Hurd v. Campbell

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 22, 2025
• Docket: 24-1446
• Status: Unpublished

Opinion

Appellate Case: 24-1446 Document: 20-1 Date Filed: 10/22/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 22, 2025 _________________________________ Christopher M. Wolpert Clerk of Court KIRK CORNELL HURD,

Plaintiff - Appellant,

v. No. 24-1446 (D.C. No. 1:22-CV-01523-RM-STV) ZACHARY CAMPBELL, (D. Colo.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, EID, and CARSON, Circuit Judges. _________________________________

Kirk Hurd, a Colorado state prisoner proceeding pro se, appeals the district court’s

dismissal of his civil-rights complaint. He alleges that the medical care he received from

Zachary Campbell, a nurse practitioner, amounted to deliberate indifference under the

Eighth Amendment.

To establish a deliberate-indifference claim, a prisoner must adequately allege two

elements: an objective component and a subjective component. “Under the objective

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-1446 Document: 20-1 Date Filed: 10/22/2025 Page: 2

inquiry, the alleged deprivation must be sufficiently serious to constitute a deprivation of

constitutional dimension.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (internal

quotation marks omitted). To satisfy the subjective component, the defendant “must

consciously disregard a substantial risk of serious harm.” Id. at 1231 (internal quotation

marks omitted). Because Hurd failed to plausibly plead the subjective component, we

affirm.

In June 2022 Hurd filed his original complaint in the United States District Court

for the District of Colorado. After filing several amended complaints, in March 2024 he

filed his operative complaint, which sought relief against Campbell under 42 U.S.C.

§ 1983 for an alleged Eighth Amendment violation. 1 In particular, he alleged that after he

had his gastronomy tube removed while in state custody, Campbell failed to properly

treat the resulting complications.

Campbell moved to dismiss under Fed. R. Civ. P. 12(b)(6). He argued that the

complaint’s factual allegations did not establish an Eighth Amendment violation, and that

he was therefore entitled to qualified immunity.

After comprehensively reviewing the complaint, the magistrate judge

recommended that the motion be granted. He determined that the complaint’s factual

Hurd also asserted a second claim under 42 U.S.C. § 1997e(e). That 1

provision, titled “Limitation on recovery,” provides that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act[.]” Id. § 1997e(e). It does not provide a cause of action. See Hoever v. Marks, 993 F.3d 1353, 1358, 1360 (11th Cir. 2021) (en banc) (explaining that “§ 1997e(e) limits a prisoner . . . from recovering damages” in certain circumstances).

2 Appellate Case: 24-1446 Document: 20-1 Date Filed: 10/22/2025 Page: 3

allegations were insufficient to show deliberate indifference—that is, they failed to

plausibly support the claim that Campbell knowingly disregarded an excessive risk to

Hurd’s serious medical needs. Because the complaint did not establish an Eighth

Amendment violation, the magistrate judge concluded that Campbell was entitled to

dismissal under the doctrine of qualified immunity. Although Hurd objected to the

recommendation, the district court overruled it, finding that it lacked “any specific

assertions as to how the magistrate judge erred” and “fail[ed] to meaningfully address”

the magistrate judge’s conclusions. App. at 305. The court accepted the recommendation

and dismissed the complaint without prejudice.

“We review a Rule 12(b)(6) dismissal de novo, accepting as true all well-

pleaded factual allegations in the complaint and viewing them in the light most

favorable to the plaintiff.” Commonwealth Prop. Advocs., LLC v. Mortg. Elec.

Registration Sys., Inc., 680 F.3d 1194, 1201 (10th Cir. 2011). “When reviewing a

12(b)(6) dismissal, we must determine whether the complaint sufficiently alleges

facts supporting all the elements necessary to establish an entitlement to relief under

the legal theory proposed.” Id. at 1201–02 (internal quotation marks omitted).

Hurd’s complaint does not clear this bar. We need not repeat the thorough

exploration of the complaint by the magistrate judge. Assuming it adequately pleaded

the objective component of a deliberate-indifference claim, it did not plausibly plead

the subjective component. Accepting the well-pleaded allegations as true, as the

magistrate judge did, Campbell provided Hurd with regular medical care, followed

up with other providers, and requested a CT scan on his behalf. Campbell did not

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“know[] of and disregard[] an excessive risk” to Hurd’s safety. Sealock v. Colorado,

218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation marks omitted). Hurd’s

disagreement with Campbell’s course of treatment is insufficient to satisfy the

subjective component of his deliberate-indifference claim. See Perkins v. Kansas

Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (“[A] prisoner who merely

disagrees with a diagnosis or a prescribed course of treatment does not state a

constitutional violation.”); see Self, 439 F.3d at 1232–33 (“[W]here a doctor orders

treatment consistent with the symptoms presented and then continues to monitor the

patient’s condition, an inference of deliberate indifference is unwarranted under our

case law.”). Accordingly, the grant of qualified immunity was proper. See Montoya v.

Vigil, 898 F.3d 1056, 1064 (10th Cir. 2018) (“[I]f the plaintiff failed to state a claim

under Rule 12(b)(6), the government [officer] would also be entitled to qualified

immunity.”).

We AFFIRM the district court’s dismissal order. We GRANT Hurd’s motion

for leave to proceed in forma pauperis.

Entered for the Court

Harris L Hartz Circuit Judge