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

                           FOR THE TENTH CIRCUIT                          November 12, 2015
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
WILEY TOLER,

      Plaintiff - Appellee,

v.                                                        No. 15-6079
                                                   (D.C. No. 5:13-CV-01025-F)
JEFFREY TROUTT, D.O.,                                     (W.D. Okla.)

      Defendant - Appellant,

and

KATRYNA FRECH, in her official and
individual capacity,

      Defendant.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
                _________________________________

      Wiley Toler filed a civil rights suit under 42 U.S.C. § 1983 against personnel

at the James Crabtree Correctional Center (“Crabtree”) alleging that his medical

treatment for back pain violated his constitutional rights. The district court denied


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
summary judgment to defendants Dr. Jeffrey Troutt, Crabtree’s chief medical officer,

and Katryna Frech, R.N. They filed this interlocutory appeal based on qualified

immunity. “[W]e have jurisdiction to review (1) whether the facts that the district

court ruled a reasonable jury could find would suffice to show a legal violation, or

(2) whether that law was clearly established at the time of the alleged violation.”

Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015) (internal quotation marks

omitted). Reviewing the latter, we reverse.

                                           I

      Plaintiff Wiley Toler is incarcerated at the James Crabtree Correctional Center

(Crabtree) in Oklahoma. He has been under the medical care of Dr. Troutt for

chronic lower back pain since April 2013, when he was transferred to Crabtree from

the privately operated Lawton Correctional Facility (Lawton). Medical records show

that, at the time of his transfer, Mr. Toler had a prescription through July 2013 for

Neurontin at 800 mg. Upon transfer, Dr. Troutt terminated Mr. Toler’s prescription

for Neurontin and prescribed Naprosyn to treat his symptoms. In May 2013,

Mr. Toler was noncompliant with Dr. Troutt’s instructions regarding his medication

and he apprised Dr. Troutt that only Neurontin worked for his back pain; Dr. Troutt

discontinued Naprosyn and began a trial of an SSRI.

      In June 2013, Mr. Toler underwent an MRI that revealed degenerative disc

disease and neuroforaminal narrowing at multiple levels. Dr. Troutt requested a

neurological consult for recommendations with regard to these findings. In

November 2013, two neurosurgeons consulted and diagnosed Mr. Toler with lumbar

                                           2
radiculopathy. They recommended Mr. Toler take Neurontin three times daily and

increased as necessary for pain. A month later, Dr. Troutt re-prescribed Naprosyn

and Elavil for Mr. Toler’s back pain. At Dr. Troutt’s request, the neurosurgeons

examined Mr. Toler again in April 2014; they again recommended Neurontin for

nerve pain and again Dr. Troutt prescribed a different drug. Mr. Toler was

eventually prescribed Neurontin in September 2014 by Dr. Bruce Meyer when

Dr. Troutt was on leave.

      Mr. Toler brought suit under § 1983 for violations of his Eighth Amendment

rights. He alleged that the appellants were deliberately indifferent to his serious

medical needs in refusing to prescribe Neurontin even though it was previously

prescribed at Lawton and was recommended by the neurosurgeons. The magistrate

judge recommended denying the appellants’ summary judgment motion, devoting the

bulk of his analysis to concluding that Dr. Troutt was deliberately indifferent.

Specifically, the magistrate judge found that Mr. Toler’s back pain was an

objectively serious medical condition and that a question of fact existed as to whether

a prison doctor’s disregard of treatment prescribed by private doctors can

subjectively constitute a purposeful disregard of substantial risk. Aplt. App., Vol. 6

at 543, 545–46 (citing Alloway v. Hodge, 72 F. App’x 812 (10th Cir. 2003)). The

magistrate judge determined the law was clearly established in one sentence —

“There is little doubt that deliberate indifference to an inmate’s serious medical need

is a clearly established constitutional right.” Aplt. App., Vol. 6 at 547 (alterations

omitted). The district judge adopted these findings.

                                            3
                                            II

      “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) (internal quotation marks omitted).

“Qualified immunity is an affirmative defense to a section 1983 action, providing

immunity from suit from the outset.” DeSpain v. Uphoff, 264 F.3d 965, 971

(10th Cir. 2001) (internal quotation marks omitted). We review the denial of

qualified immunity de novo, viewing the record in the light most favorable to the

non-moving party. York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008).

      To survive summary judgment after a defendant has claimed qualified

immunity, the plaintiff must demonstrate both: “(1) that the defendant’s actions

violated a constitutional or statutory right and (2) that the right was clearly

established at the time of the defendant’s unlawful conduct.” Serna v. Colo. Dep’t of

Corrs., 455 F.3d 1146, 1150 (10th Cir. 2006) (internal quotation marks omitted).

The Supreme Court has held that the federal district and appellate courts have

discretion to determine which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case.

Pearson, 555 U.S. at 236.

      The Eighth Amendment prohibits the infliction of cruel and unusual

punishment. U.S. Const. amend. VIII. Prison officials violate the ban on cruel and

unusual punishment if their “deliberate indifference to serious medical needs of

                                            4
prisoners constitutes the unnecessary and wanton infliction of pain.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks omitted). But

“inadvertent failure to provide adequate medical care” is not enough, nor does “a

complaint that a physician has been negligent in diagnosing or treating a medical

condition . . . state a valid claim of medical mistreatment under the Eighth

Amendment.” Id. at 105–06. The Supreme Court has established a two-pronged

inquiry, including both subjective and objective components. Under the objective

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

deprivation of constitutional dimension and, under the subjective inquiry, the prison

official must have a “sufficiently culpable state of mind.” Farmer v. Brennan,

511 U.S. 825, 834 (1994) (internal quotation marks omitted). A prison official

cannot be liable “unless the official knows of and disregards 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 he must

also draw the inference.” Id. at 837.

                                           III

      We disagree with the district court’s framing of what had to be clearly

established. In stating that deliberate indifference to an inmate’s medical needs is a

clearly established constitutional violation, Aplt. App., Vol. 6 at 547, the district

court’s parameters were overly broad. If such a general statement of the

constitutional violation that must be clearly established were sufficient, qualified

immunity would almost never be granted. In this case, the proper inquiry is whether

                                            5
it was clearly established that Dr. Troutt’s conduct — prescribing a medication in

treating Mr. Toler’s medical condition that was different than the medication

recommended by consulting physicians — was deliberately indifferent to Mr. Toler’s

medical needs. Not only was this not clearly established, but the law was clearly

established to the contrary.

      A difference of opinion with medical staff about treatment is not actionable

under the Eighth Amendment, nor is a disagreement among medical experts. See

Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993); Supre v. Ricketts, 792 F.2d

958, 962–63 (10th Cir. 1986). Where 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.” Self v.

Crum, 439 F.3d 1227, 1232–33 (10th Cir. 2006). Thus, “the subjective component is

not satisfied, absent an extraordinary degree of neglect, where a doctor merely

exercises his considered medical judgment.” Id. at 1232; see also Ledoux v. Davies,

961 F.2d 1536, 1537 (10th Cir. 1992) (involving a dispute as to what medications

were prescribed and noting that matters of medical judgment do not give rise to a

§ 1983 claim).

      Dr. Troutt ordered treatment “consistent with the symptoms presented and then

continued to monitor” Mr. Toler’s condition, which was fully compliant with our

clearly established precedent. See Self, 439 F.3d at 1232. Alloway, which the

magistrate judge relied on to establish the predicate constitutional violation, offers no

support for a clearly-established-law argument. In addition to being a single

                                            6
nonprecedential decision of a panel of our court, it is distinguishable from the

situation here because it involved a complete denial of medication, as opposed to the

substitution of alternative medicines as in this case, and applied a forgiving abuse of

discretion standard to the granting of injunctive relief. 72 F. App’x at 813, 817–18.

Even if we were to look to Alloway to inform whether the law was clearly

established, see Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012) (suggesting

that unpublished decisions need not be ignored entirely), there are other more

factually on-point nonprecedential decisions that cut against Mr. Toler’s position on

that point, see, e.g., Todd v. Bigelow, 497 F. App’x 839, 841–42 (10th Cir. 2012)

(finding no deliberate indifference when an inmate’s Neurontin prescription was

changed to Elavil).

      The bottom line is that Mr. Toler identifies no decision clearly establishing the

proposition that exercising medical judgment in prescribing one course of treatment

over another constitutes deliberate indifference to a serious medical need. He cannot

identify such precedent because our controlling precedent clearly establishes the law

to the contrary. Accordingly, even if it could be said that Dr. Troutt was negligent in

disregarding the advice of experts he sought out (which we do not decide), the record

and the case law do not support the argument that he was deliberately indifferent to

Mr. Toler’s medical needs in his treatment decisions. See Self, 439 F.3d at 1233 (“In

the end, the negligent failure to provide adequate medical care, even one constituting

medical malpractice, does not give rise to a constitutional violation.” (internal



                                           7
quotation marks omitted)). We therefore reverse and remand with instructions to

enter summary judgment in favor of Dr. Troutt and Nurse Frech.


                                         Entered for the Court


                                         Jerome A. Holmes
                                         Circuit Judge




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