Progressive, Standard-of-Care Treatment Defeats Eighth Amendment Deliberate Indifference; No Monell Liability Without a Predicate Violation

Introduction

In Potter v. Johnson, No. 25-8033 (10th Cir. Oct. 20, 2025), the United States Court of Appeals for the Tenth Circuit affirmed summary judgment against a Wyoming state prisoner who alleged that a regional medical director and a private correctional healthcare contractor violated the Eighth Amendment by delaying needed surgery to remove infected hernia mesh. The case centers on two claims under 42 U.S.C. § 1983: (1) an individual-capacity claim that the physician acted with deliberate indifference to a serious medical need by delaying surgery, and (2) a municipal-liability claim under Monell against CHS TX, Inc., d/b/a YesCare, premised on an alleged policy of delaying or denying prisoners’ surgeries.

The panel (Judges Tymkovich, Baldock, and Federico) held that the record, viewed liberally in light of the pro se plaintiff’s filings, revealed no genuine dispute of material fact on the subjective deliberate indifference element. Because no predicate constitutional violation could be found, the Monell claim against the corporate healthcare provider also failed as a matter of law. Although issued as a nonprecedential order and judgment, the decision is citable for its persuasive value and provides clear guidance on the evidentiary showing necessary to survive summary judgment in prison medical care cases—especially those alleging a delay in surgery.

Summary of the Opinion

Exercising jurisdiction under 28 U.S.C. § 1291, the Tenth Circuit reviewed de novo the district court’s grant of summary judgment. The court:

Reiterated the dual objective and subjective components of Eighth Amendment deliberate indifference.
Emphasized that where medical providers respond to symptoms, treat within the accepted standard of care, and escalate interventions appropriately, an inference of deliberate indifference is unwarranted.
Held that uncontested medical expert testimony establishing adherence to the standard of care defeated the claim as a matter of law.
Affirmed summary judgment for the physician because the record did not support that he knew of and disregarded a substantial risk of serious harm.
Affirmed summary judgment for YesCare under Monell because, absent a predicate constitutional violation, entity liability cannot lie.

The court also noted the case was submitted without oral argument and is nonbinding except under ordinary preclusion doctrines, though it may be cited consistently with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Factual Background in Focus

The record established a progressive course of care leading to surgery:

2012: Plaintiff underwent bilateral inguinal hernia repair with mesh.
Aug. 2021: Dr. Johnson examined plaintiff for right groin pain; found no hernia; assessed pain possibly from mesh/scar tissue. A medical expert opined there was no clinical indication for further intervention at that time, and plaintiff did not contest this opinion.
Sept. 2021: Dr. Johnson administered a lidocaine/Kenalog injection for chronic post-hernia pain, with a plan to refer to a general surgeon if no improvement. Expert testimony confirmed this was within the standard of care.
Nov.–Dec. 2021: Nurse Practitioner (NP) Rutz treated a superficial sore with topical and then oral antibiotics; expert testimony deemed this standard-of-care escalation.
Jan. 2022: Sore reopened; another course of oral antibiotics prescribed; expert testimony supported reasonableness.
Feb. 2022: Surgical consult scheduled; expert testimony deemed this appropriate absent emergency indicators.
Mar. 2022: General surgeon (Dr. Fortier) examined plaintiff; wound then healed; recommended exploratory mesh removal if wound reopened.
Apr. 2022: Sore reopened; NP Rutz referred plaintiff back for surgery.
May 2022: Surgery performed, infected mesh removed.

The plaintiff originally referenced misconduct beginning in March 2021 but walked that back in discovery; like the district court, the panel began its analysis with August 2021.

Analysis

Precedents Cited and Their Role

Estelle v. Gamble, 429 U.S. 97 (1976): Established that deliberate indifference to a prisoner’s serious medical needs constitutes cruel and unusual punishment actionable under § 1983. The panel cites Estelle as the foundation for Eighth Amendment medical claims.
Farmer v. Brennan, 511 U.S. 825 (1994): Articulated the two-part test—objective seriousness and subjective deliberate indifference—and defined the required mental state: the official must know of and disregard an excessive risk. The panel uses Farmer to frame both components and to emphasize the “knowledge-and-disregard” requirement.
Wilson v. Seiter, 501 U.S. 294 (1991): Confirmed that Eighth Amendment claims require a culpable state of mind; cited via Farmer in support of the subjective element.
Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996): Defined a “serious medical need” as one diagnosed as mandating treatment or obvious to a layperson. The panel invokes Riddle to outline the objective prong.
Self v. Crum, 439 F.3d 1227 (10th Cir. 2006): Critical to the outcome. It holds that deliberate indifference is not satisfied, absent an extraordinary degree of neglect, where a doctor exercises considered medical judgment; and when a doctor orders treatment consistent with symptoms and monitors the patient, an inference of deliberate indifference is unwarranted. The panel repeatedly relies on Self to conclude that progressive, standard-of-care treatment negates the subjective element.
Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000), and Estate of Hurtado ex rel. Hurtado v. Smith, 119 F.4th 1233 (10th Cir. 2024): Cited for summary judgment principles—nonmovants must go beyond unsubstantiated allegations and designate specific facts creating a genuine dispute.
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013), rev’d on other grounds, 575 U.S. 768 (2015): Provides the general summary judgment standard and the requirement to view facts in favor of the nonmovant.
Pelt v. Utah, 539 F.3d 1271 (10th Cir. 2008), and Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976 (10th Cir. 2002): Address the movant’s burden at summary judgment—either negate an essential element or show the nonmovant lacks evidence to carry the burden at trial.
Monell v. Department of Social Services, 436 U.S. 658 (1978), and Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003): Establish that municipalities and private entities acting under color of state law may be liable under § 1983 only when a policy, practice, or custom is the moving force behind a constitutional violation.
Crowson v. Washington County, 983 F.3d 1166 (10th Cir. 2020), and Trigalet v. City of Tulsa, 239 F.3d 1150 (10th Cir. 2001): Clarify that without an underlying constitutional violation by an official, Monell liability cannot attach to an entity. The panel relies on these to dispose of the claim against YesCare.
Howard v. U.S. Bureau of Prisons, 487 F.3d 808 (10th Cir. 2007): Supports the liberal construction of pro se filings, a principle the panel acknowledged while enforcing evidentiary burdens.

Legal Reasoning

The court’s reasoning proceeds along three principal axes: the deliberate indifference framework, the evidentiary posture at summary judgment, and the derivative nature of Monell liability.

1) Deliberate Indifference: Objective and Subjective Components

While Mr. Potter alleged a serious medical need tied to an infected mesh, the panel noted that at the inception of the disputed period (August 2021) a medical expert opined there was no clinical indication for further intervention, and plaintiff did not contest that evidence. This observation undermined any claim that, at least initially, there existed a substantial risk of serious harm to which a provider could be deliberately indifferent.

More broadly, the court found the record showed continuous, responsive medical care: pain management injections; topical then oral antibiotics; scheduling a surgical consult when appropriate (and no emergency signs were present); surgical evaluation; and, when the sore reopened, referral and surgery to remove the infected mesh. This progressive course of care tracked symptom progression and adhered to the standard of care at each decision point.

Applying Self v. Crum, the panel concluded that a provider who orders treatment consistent with presented symptoms and monitors the condition does not exhibit the culpable mental state required by Farmer. Even negligence is insufficient; only an “extraordinary degree of neglect” may approach the constitutional threshold. Here, uncontested expert testimony repeatedly placed the care within the standard of care. On such a record, no reasonable jury could infer that Dr. Johnson knew of and disregarded a substantial risk of serious harm.

2) Summary Judgment Burden and the Role of Uncontested Expert Testimony

The panel reinforced that, even for pro se litigants, it is not enough to rest on allegations. When defendants present affirmative evidence—especially expert opinions—negating an essential element (here, the subjective deliberate indifference component), the nonmovant must adduce specific contrary facts to create a genuine dispute. Mr. Potter did not contest the defense expert’s standard-of-care opinions. Under Sealock, Estate of Hurtado, and Pelt/Trainor, that silence is dispositive at summary judgment: the court must credit the uncontroverted evidence and cannot permit a case to go to trial on mere assertions.

3) Monell Liability Requires a Predicate Constitutional Violation

Mr. Potter’s claim against YesCare asserted that a corporate policy drove the alleged delay in surgery. The Tenth Circuit did not reach whether such a policy existed because Crowson and Trigalet foreclose Monell liability absent an underlying constitutional violation by an official. Having held that Dr. Johnson did not act with deliberate indifference, the panel necessarily concluded that YesCare could not be liable under Monell. This aligns with longstanding doctrine that Monell is not a vehicle for respondeat superior; policy or custom must cause a proven constitutional wrong.

Impact and Significance

Although nonprecedential, this decision has practical and persuasive significance in several respects:

Eighth Amendment delay-of-treatment claims: The opinion underscores that delays in surgery are not unconstitutional per se. Where the record shows standard-of-care management, symptom monitoring, and a reasoned escalation to surgery, the subjective deliberate indifference element will likely fail.
Centrality of expert evidence: Defense use of expert declarations to establish standard of care can be outcome-determinative if unrefuted. Plaintiffs should anticipate the need for contrary expert testimony or concrete medical evidence showing that providers knew of and ignored a substantial risk (for example, disregarding positive infection markers, specialist recommendations, or emergent symptoms).
Documentation by providers: The court’s reliance on contemporaneous records and stepwise interventions suggests that careful documentation of assessment, rationale, and escalation materially reduces constitutional exposure.
Monell pleading and proof: The decision reinforces that plaintiffs cannot circumvent the lack of an individual constitutional violation by pointing to policies. A predicate violation and causation are prerequisites; proof that a policy caused a constitutional wrong is indispensable.
Pro se litigation realities: Liberal construction of filings does not relieve pro se parties of evidentiary burdens at summary judgment. Specific facts, not allegations, are required to reach a jury.

Complex Concepts Simplified

Deliberate indifference: Not the same as medical malpractice. It requires proof that a provider actually knew of a serious risk to the inmate’s health and consciously disregarded it. Thoughtful, even if imperfect, medical judgment generally does not qualify.
Objective vs. subjective components:
- Objective: The medical need must be serious (diagnosed as requiring treatment or obvious to a layperson).
- Subjective: The official must actually perceive a substantial risk and ignore it.
Standard of care: The level of prudence and skill ordinary medical providers exercise. Evidence that treatment met the standard of care tends to rebut claims of deliberate indifference.
Summary judgment: A procedure to decide cases without trial when there’s no genuine dispute about key facts. The moving party can win by showing the other side lacks evidence on an essential element. The nonmoving party must respond with specific admissible evidence, not just assertions.
Monell liability: A pathway to sue municipalities or private entities performing government functions under § 1983, but only if an official policy or custom caused a constitutional violation. No violation by an individual, no Monell liability.
Liberal construction for pro se litigants: Courts read filings generously for those without lawyers, but that leniency does not replace the need for actual proof at summary judgment.

Conclusion

Potter v. Johnson reinforces two bedrock principles in § 1983 prison medical care litigation. First, deliberate indifference demands disregard of a known substantial risk—not simply a disagreement over medical judgment or a timeline that, in hindsight, included non-emergent intervals. Where providers document progressive, standard-of-care treatment and escalate appropriately, the subjective component is not met. Second, Monell liability cannot stand without a predicate constitutional violation; allegations of corporate policy do not substitute for proof that a policy caused an actual constitutional wrong.

Practically, the decision signals that plaintiffs alleging delayed surgery must marshal evidence—often expert opinion—showing that providers knew earlier that surgery was medically necessary or that non-surgical management posed a substantial risk, and nevertheless ignored that risk. For correctional healthcare providers and their employers, the opinion underscores the protective value of staged, documented care aligned with clinical indicators. Even as a nonprecedential decision, Potter provides persuasive guidance that will likely shape summary judgment practice in Eighth Amendment medical cases across the Tenth Circuit.