NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0287n.06

                                         Case No. 18-2335

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                      FILED
                                                                                May 21, 2020
NATHAN K. LUMBARD,                                    )
                                                                            DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )       ON APPEAL FROM THE UNITED
v.                                                    )       STATES DISTRICT COURT FOR
                                                      )       THE WESTERN DISTRICT OF
MARK LILLYWHITE, Undersheriff; TIM                    )       MICHIGAN
SCHULER, Captain; PATTY KANE, N.P.,                   )
                                                      )
       Defendants-Appellants.                         )




       BEFORE: BOGGS, GRIFFIN, and READLER, Circuit Judges.

       CHAD A. READLER, Circuit Judge. While being held in a Michigan county jail,

Nathan Lumbard alleges that he complained of vision and motor issues, only to have the jail staff

punish him for making those complaints and unduly delay any treatment. Lumbard was later

diagnosed with multiple sclerosis, a chronic neurological degenerative disease. He then filed a pro

se § 1983 complaint, claiming deliberate indifference and retaliation by officials at the jail. The

district court determined that Lumbard’s allegations were sufficient to survive motions for

judgment on the pleadings and summary judgment as to some of those officials, but that Lumbard’s

claims against other officials otherwise fell short. Seeing no error in the district-court proceedings,

we AFFIRM.
Case No. 18-2335, Lumbard v. Kane


                                      I.       BACKGROUND

        Lumbard alleges that while he was serving a two-year federal sentence for aggravated

identity theft, he began to experience issues with his eyesight. Lumbard was referred to a specialist

but was transferred to a county jail in Indiana to face state charges before he could be seen. While

incarcerated in Indiana, Lumbard claims to have experienced similar vision issues, but chose not

to report them.

        A month later, Lumbard was transferred to a county jail in St. Joseph, Michigan to face

additional charges there. Lumbard alleges that he continued to experience vision issues. But the

parties diverge on what occurred next. Nurse Practitioner Patty Kane claims that upon Lumbard’s

arrival at the St. Joseph jail, he reported seasonal allergies and anxiety, but no disabilities or special

needs. Two weeks later, Kane claims, Lumbard reported anxiety and a toe infection but denied

having any family history of illness. Kane noted that Lumbard wore glasses but appeared to be in

normal health. Lumbard, however, claims that he told Kane he had been experiencing abrupt

deterioration in his eyesight. Lumbard says he then gave a detailed explanation of his condition,

which he says Kane did not document.

        Roughly five months later, Lumbard was permitted to visit an ophthalmologist. Again, the

parties diverge as to what led up to that visit. According to Kane, when Lumbard informed her of

his vision problems by an undated letter, she scheduled an appointment the next day. But Lumbard

claims that from the time he arrived at the St. Joseph facility, he made daily requests to see a

doctor, and that Kane scheduled the ophthalmologist appointment only after repeated calls by

Lumbard’s mother and counsel.              Both parties agree, however, that the ophthalmologist

recommended that Lumbard see another doctor.




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Case No. 18-2335, Lumbard v. Kane


       Sometime later, Lumbard complained of experiencing a “weird gait.” Upon examination,

Kane noted that Lumbard’s “neuro” was normal. Around this time Lumbard informed Kane that

his sister had multiple sclerosis, a chronic nerve disease. And once again, the parties’ versions of

the story diverge. Kane claims to have moved Lumbard to a holding cell to better observe his

motor function. Lumbard frames the act as a vengeful one, describing the “holding cell’ as the

“drunk tank” of the facility, a crowded cell where many inmates end up sleeping on the floor.

Lumbard alleges that Kane told him, “since you want to play sick and have your Mother call up

here, you can go upfront. I’m not going to have a worried mother on my hands.” Once in the

holding cell, Lumbard claims to have initiated a five-day hunger strike, to gain access to a doctor.

       Lumbard filed two grievances in January to complain about being placed in the holding

cell, and the delay in seeing a doctor. Captain Tim Schuler responded to Lumbard’s first grievance.

He explained in writing that he and Undersheriff Mark Lillywhite made the decision to place

Lumbard in the holding cell “for officers to keep an eye on [him] as [he] ha[d] some medical needs

and safety.” In his response to the second grievance, Schuler wrote to Lumbard informing him

that per a conversation between Schuler and Kane weeks earlier, Kane was trying to schedule a

specialist appointment, which does “not happen overnight.”

       Eventually, Lumbard was permitted to see doctors. Lumbard was first observed by a jail

doctor, who concluded that Lumbard was acting symptomatically only when he thought others

were watching. Lumbard then met with a neurologist, who concluded that Lumbard’s movements

appeared to be normal and that his gait issues may have been embellished. But after learning about

Lumbard’s family history of multiple sclerosis, the neurologist recommended that Lumbard

receive a brain MRI without contrast.




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Case No. 18-2335, Lumbard v. Kane


       The MRI revealed certain abnormalities in Lumbard’s brain consistent with multiple

sclerosis. Medical staff at the hospital recommended a second MRI, this time with contrast.

Before that procedure could take place, however, Lumbard was transferred to federal prison. In

conjunction with the transfer, Kane explained the MRI results to Lumbard and informed him that

she would send his medical records to the federal prison’s medical unit. Months later while in

federal prison, Lumbard was diagnosed with multiple sclerosis.

       Believing that his medical treatment fell below constitutional guarantees, Lumbard filed a

pro se 42 U.S.C. § 1983 action against various law-enforcement officials and agencies, in addition

to medical providers. Lumbard v. St. Joseph Cty. Sheriff Dep’t, No. 1:15-CV-1013, 

(W.D. Mich. Oct. 11, 2018). Many defendants successfully moved to dismiss the case

on the pleadings or otherwise prevailed at summary judgment through theories of sovereign

immunity, insufficient involvement with Lumbard’s alleged constitutional violations, or

Lumbard’s failure to allege institutional policies as required by Monell v. Dep’t of Soc. Servs., 

(1978). With respect to Kane, however, the district court found a genuine factual dispute

over whether she was deliberately indifferent to Lumbard’s vision issues and denied her motion

for summary judgment. Lumbard, 

, at *2. The district court also denied Kane,

Schuler, and Lillywhite’s motion for judgment on the pleadings on Lumbard’s retaliation claim,

concluding that Lumbard had alleged a viable claim based upon the officials’ decision to place

Lumbard in a holding cell allegedly as punishment for earlier complaints.

and

Lillywhite timely appealed.

                                        II.    ANALYSIS

       Legal Standard. We review a denial of qualified immunity de novo. Brown v. Lewis, 

, 411 (6th Cir. 2015). In reviewing whether Kane’s motion for summary judgment was


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Case No. 18-2335, Lumbard v. Kane


properly denied, we “view all evidence, and draw all reasonable inferences, in the light most

favorable” to Lumbard.

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 587 (1986)). Likewise, as to the denial of Defendants’ motion for judgment on the

pleadings, we “construe the complaint in the light most favorable to the plaintiff” and “accept all

of the complaint’s factual allegations as true.” Hayward v. Cleveland Clinic Found., 

, 608 (6th Cir. 2014) (internal citations and quotations omitted).

       Perhaps through no fault of any party or the district court, the record is a bit jumbled as to

the precise framing of Defendants’ arguments. Acting pro se, Lumbard’s allegations in his

complaint understandably are not as clear as they might otherwise be. In their responsive motion

for summary judgment or alternatively for judgment on the pleadings, which was initially heard

by the magistrate judge, Defendants made mention of their qualified immunity from suit, but

otherwise only modestly developed any arguments in a qualified-immunity framework, as opposed

to a more broad-based attack on Lumbard’s complaint. The magistrate judge’s ensuing report and

recommendation agreed with Defendants, but it too did not employ a detailed legal analysis of

qualified immunity. Nor does the district court’s order, which disagreed with the report and

recommendation in certain respects. Defendants’ brief on appeal then returns to a more customary

qualified-immunity framework in articulating its arguments.

       Against this somewhat fragmented backdrop, we will assess this appeal as one challenging

the denial of Defendants’ assertion of qualified immunity to Lumbard’s § 1983 claims. To

overcome that assertion, Lumbard must establish that the facts, viewed in the light most favorable

to him, “show that a constitutional violation occurred,” and that the “violation involved a clearly

established constitutional right of which a reasonable person would have known.” Sample v.

Bailey, 

, 695–96 (6th Cir. 2005) (citation omitted). By and large, the parties seem to


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Case No. 18-2335, Lumbard v. Kane


agree on the governing legal standards underlying Lumbard’s claims. They disagree, however,

over the viability of Lumbard’s claims when measured against those standards.                That is,

Defendants largely do not dispute that Lumbard’s assertions, if true, would reveal a violation of

his clearly established constitutional rights. But they vigorously dispute his version of the facts,

and they likewise raise procedural objections.

       Deliberate Indifference. The Eighth Amendment’s prohibition against “cruel and unusual

punishment” forbids prison officials from “unnecessarily and wantonly inflicting pain” on an

inmate by acting with “deliberate indifference” toward the inmate’s serious medical needs.

Blackmore v. Kalamazoo Cty., 

, 895 (6th Cir. 2004) (quoting Estelle v. Gamble, 

, 104 (1976)); see U.S. Const. amend. VIII. A deliberate-indifference claim is cognizable

in a suit brought under § 1983. 

(citing Roberts v. City of Troy, 

, 723 (6th Cir. 1985)).

       Deliberate-indifference claims have both an objective and subjective component.

v. Brennan, 

, 834 (1994)). As an objective matter, a plaintiff must

show that he is incarcerated “under conditions posing a substantial risk of serious harm.”

, 511 U.S. at 834). And as a subjective matter, a plaintiff must show that the liable official

had a “sufficiently culpable state of mind in denying medical care.”

v. Bargery,

, 867 (6th Cir. 2000)).

       1. Starting with the objective element of a deliberate-indifference claim, one way a plaintiff

can establish that the conditions in question posed a substantial risk of serious harm is to

demonstrate conditions that reflect “an obvious need for medical care that laymen would readily

discern as requiring prompt medical attention by competent health care providers.”

In

defining an “obvious need,” we have moved with understandable caution, as an excessively broad


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Case No. 18-2335, Lumbard v. Kane


definition would transform deliberate-indifference suits into what they are not, namely, negligence

suits. 

(distinguishing between deliberate indifference and negligence, as

the Eighth Amendment prohibits only the former); see also Graham ex rel. Estate of Graham v.

Cty. of Washtenaw, 

, 385 (6th Cir. 2004) (observing that if the prisoner received some

medical attention but disputes its adequacy, the courts are “generally reluctant to second guess

medical judgments and to constitutionalize claims which sound in state tort law” (citation

omitted)). But our precedent, with some irony, has not always made it entirely obvious how to

identify situations in which there is “an obvious need for medical care.”

       We sometimes read the term to require that the medical need be easily detectable by a

layman from visual inspection. See, e.g., Phillips v. Roane Cty., 

, 540 (6th Cir. 2008)

(holding that a medical need was objectively obvious where prisoner had been found unconscious,

without breath or pulse, two weeks before his death, and where an inmate testified that the

prisoner’s “extremely sick” condition was “obvious to normal persons”). But in other cases, we

have looked not to what was obviously detectable to the eye but instead to whether a layman, made

aware of an individual’s actual medical condition, would consider the condition to be obviously

medically serious; that is, even if the layman cannot see the medical need, if informed of the true

medical situation, the layman would deem the need for medical attention clear. See, e.g., Rouster

v. Cty. of Saginaw, 

, 446, 451 (6th Cir. 2014) (holding that a prisoner who died from

a perforated duodenum exhibited an “objectively serious need for medical treatment,” even though

his symptoms appeared to the medical staff at the time to be consistent with alcohol withdrawal);

Johnson v. Karnes, 

, 874 (6th Cir. 2005) (holding that prisoner’s severed tendon was

a “quite obvious” medical need, since “any lay person would realize to be serious,” even though

the condition was not visually obvious). Addressing this division of authority, we have reasoned


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Case No. 18-2335, Lumbard v. Kane


that the latter line of cases was on stronger ground, because relying on a test that turns on a

layman’s actual observation threatens to merge what is an objective test into the subjective

component of deliberate indifference. Gunther v. Castineta, 561 F. App’x 497, 500 (6th Cir.

2014).

         Against this backdrop, Lumbard’s multiple sclerosis certainly qualifies as an “obvious”

serious medical need. Notified that someone was suffering from multiple sclerosis, an objective

layman would deem the condition serious. Among other things, the condition can cause serious

and permanent nerve damage that can lead to permanent disabilities. See id.; see also Loren A.

Rolek, Multiple Sclerosis: It’s Not the Disease You Thought It Was, 1 Clinical Medicine and

Research 57, 58 (2003). To be sure, multiple sclerosis manifests itself differently in different

people, sometimes in subtle ways, and at the time Lumbard was seeking medical help, he did not

know of his underlying condition. But a plaintiff need not know he is experiencing a serious

medical condition for the condition to satisfy the objective component of deliberate indifference.

See, e.g., 

, Gibson v. Moskowitz, 

, 662 (6th Cir. 2008)

(holding that it was objectively medically serious when a mentally disturbed inmate was treated

with medication that impaired his ability to regulate temperature while he was placed into a hot

observation room).

         2. Having established that Lumbard, as an objective matter, was incarcerated under

conditions posing a substantial risk of harm, we must consider whether his symptoms were the

kind that, if deliberately ignored, would reveal a “sufficiently culpable state of mind” by the

relevant prison official “in denying medical care.” 

(quoting 

). This subjective component requires more than “mere negligence,” but does not

require that the prison official have knowledge or purpose that her act or omission would harm


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Case No. 18-2335, Lumbard v. Kane


Lumbard.

(quoting 

). Rather, “the official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” 

.

       Lumbard’s undiagnosed multiple sclerosis, by itself, would not seem to satisfy the

subjective component of deliberate indifference. Lumbard does not allege that any Defendant was

aware of facts from which one could fairly infer a multiple-sclerosis diagnosis specifically, let

alone that an inference was actually drawn. Because the condition manifests differently in

different people, occasionally through subtle symptoms, it can be challenging to diagnose. 

(“[Multiple sclerosis] can be among the most difficult of all diseases to diagnose

because of the bewildering number of symptoms it causes and the multiple ways in which they can

present.”). Only with the benefit of hindsight could one deem Lumbard’s then-undiagnosed

multiple sclerosis “obvious” and thus requiring treatment. 

(noting that

the deliberate-indifference “standard is not whether there is something easy that the doctors, with

the benefit of hindsight, could have done . . . We must judge their actions based on the information

available to them at the time”) (internal quotations and citations omitted).

       That said, Lumbard did have two specific complained-of symptoms—a deterioration in

eyesight, and a “weird gait.” Even if one could not fairly infer that those conditions reflected

multiple sclerosis specifically, they are nonetheless reflective of a serious condition in their own

right. That is perhaps less so as to Lumbard’s alleged “weird gait.” One can fairly debate whether

his gait was an “obviously severe” symptom, given the many more pedestrian reasons why

someone might have a hitch in their step.

       But Lumbard’s alleged deterioration in eyesight, especially when interpreted to be abrupt,

would be a more obvious concern. See Morris v. Corr. Med. Servs., Inc., No. 2:07-CV-10578,


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Case No. 18-2335, Lumbard v. Kane

, at *3 (E.D. Mich. Nov. 20, 2012) (holding that delaying a cataract extraction

for four years created a genuine issue of material fact over whether the removal of the cataract was

a “serious medical need”). Lumbard alleged that his deterioration in eyesight was “abrupt,”

“blurred” his vision, and was accompanied by “double vision” and “headaches.” According to

Lumbard, he informed Kane about his vision issues upon arriving at the jail and frequently brought

the issue to her attention thereafter, yet Kane deliberately failed to document his complaints.

       Kane, in fact, largely does not contest the conclusion that Lumbard’s claims, if true, reflect

a violation of clearly established constitutional law. Instead, she responds that Lumbard did not

notify her of his vision issues until he had been at the jail for many weeks, and that a visit with the

ophthalmologist was scheduled soon thereafter. Appellant Br. at 43–45. But in this posture, our

interlocutory jurisdiction does not extend to instances where defendants “merely quibble with the

district court’s reading of the factual record.” Leary v. Livingston Cty., 

, 441 (6th

Cir. 2008). Rather, our interlocutory jurisdiction extends to the legal question of whether “the

undisputed facts or the evidence viewed in the light most favorable to the plaintiff fail to establish

a . . . violation of clear constitutional law.” Estate of Carter v. City of Detroit, 

, 309

(6th Cir. 2005) (citation omitted).

       True, despite this general practice, we will sometimes engage a district court’s

determination of a factual dispute when the record shows that determination to be “blatantly and

demonstrably false.” Bishop v. Hackel, 

, 769 (6th Cir. 2011). Kane, however, has

not met that high bar. She argues that the record, including the medical screening form, medical

intake form, and an undated letter, implies that Lumbard did not mention his vision issue to her

until he had been at the facility for five months. But none of those documents demonstrate that

Lumbard’s version of events in his complaint and also in his declaration, which he signed under


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Case No. 18-2335, Lumbard v. Kane


the penalty of perjury, see 18 U.S.C. § 1621, that he immediately and consistently complained to

Kane about his vision issues and that she nonetheless failed to document his complaints, is so

“blatantly contradicted by the record . . . that no reasonable jury could believe it.” Scott v. Harris,

, 380 (2007); see also Smith v. Stoneburner, 

, 930 (6th Cir. 2013)

(characterizing parties’ conflicting stories as “the epitome of a triable issue of fact, one over which

our authority recedes and the jury’s takes over”) (internal citations omitted). At a trial, of course,

Lumbard would still have to convince a jury that his version is correct. And Kane, were she to

lose at trial, would have another opportunity for appeal. For today’s purposes, however, it is

enough to say that we cannot conclude that Lumbard’s version is so incorrect that his claim fails

against Kane’s assertion of qualified immunity.

       Nor do we find dispositive Kane’s contention that Lumbard’s deliberate-indifference claim

should be barred because his declaration was submitted in response to declarations filed by other

defendants. She cites no case law for this proposition. And while it would be fair to fault Lumbard

for making Kane sift through a “645-page exhibit” to unearth Lumbard’s allegations, that does not

seem to be what happened here. Relevant allegations, in fact, appear on the first page of Lumbard’s

complaint. Accordingly, Lumbard’s deliberate-indifference claim against Kane survives summary

judgment against a claim of qualified immunity.

       The Retaliation Claim.        “A prisoner retains First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate penological objectives of the

corrections system.” Smith v. Campbell, 

, 1036 (6th Cir. 2001). To establish a First

Amendment retaliation claim, Lumbard must show 1) that he “engaged in activities protected by

the Constitution or statute”; 2) that “defendants took an adverse action that would deter a person

of ordinary firmness from continuing to engage in that conduct”; and 3) “that this adverse action


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Case No. 18-2335, Lumbard v. Kane


was taken at least in part because of the exercise of the protected conduct.”

(citing

Thaddeus–X v. Blatter, 

, 394 (6th Cir. 1999) (en banc)). Not all forms of protest,

however, are protected. If “a prisoner violates a legitimate prison regulation, he is not engaged in

‘protected conduct,’ and cannot proceed beyond step one.” 

.

       Starting with the first element, Lumbard’s alleged complaints about the lack of medical

care, including his apparent enlistment of his mother to complain, are activities protected by the

Constitution. His complaints invoked his “right[] to free speech,” specifically his right “to petition

the state for redress of grievances.” Noble v. Schmitt, 

, 162 (6th Cir. 1996) (citing

Wolfel v. Bates, 

, 933 (6th Cir. 1983)). There is no allegation that Lumbard, whether

in asking for access to a doctor or relaying his complaints to his mother, unfairly impeded prison

officials in meeting the legitimate needs of the prison.

       As to the second element of retaliation—whether Defendants took an adverse action that

would deter a “person of ordinary firmness” from protected activity—we must consider the action

taken against Lumbard in the context of prison operations. “Prisoners may be required to tolerate

more than public employees, who may be required to tolerate more than average citizens, before

an action taken against them is considered adverse.” 

. Viewing

Defendants’ actions through this calibrated lens acts to screen out “the most trivial of actions from

constitutional cognizance,” and recognizes that “certain threats or deprivations are so de minimis

that they do not rise to the level of being constitutional violations.”

which we must assume to be true in the posture of reviewing a

denied motion for judgment on the pleadings, satisfy this element as well. 

. He claims that, in response to his and his mother’s grievances, he was placed in the “drunk

tank,” a “filthy, chaotic, and overcrowded” space. Lumbard alleges that, while there, he could not


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Case No. 18-2335, Lumbard v. Kane


shower for days at a time. And he alleges that he preemptively struck a co-inhabitant because he

felt threatened. In Thaddeus-X, we held that when prison officials, in addition to other harassing

actions, place an inmate in “the area of the prison used to house mentally disturbed inmates,” that

“would likely have a strong deterrent effect” on the inmate’s protected 

–

99. While not entirely analogous, Lumbard’s alleged experience in the “drunk tank” appears

similarly unpleasant and stressful so as to rise above a de minimis deprivation.

       That brings us to the final element of a retaliation claim—whether the prison officials’

adverse action was caused by Lumbard’s protected activities. Lumbard’s retaliation claim survives

a motion for judgment on the pleadings if he alleges facts that his protected activity was “a

motivating factor” behind the adverse action.

To that end, Lumbard alleges that Kane

told him he was being moved to the holding cell because of his mother’s calls. Lumbard adds that

Kane, in a conversation with Lumbard’s counsel, insinuated that she was going to move Lumbard

out of the holding cell, but threatened to reconsider her course of action after receiving a complaint

from Lumbard’s counsel. Lumbard has thus “put forward a number of specific, nonconclusory

allegations.”

Having met all three elements, Lumbard’s retaliation claim also

survives dismissal on the pleadings.

       Here too, Defendants do not contend that Lumbard’s alleged facts, if true, would not

amount to a violation of his clearly established constitutional rights. Instead, Defendants make

two largely procedural arguments regarding Lumbard’s retaliation claim.

       Defendants first argue that the district court improperly acted as an advocate for Lumbard,

who appeared pro se, by judicially crafting this claim. For pro se litigants, we customarily take a

delicate touch in reviewing their claims. Because pro se plaintiffs are not trained in legal

technicalities, we generally read pro se complaints liberally. Wells v. Brown, 

, 594


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Case No. 18-2335, Lumbard v. Kane


(6th Cir. 1989) (citing Haines v. Kerner, 

, 520–21 (1972) (per curiam)). True, we

caution district courts not to overcorrect so as to “conjure up” unpled allegations.

And had Lumbard not pleaded a retaliation claim in any respect, as Defendants suggest,

we would not expect the district court to conjure one up for him. But that is not what occurred

here. On the second page of his eleven-page complaint, Lumbard alleges that Kane placed him in

the “drunk tank” for “playing sick” and due to his mother’s calls. While Lumbard’s complaint

more clearly makes out a claim for “deliberate indifference,” Lumbard does allege facts making

out a retaliation claim, albeit without formally characterizing those facts under the retaliation legal

rubric. That practice, albeit imperfect, strikes us as a legal hurdle that should bar a represented

party, but not a layman, from proceeding.

       That leaves us with Defendants’ remaining contention, that Lumbard forfeited his

retaliation claim by failing to object to the magistrate judge’s report. See, e.g., United States v.

Walters, 

, 949–50 (6th Cir. 1981). This, however, is a general rule of procedure,

which we may excuse in the interests of justice. Keeling v. Warden, Lebanon Corr. Inst., 

, 458 (6th Cir. 2012). Defendants did not seek summary judgment on Lumbard’s retaliation

claim, and as a result, the magistrate judge’s report did not address whether Lumbard had asserted

such a claim. We conclude that even if Lumbard’s failure to object to an issue not raised by

Defendants or the magistrate judge rises to the level of forfeiture, the interests of justice excuse

it—the district court had “plenary discretion” over the magistrate judge’s recommendations,

Mathews v. Weber, 

, 270–71 (1976), and it correctly determined that Lumbard

sufficiently made out a retaliation claim. And to the extent the district court’s holding was a

surprise to Defendants, they could have considered filing a motion for reconsideration (or




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Case No. 18-2335, Lumbard v. Kane


something like it) with the district court. W.D. Mich. L. Civ. R 7.4(a). But as things stand, we see

no error in the district court’s reading of the complaint as stating a viable retaliation claim.

                                        III.    CONCLUSION

       For these reasons, we AFFIRM the judgment of the district court.




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