King v. Patt

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

FOR THE TENTH CIRCUIT May 10, 2013

Elisabeth A. Shumaker
Clerk of Court
KEVIN K. KING,

Plaintiff-Appellee,

v. No. 12-4107
(D.C. No. 2:04-CV-00829-TC-PMW)
DAVE PATT; DARREL MCCOY; (D. Utah)
LYLE STOREY; SPENCER DOBSON;
JON NEIGHBOR,

Defendants-Appellants.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.

Plaintiff Kevin K. King, a pro se inmate, brought this civil rights case against

defendants alleging they had been deliberately indifferent to his serious medical

needs. The defendants moved for summary judgment asserting qualified immunity

from suit. The district court denied their motion, and they filed this interlocutory

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
appeal. We affirm the district court’s determination that Mr. King’s placement on

work release did not insulate defendants from his Eighth Amendment claims, and we

reject defendants’ contention that Mr. King’s claims fail as a matter of law for lack of

expert medical testimony concerning causation. We dismiss the defendants’

remaining claims for lack of appellate jurisdiction.

BACKGROUND

Mr. King alleges that the defendants violated the Eighth Amendment by failing

to provide adequate care for his broken wrist and detached retina. The defendants,

sued in their individual capacities, are officials at the Washington County Jail (Jail)

where Mr. King was held on a parole violation. They include the Jail Commander,

Jon Neighbor, charged with denying Mr. King’s grievances concerning his medical

care; Nurse David Patt,1 who supervised and was directly involved with his medical

care; Officers Spencer Dobson and Lyle Storey, who worked in the Jail’s control

room and to whom Mr. King allegedly complained about his eye problems, without

success; and Officer Darrel McCoy, who also allegedly denied Mr. King’s medical

requests.

Wrist Injury

Mr. King was arrested on May 29, 2002, on a parole violation. Before being

booked into the Jail he was taken to the Dixie Regional Medical Center for

1
Nurse Patt passed away after the filing of this suit and is now represented by
his estate.

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evaluation. There, he was seen by Dr. B. Christiansen, who diagnosed him with a

broken scaphoid bone in his wrist and gave him a splint to wear. Dr. Christiansen

prepared a Prisoner Medical Clearance Report stating that Mr. King should see an

orthopedic specialist within 24 to 48 hours.2

Notwithstanding Dr. Christiansen’s instructions, Mr. King was never taken to

see an orthopedist. Instead, on June 6, 2002, he was examined by Cecil Huff, a

Registered Nurse and independent contractor who had been hired to treat inmates at

the Jail.3 Mr. King asserts that during his visit with Nurse Huff he complained of his

wrist problem. Nurse Huff’s examination notes do not reflect such a complaint. But

Mr. King asserts that as a result of Nurse Patt’s failure, as supervisor of his medical

care, to follow Dr. Christiansen’s instructions that he be seen by an orthopedic

specialist, his wrist did not properly re-set and has healed in the wrong position

causing him permanent lack of mobility and pain.

Detached Retina/Loss of Vision

In June 2002, while recreating at the Jail, Mr. King was allegedly hit in the

right eye by a handball. He alleges that he put in a medical request concerning his

2
The Medical Center also prepared aftercare instructions informing Mr. King
that he should call as soon as possible to make an appointment to be seen by a doctor
within 24 hours, and that his doctor would be able to tell him how long he would
have to continue wearing the splint. Mr. King asserts that he did not receive a copy
of these aftercare instructions until many months later.
3
Nurse Huff was originally named as a defendant in this action but the district
court dismissed him as part of a screening order.

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eye on July 28, 2002, which the defendants never answered. The defendants assert

that Mr. King made his first medical request concerning the eye injury on August 2,

2002, when he submitted a medical request form complaining of pain and vision

problems in his right eye.

As a result of the August 2 request, Mr. King was examined on August 5,

2002, by Nurse Huff. Nurse Huff noted a total lack of red reflex in Mr. King’s right

eye and recommended that he see an ophthalmologist. He allegedly communicated

this recommendation to Nurse Patt. Medical literature in the record notes that a lack

of red reflex is a known indicator of a detached retina or other serious conditions.

Such conditions are generally considered an optical emergency warranting prompt

referral to an eye specialist.

In the weeks that followed, Mr. King attempted to obtain care for his eye

problem. On August 18, 2002, he put in a request to see an eye doctor due to

headaches and worsening of his vision. Defendant McCoy denied his request on the

grounds that eye exams were allowed only to inmates who had been at the jail for six

months or more.

On August 21, 2002, Mr. King put in another medical request, asking to be

transported out of the Jail to see an eye doctor on August 23, 2002, between the hours

of 1 and 4 p.m. Nurse Patt denied the request, stating that Mr. King would be taken

to a specialist at the next available opening. Also on August 21, Mr. King asserts

that he complained to defendants Officers Storey and Dobson about headaches,

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nausea, dizziness and lack of vision in his right eye. He complains that the officers

told him they had contacted medical and that they were told that he would be seen,

but he was not.

On August 26, 2002, before Mr. King could be seen by a specialist at the Jail’s

expense, he was placed in a work release program. This program, known as the

Halfway Back Program, is supervised by Adult Probation and Parole.4 The program

required Mr. King to continue to be detained at the Jail when he was not at work.

But as a condition of admission to the program, he was required to sign a form

stating that he, not the Jail, would be responsible for his medical care while he was in

the program.

Two days later, on August 28 and while on work release, Mr. King visited the

Doctors’ Free Clinic of St. George, Utah, complaining of failing eyesight and

headaches. Free Clinic personnel made an emergency appointment for Mr. King to

see Dr. Ronald L. Snow, an ophthalmologist, on August 30. On August 29, the

director of the Free Clinic, DeAnne Felt, contacted the Jail to confirm Mr. King’s

appointment. She was told that there would be no problem getting Mr. King to the

appointment.

Mr. King failed to appear at his August 30 appointment. He asserts that Jail

personnel failed to inform him of the appointment. In an affidavit submitted to the

4
The defendants note that it was the parole division, not the defendants, who
approved his placement in the program.

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district court, the Jail did not deny that this might have been the case, but it invoked

security concerns, noting that “oral messages outside of the Washington County Jail

are not delivered to inmates” and that “being on work release, Mr. King was free to

contact Ms. Felt or anyone else with respect to his medical needs.” Aplt. App., Vol. I

at 175 (Declaration of Bart Bailey, Washington County Undersheriff). The

defendants did not explain why Mr. King was not transported to his appointment after

Jail personnel told Ms. Felt there would be no problem getting him to the

appointment.

According to Ms. Felt, after Mr. King failed to appear on August 30 she

rescheduled his appointment to September 12, 2002. On that date, Dr. Snow saw

Mr. King, diagnosed him with a detached retina, and informed him that due to the

delay in treatment he might have permanent vision loss.5 At that time, Dr. Snow

recommended “evaluation and management by a retinal specialist.” Id. at 314 (Snow

treatment notes).6

5
In their court-ordered Martinez report, the defendants at first asserted that
Mr. King failed to show up for his September 12 appointment with Dr. Snow, and
chose to be seen at “Dixie’s Free Clinic in St. George” [sic] instead. Aplt. App.,
Vol. I at 122. They later admitted that Mr. King was seen by Dr. Snow. See id.,
Vol. II at 410.
6
The defendants tell a very different story about Mr. King’s appointments with
Dr. Snow. In their appellate statement of facts, they omit any mention of the August
30 appointment and contend that it was Jail personnel who made the September 12
appointment, after Mr. King saw Nurse Huff in August. Defendants also characterize
this appointment as being made for Mr. King at the “earliest possible time.” Aplt.
Opening Br. at 15. Defendants admit that Mr. King was not told of the appointment,
however, until he was placed on work release. They contend this was for security
(continued)
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 Following his appointment with Dr. Snow, Mr. King filed a level one

grievance challenging Nurse Patt’s medical qualifications and asserting that his

decision to delay treatment had caused him permanent injury. After receiving no

timely response, Mr. King filed two additional grievances on September 26, 2002,

again challenging Nurse Patt’s qualifications, complaining about the Jail’s failure to

notify him of his appointment on August 30, 2002, and asserting that Nurse Patt’s

decision to delay treatment had caused him permanent injury.7

Jail Commander Jon Neighbor reviewed the grievances and informed Mr. King

that Mr. King was responsible for “attend[ing] to your medical needs immediately

during your work release” but that “we will attend to any and all the [sic] emergency

needs of the offenders in our custody regardless of their housing status.” Id., Vol. II

at 576. He then referred the grievances to Nurse Patt for a response.

Nurse Patt responded to the grievances, stating in pertinent part that “[i]t is

unfortunate that you have suffered injury to your eye. You chose to go to the Free

Clinic instead of an ophthalmology specialist as directed which contributed to the

reasons, “to prevent escape attempts orchestrated by family, friends or accomplices
of the inmate.” Id. at 16. For summary judgment and qualified immunity purposes,
we must credit Mr. King’s version of the facts, which we note is corroborated by
some documentary evidence.
7
One of these grievance forms is marked “VOID” and Mr. King apparently had
to write around the word “void” to complete the grievance. See Aplt. App., Vol. I
at 62.

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delay in treatment. . . . [W]hile I empathize with your problem, we are not to blame

for your outcome.” Id., Vol. I at 321 (all-caps style omitted).

In the months that followed, Mr. King received permission and was released to

go to other eye appointments while on work release, but he did not keep the

appointments. When his probation officer asked why he did not keep the

appointments, he stated that he could not afford them.

On October 2, 2002, Mr. King filed a grievance requesting that the Jail pay for

his eye treatment. Mr. Neighbor denied the grievance. While acknowledging that

Mr. King claimed that his finances prohibited him from seeking the medical care he

needed, Mr. Neighbor stated that while on work release, Mr. King was responsible

“to pay for that care or seek some other community provider to pay for the same.”

Id. at 202.

On December 19, 2002, Mr. King had an appointment to see a retinal expert in

Nevada but he was denied permission to travel out of state. The same day he was

released from the Jail for work release but returned late to the Jail, prompting his

parole officer to initiate parole revocation proceedings. Mr. King stipulated to the

alleged parole violations and consented to being returned to prison where he could

receive eye treatment.

Following his return to prison Mr. King received a prompt referral for

treatment at the University of Utah Moran Eye Center. On February 28, 2003, nearly

seven months after Nurse Huff noted his lack of red reflex, he had an initial

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consultation with Dr. Paul Bernstein. Just over a week later Dr. Bernstein performed

a very aggressive surgery in an attempt to repair the detached retina. The surgery

proved unsuccessful, however, and Mr. King was left essentially blind, with only

bare light perception, in his right eye. Dr. Bernstein later opined that an earlier

surgery would likely have resulted in a better outcome.

District Court Decision

As noted, the district court denied qualified immunity on both of Mr. King’s

claims. Concerning his broken wrist, the district court ruled that a jury could

reasonably conclude that the defendants’ willful failure to review and act upon the

Medical Clearance Report by obtaining specific follow-up treatment amounted to

deliberate indifference. The district court concluded that a genuine issue of material

fact existed concerning whether the defendants were aware of and disregarded

Mr. King’s need for follow-up treatment for his broken wrist.

Concerning Mr. King’s eye injury, the district court noted the record did not

support defendants’ assertion that they were only generally aware of Mr. King’s eye

problems. There was evidence that Nurse Patt attended the eye exam at which the

lack of red reflex was discovered, that he reviewed Nurse Huff’s findings, and that he

knew of the seriousness of Mr. King’s symptoms and the need for prompt follow-up

care. The record also raised serious questions concerning the adequacy of

defendants’ efforts to obtain treatment for Mr. King. The district court further

concluded that defendants’ actions “lend support to [Mr. King’s] argument that work

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release was merely a tactic to avoid providing costly medical treatment to [him].”

Id., Vol. II at 680.

DISCUSSION

1. Legal Principles

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). When a defendant asserts qualified immunity at summary

judgment, the burden shifts to the plaintiff to show that (1) the defendant violated a

constitutional right and (2) the constitutional right was clearly established. Bowling

v. Rector, 584 F.3d 956, 964 (10th Cir. 2009).

“This court reviews the denial of qualified immunity on summary judgment

de novo.” Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003) (internal

quotation marks and italics omitted). Summary judgment is appropriate “if the

movant shows that there is no genuine issue as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The evidence is

viewed, and reasonable inferences are drawn from the evidence, in the light most

favorable to the nonmoving party.” Verdecia, 327 F.3d at 1174. An order

denying qualified immunity before trial is appealable “only to the extent that the

denial . . . turns on an issue of law.” Price-Cornelison v. Brooks, 524 F.3d 1103,

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1108 (10th Cir. 2008). Review on interlocutory appeal is not available for

“question[s] of ‘evidence sufficiency.’” Johnson v. Jones, 515 U.S. 304, 313 (1995).

An Eighth Amendment claim of deliberate indifference to serious medical

needs requires the plaintiff to demonstrate “both an objective and a subjective

component.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). To satisfy

the objective component, “[t]he prisoner must first produce evidence that the

deprivation at issue was in fact sufficiently serious.” Mata v. Saiz, 427 F.3d 745, 751

(10th Cir. 2005) (internal quotation marks omitted). The subjective component

requires “evidence of the prison official’s culpable state of mind,” which may be

fulfilled by showing that the official “[knew] of and disregard[ed] 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 she must

also draw the inference.” Id. (brackets and internal quotation marks omitted).

2. Factual Disputes

Many of the defendants’ appellate challenges involve attacks on the district

court’s determination that, when viewed in the light most favorable to Mr. King, the

evidence sustained his evidentiary burden. For example, defendants challenge

whether there was any evidence that they knew about Mr. King’s wrist injury and

thus could have been deliberately indifferent to it. Aplt. Opening Br. at 21, 26. The

district court found that the Medical Clearance Report put them on notice of the

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injury. The defendants’ argument to the contrary presents a question of evidence

sufficiency. We lack jurisdiction over such issues in this interlocutory appeal.

Similarly, defendants argue that the evidence Mr. King presented did not

establish sufficient knowledge on their part of his serious eye condition to constitute

deliberate indifference. Id. at 27-28. The district court rejected this contention,

noting that Nurse Patt attended his eye exam with Nurse Huff and reviewed

Nurse Huff’s findings. Also, Nurse Patt admitted that he was aware of the

seriousness of Mr. King’s symptoms and of his need for prompt follow-up care.

Again, defendants’ argument is simply a non-justiciable attack on the sufficiency of

the evidence.

Defendants argue that they repeatedly gave Mr. King the opportunity to see an

eye specialist, but that he opted not to do so. This contention is also the subject of

factual disputes. Genuine issues of material fact remain concerning who made the

appointments for Mr. King and whether defendants interfered with or at least failed

to facilitate at least one of the appointments he claims he made for himself.

Finally, defendants argue that Mr. King failed to establish that each of them

personally participated in the alleged Eighth Amendment violation. A plaintiff

alleging a claim for denial of his constitutional rights pursuant to 42 U.S.C. § 1983

must demonstrate that the defendants each were personally involved in the alleged

constitutional violation. Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012). It

is true that the district court did not always separately analyze the role of each

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individual defendant in each of the incidents described; in its decision, it frequently

referred to “the defendants” en masse.

Unfortunately for defendants, however, their arguments on this point tend to

be too vague and general to present an authentic appellate issue. See Aplt. Opening

Br. at 25 (“Washington County Defendants respectfully submit that Mr. King has

failed to demonstrate how they, everyone [sic] of them, violated his Constitutional

rights.”). In fact, in denying responsibility for Mr. King’s injuries, defendants

themselves adopt the district court’s approach of referring to themselves

en masse rather than individually. Id. at 22, 25, 26, 27, 30, 31. Their only

adequately-developed argument on this point concerns whether Officers Storey and

Dobson personally participated in the denial of medical care. The district court

implicitly found sufficient personal participation by these officers, see Aplt. App.,

Vol. II at 672, and notwithstanding defendants’ subtle re-characterization of the

district court’s factual findings, see Aplt. Opening Br. at 11-12 & n.36,8 we lack

jurisdiction to review the district court’s determination of evidentiary sufficiency.

8
The district court recited that on August 21, 2002,
Plaintiff complained to the control room officers on duty, Defendants
Storey and Dobson, about headaches, nausea, dizziness and lack of
vision in his right eye. Plaintiff’s declarations state that Storey and
Dobson refused to contact medical and instead mocked and teased
Plaintiff. In his grievances, however, Plaintiff states that the officers
contacted the medical department and were told that Plaintiff would be
seen as soon as possible but apparently they never followed up.

Aplt. App., Vol. II at 672 (emphasis added).
(continued)
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 3. Legal Issues

Defendants do present two discrete legal issues for our review. First, they

argue that the Jail was not legally responsible for payment of Mr. King’s medical

expenses while he was on work release, or at least that any Eighth Amendment

obligation for them to pay was not clearly established. Second, they contend that

Mr. King’s claims fail as a matter of law because he neglected to present expert

medical testimony that any actions or inactions on their part were the proximate

cause of his alleged injuries. We now turn to these issues.

A. Jail’s Responsibility for Payment of Medical Expenses

Defendants argue that they had no clearly-established Eighth Amendment

obligation to pay for Mr. King’s medical care while he was on work release. The

district court did not directly resolve the merits of this assertion. Nor do we find it

necessary to do so. Instead, the district court characterized defendants’ argument as

unavailing for two reasons. First, it overlooks Plaintiff’s claim that
failure to provide prompt treatment before granting work release
violated the Eighth Amendment. And, second, it ignores the possibility
that placing Plaintiff on work release, despite knowledge of an urgent,
preexisting condition for which Plaintiff could not obtain care on his
own, might itself amount to deliberate indifference.

Aplt. App., Vol. II at 683.

Defendants challenge each of these rationales. First, they note that they did

not “place[] [Mr. King] on work release despite knowing of his medical condition.”

Defendants’ version of these events omits the reference to the officers’ failure
to follow up. Aplt. Br. at 12.

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Aplt. Opening Br. at 33. They argue that it was the Utah State Board of Pardons that

placed Mr. King on work release, at his request. But defendants’ knowledge that

plaintiff was potentially scheduled to enter the work release program did not excuse

them from attempting to provide him with treatment for his urgent eye problem

before he was released to the program. Cf. Ortiz v. City of Chicago, 656 F.3d 523,

531 (7th Cir. 2011) (stating jailers do not have a license “to deny all arrestees all

medical care simply because they will probably be transferred within 48 hours. . . .

[A] detainee cannot be treated like a hot potato.”). In particular, we note that

Mr. King signed the medical release form, making him responsible for his own

medical care, on August 8, 2002, a full eighteen days before he went on work release.

Defendants also argue that the district court’s analysis was erroneous because

Mr. King failed to establish that their alleged deliberate indifference prior to his

participation in work release caused his vision loss. This contention dovetails with

their causation issue, to which we now turn.

B. Lack of Expert Testimony Concerning Causation9

In response to defendants’ summary judgment motion, Mr. King submitted two

letters from Dr. Bernstein, the surgeon who attempted to save the vision in his right

9
The defendants’ causation argument adequately addresses only Mr. King’s eye
injury, see Aplt. Opening Br. at 30-32, and we therefore consider only the showing of
causation concerning that injury.

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eye.10 In the first letter, dated June 27, 2003, Dr. Bernstein stated:

I think it is true that it is likely that you would have had a better
outcome had you been seen sooner. We always prefer to repair retinal
detachments soon after the first symptoms, because this maximizes the
outcome. You[r] retinal detachment had been present for many, many
months, and by the time we operated, you had a dense cataract and a
very fibrotic retina. As you know, I was unable to repair it, despite my
best efforts.

Aplt. App., Vol. II at 521.

In the second letter, dated May 27, 2004, Dr. Bernstein stated:

With the original trauma [in June 2002], and flashes of light, these were
the first signs and symptoms that something was amiss with your eye.
If you had been seen by an eye doctor at that time, it may have been
possible to diagnose a retinal tear or a very small retinal detachment,
which could have been treated much more easily than the very advanced
retinal detachment with which I was confronted when I first saw you in
February of 2003. Thus, my opinion is that prompt medical care when
you first had your symptoms of flashes and floaters might have led to a
much better outcome in your right eye.

Id. at 522.

10
In district court, the defendants argued that the letters from Dr. Bernstein
should be excluded as impermissible hearsay. In their opening brief in this court,
they devote a single sentence in a footnote to this contention. Aplt. Opening Br.
at 32 n.86 (“Washington County Defendants objected to the District Court’s
consideration of Dr. Bernstein’s letters as evidence because they were speculation
and inadmissible hearsay.”). This is insufficient argument to raise an appellate issue
concerning the hearsay rule. In particular, it does not put Mr. King on notice of the
need to respond in his brief by attempting to assert the inapplicability of, or an
exception to, the hearsay rule. We therefore deem any issue about the hearsay nature
of Dr. Bernstein’s letters to be forfeited for purposes of this appeal, and we will not
address it further. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679
(10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived . . .”).

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 Defendants present two arguments concerning Mr. King’s alleged failure to

establish causation. First, they argue that Mr. King was obliged to provide expert

testimony to establish that their deliberate indifference was the proximate cause of

his loss of vision. Second, they argue that the evidence was insufficient as a matter

of law to establish causation. We reject both arguments.

“Although frequently important in § 1983 actions, expert testimony is

normally not indispensable as the law rarely predicates recovery upon expert

testimony.” Martin A. Schwartz, Section 1983 Litigation Federal Evidence § 6.01[C]

(5th ed. 2012) (emphasis and internal quotation marks omitted). We have located no

published authority in this circuit establishing a bright-line rule for when expert

medical testimony is required in a prisoner medical-treatment case. Other circuits

have reached divergent results concerning whether and when expert testimony is

required. Compare, e.g., Ortiz, 656 F.3d at 535 (citing cases holding that “in delay

of medical care cases . . . non-expert evidence is sufficient as long as it permits the

fact-finder to determine whether the delay caused additional harm”); Hathaway v.

Coughlin, 37 F.3d 63, 68 (2d Cir. 1994) (“We have never required plaintiffs alleging

a denial of adequate medical care in a Section 1983 action to produce expert medical

testimony. The inquiry remains whether the treating physician or other prison

official was deliberately indifferent to a prisoner’s serious medical needs, not

whether the doctor’s conduct is actionable under state malpractice law”), with

Alberson v. Norris, 458 F.3d 762, 765-66 (8th Cir. 2006) (“Where the complaint

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involves treatment of a prisoner’s sophisticated medical condition, expert testimony

is required to show proof of causation.”).

We agree with the authorities cited above holding that expert testimony is not

required in cases where the jury can determine from the non-expert evidence

presented whether the delay caused additional harm. We are unwilling to hold that

expert testimony is never required in a deliberate-indifference case involving delay of

medical care. In some instances, the effects of delay may be so subtle or complex

that a lay jury cannot adequately determine the issue of causation without expert

assistance. Cf. McCarthy v. Weinberg, 753 F.2d 836, 839 (10th Cir. 1985) (noting, in

deliberate indifference case, that “[t]he factual, medical issues involved are complex,

requiring the presentation of expert opinion” and thus district court should have

appointed counsel for plaintiff).

But this is not such a case. The record evidence establishes that loss of red

reflex is a sign of an optical emergency requiring immediate referral to a qualified

specialist. Genuine issues of material fact remain concerning whether defendants

facilitated or hindered Mr. King’s attempts to obtain care for his eye problem after he

was seen by Nurse Patt. At a minimum, defendants may have failed in their role as

“gatekeepers” charged with insuring that Mr. King received prompt and adequate

optical care from an appropriate specialist. See Sealock, 218 F.3d at 1211 (describing

“gatekeeper” role in deliberate-indifference case).

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 We turn to the defendants’ claim that the evidence of causation is insufficient

to carry Mr. King’s burden. Although defendants raised the causation issue in their

motion for summary judgment, the district court did not specifically detail the

evidence it concluded was sufficient to establish causation. We may therefore

consider de novo in this qualified immunity appeal, the issue of whether a reasonable

jury could conclude that the defendants’ particular charged conduct caused additional

harm to Mr. King’s eye. See Lynch v. Barrett, 703 F.3d 1153, 1160 n.2 (10th Cir.

2013) (stating district court’s decision should “state[] facts tending to establish each

element of a plaintiff’s claim” to avoid exception requiring this court to “look behind

a district court’s order denying officials qualified immunity at the summary judgment

stage.” (emphasis added)), petition for cert. filed (U.S. Mar. 8, 2013) (No. 12-9207).

Our de novo review of the evidence convinces us that the letters submitted by

Dr. Bernstein were sufficient to meet Mr. King’s summary-judgment burden on the

issue of causation. Dr. Bernstein’s statements could permit a reasonable jury “to

determine [that] the delay caused additional harm.” Ortiz, 656 F.3d at 535.

Dr. Bernstein opined in his second letter that prompt care at the first sign of

symptoms could have led to a better outcome. Contrary to defendants’ argument, this

opinion concerning the possibility of a better outcome qualifies as evidence rather

than mere speculation. See Bass ex rel. Lewis v. Wallenstein, 769 F.2d 1173, 1184

(7th Cir. 1985) (finding, in jury trial case, that physician’s expert testimony that

inmate would have had a ten to thirty percent chance of survival had prison doctor

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responded several minutes sooner than he did to heart attack was not unduly

speculative and sufficed to prove causation; noting that “the evidence need not have

established that if [the inmate] had been given advanced cardiac life support

immediately upon his arrival in the emergency room his chance for survival would

have been 100%. The law does not require and medicine cannot provide such

exactitude.”). We therefore conclude that Mr. King met his summary-judgment

burden to establish causation, and the district court properly denied qualified

immunity on this ground.

CONCLUSION
Defendants have failed to show that the district court erred in denying their

motion for summary judgment on the basis of qualified immunity. We lack

jurisdiction to consider their arguments that challenge the district court’s findings

concerning the sufficiency of the evidence. We therefore affirm the district court’s

determination that Mr. King’s placement on work release did not insulate defendants

from his Eighth Amendment claims, reject defendants’ contention that Mr. King’s

claims fail as a matter of law for lack of expert medical testimony concerning

causation, and dismiss the defendants’ remaining claims for lack of appellate

jurisdiction.

Entered for the Court

William J. Holloway, Jr.
Senior Circuit Judge

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