he now makes that the pain he

experienced constituted a serious medical need. See Pl.'s Opp'n

to Def. Krystal Anderson's Mot. for Summ. J. at 7 (noting that

"[w]hen he was presented to Nurse Anderson for treatment on April

3, 2013 . . . his wrists were lacerated, bruised, and swollen, .

. . and he was bloody and in severe pain," and arguing that,

contrary to Anderson's contentions, there is "a genuine issue of

material fact as to whether" "this physical trauma" qualifies as

a serious medical need). Our case law is clear that, "absent the

- 19 -
most extraordinary circumstances" -- none discernable here -- such

a situation calls for finding Abernathy's newly unveiled argument

waived. Teamsters Union, Loc. No. 59 v. Superline Transp. Co.,

953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is settled in

this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal."); see also

Gray v. Cummings, 917 F.3d 1, 13 (1st Cir. 2019) (noting that

arguments not raised in the district court cannot be advanced on

appeal).

III. Conclusion

In sum, to defeat Anderson's summary judgment motion,

Abernathy had to produce evidence sufficient to allow a reasonable

jury to determine that he had a serious medical need under the

Eighth Amendment. Because the evidence in the record would not

allow a reasonable jury to conclude that the injuries he allegedly

sustained from the handcuffing incident posed a substantial risk

of future harm or were so obvious that even a lay person would

recognize the need for a doctor's attention, we affirm the district

court's entry of summary judgment for Anderson. No costs are

awarded.

Affirmed.

- 20 -