                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 05-1237
ARMOND NORFLEET,
                                                Plaintiff-Appellee,
                                 v.

THOMAS WEBSTER and ALEJANDRO HADDED,
                                     Defendants-Appellants.
                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
             No. 03 C 458—David F. Hamilton, Judge.
                          ____________
   ARGUED NOVEMBER 28, 2005—DECIDED MARCH 3, 2006
                   ____________

 Before KANNE, ROVNER, and WOOD, Circuit Judges.
  KANNE, Circuit Judge. Armond Norfleet suffers from
arthritis. While incarcerated in a federal prison at Milan,
Michigan (“Milan”), Norfleet was given certain medical
treatments for his arthritis, including Naprosyn and soft-
soled shoes for his aching feet. On May 22, 2002, he was
transferred to the federal prison at Terre Haute, Indiana
(“Terre Haute”), where the medical authorities were not
as sympathetic to his joint problems. A doctor at Terre
Haute concluded the soft-soled shoes and other treat-
ments were unnecessary, and pursuant to prison policy
the drugs Norfleet had been taking for his pain were
curtailed. Norfleet sued, naming five prison officials,
claiming that they had been deliberately indifferent to his
serious medical needs in violation of the Eighth Amend-
2                                                 No. 05-1237

ment. The district court granted summary judgment to
three of the defendants, but denied it as to Dr. Thomas
Webster, Clinical Director at Terre Haute in charge of the
medical care and treatment of all inmates, and physician
assistant Alejandro Hadded, whose duties included schedul-
ing appointments for inmates to receive their prescribed
drugs. Before us is the government’s appeal of that denial.
Seeing things differently than the district court, and
agreeing with the government, we reverse.


                        I. HISTORY
  Norfleet’s history of treatment for arthritis is relevant
to the disposition of this case, so we will recite it in neces-
sary detail. In 1994 Norfleet was given a medical prescrip-
tion for soft-soled shoes, which provide more padding and
support than the standard prison-issued shoes. In that year
Norfleet also had his work classification status changed so
that he would not be required to wear steel-toed shoes,
which because of their weight would aggravate any pain
and long-term effects associated with serious arthritis.
  Medical records from 1998 indicate that Norfleet not only
had arthritic pain, but was also positive for rheumatoid
factor, an antibody in the blood that is an indication of
rheumatoid arthritis, which can be a severe and debilitating
form of arthritis. Norfleet was again examined for arthritis
while housed at Milan in 1999. X-rays were taken of his
hands, feet, and ankles, all of which were suspicious for
rheumatoid arthritis.1 Further x-rays still raised “suspi-
cions,” but this time the diagnosis was merely minimal
rheumatoid arthritis.



1
  The government has informed us, without opposition from
Norfleet, that “ ‘suspicious for’ is a medical ‘hedge’ term that
indicates a degree of uncertainty about the diagnosis.”
No. 05-1237                                                 3

  By 2001 Norfleet appeared to be getting better. New
x-rays showed improvement, and a rheumatoid factor lab
test taken on July 23, 2001, was negative for rheumatoid
arthritis. On October 13, 2001, a physician at Milan
determined that Norfleet’s “disease [was] not serious
enough to warrant soft shoes.”
  Less positive evaluations followed less than four months
later, on February 6, 2002, when Norfleet was examined
by Dr. Eugene Y. Su, a doctor outside of the prison. Dr.
Su determined that the results of an examination were
consistent with rheumatoid arthritis. The treatment plan
developed by Dr. Su included a suggested increase of
Naprosyn (a nonsteroidal, anti-inflammatory drug), and the
doctor’s opinion that Norfleet “would benefit from better
shoes with more padding/support.” On March 2, 2002, the
authorities at Milan allowed Norfleet to have soft-soled
shoes for a period of six months.
  About three months later, on May 22, 2002, Norfleet
was transferred to Terre Haute. Shortly after his arrival,
prison authorities confiscated Norfleet’s soft-soled shoes
because he did not have authorization from Terre Haute
to wear them. At about the same time, though the rec-
ord is not entirely clear on the sequence, Dr. Webster
reviewed Norfleet’s medical files. On July 18, 2002, Dr.
Webster noted in a medical record that Norfleet had a “past
[history] of rheumatoid arthritis,” “minor deformities in
toes,” and “minor RA [rheumatoid arthritis] changes in
toes.” Physician assistants at Terre Haute made similar
entries in Norfleet’s medical records, some of which can
be read as a more definitive and serious diagnosis of
Norfleet’s condition, e.g., that Norfleet “suffers from rheu-
matoid arthritis.” (emphasis added). Dr. Webster’s ultimate
determination, however, was that Norfleet had minimal
arthritis, not rheumatoid arthritis. Accordingly, Dr. Web-
ster concluded that Norfleet did not require soft-soled shoes,
which resulted in Norfleet being forced to wear the less
4                                                   No. 05-1237

comfortable prison-issued shoes. Dr. Webster also curtailed
or discontinued other medications.2
  During this time, Norfleet continued to receive Naprosyn
for his pain. In fact, on December 30, 2003, a pharmacist
stated in medical records that Norfleet was “authorized
by Dr. Webster to receive Naprosyn.” On February 12, 2003,
a number of months after the confiscation of his soft-soled
shoes, Norfleet reported to Health Services at Terre Haute
to obtain a refill of his prescribed Naprosyn. Hadded, a low-
level employee who was manning the desk at Health
Services, refused to just fill Norfleet’s prescription. Instead,
following the prison’s written medical policy, Hadded
scheduled an appointment for Norfleet thirteen days out,
which resulted in Norfleet going twelve days without his
pain medication. It is undisputed that as of January 17,
2003, Terre Haute had implemented a new policy to deal
with the abuse and possible side effects of unbroken use of
certain prescription drugs, including the Naprosyn taken by
Norfleet. The policy required that an inmate requesting a
refill of Naprosyn had to wait at least ten days for a refill,
but not more than fourteen.


2
   Norfleet emphasizes a number of facts not relied upon by
the district court. He makes note of the fact that in addition
to having his soft-soled shoes revoked, his Plaquenil prescrip-
tion and associated eye exams, and treatment at the Chronic Care
Clinic were discontinued. It is not clear how or why
Norfleet began treatment at the Chronic Care Clinic, but the
record is clear that Dr. Su’s treatment plan included a prescrip-
tion for Plaquenil, a drug used to treat arthritis. The eye exams
presumably were necessary to monitor the side effects of
Plaquenil, which include vision problems. We have considered
these facts, as well as all other properly supported facts as-
serted by Norfleet in his brief, but they do not change our
determination that the record cannot support a claim of deliberate
indifference on the part of either defendant.
No. 05-1237                                                  5

                      II. ANALYSIS
  As the district court’s ruling was on a motion for sum-
mary judgment, our review is de novo, and we construe
all disputed facts in the light most favorable to Norfleet. See
Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001)
(citations omitted). On an appeal from the government
contesting the denial of qualified immunity, we will not
second-guess the district court’s determination regarding a
dispute of fact, though we will review the district
court’s determination that a set of facts can overcome
a qualified immunity defense. Board v. Farnham, 394
F.3d 469, 476 (7th Cir. 2005) (citation omitted). The thresh-
old question concerning a qualified immunity defense is
whether there is any merit to the underlying constitutional
claim. Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004)
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
  To sustain his claim of deliberate indifference in violation
of the Eighth Amendment, Norfleet must show “that he had
a serious medical need and that a defendant was deliber-
ately indifferent to it.” Garvin, 236 F.3d at 898 (citing
Estelle v. Gamble, 429 U.S. 97 (1976)). There is no dispute
that Norfleet’s condition qualifies as a “serious medical
need,” thus the focus of this case is on deliberate indiffer-
ence. The inquiry into deliberate indifference is a subjective
one that asks whether “the prison official acted with a
sufficiently culpable state of mind.” Walker v. Benjamin,
293 F.3d 1030, 1037 (7th Cir. 2002) (citation omitted).
  A prison official has a sufficiently culpable state of mind
when the official “knew of a substantial risk of harm to
the inmate and acted or failed to act in disregard of that
risk.” Id. (citation omitted). Negligence does not meet
this standard; therefore, even admitted medical malpractice
does not give rise to a constitutional violation. Id. (“Medical
malpractice does not become a constitutional violation
merely because the victim is a prisoner.” (quoting Estelle,
6                                               No. 05-1237

429 U.S. at 106)). Accordingly, we have held that a differ-
ence of opinion among physicians on how an inmate should
be treated cannot support a finding of deliberate indiffer-
ence. Garvin, 236 F.3d at 898 (citing Estate of Cole by
Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996)). To infer
deliberate indifference on the basis of a physician’s treat-
ment decision, the decision must be so far afield of accepted
professional standards as to raise the inference that it was
not actually based on a medical judgment. See Estate of
Cole, 94 F.3d at 262 (citation omitted). “[A] factfinder may
conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious.” Walker, 293
F.3d at 1037 (quoting Farmer v. Brennan, 511 U.S. 825, 842
(1994)).
  We need not consider qualified immunity past the
determination of whether the facts taken in the light most
favorable to Norfleet show a constitutional violation. See
Riccardo, 375 F.3d at 526 (citation omitted). On the basis of
this record, no reasonable juror could find that either Dr.
Webster or Hadded were deliberately indifferent to
Norfleet’s serious medical need. As for Dr. Webster, the
facts show nothing more than a difference of opinion as
to the seriousness of Norfleet’s arthritis, which at the
very most amounts to medical malpractice. It is undisputed
that Dr. Webster reviewed Norfleet’s medical history in
making the determination that Norfleet did not need soft-
soled shoes. And one need only take a look at that history
to determine that Dr. Webster’s treatment decision was not
“such a substantial departure from accepted professional
judgment, practice, or standards as to demonstrate” a
complete abandonment of medical judgment. Estate of Cole,
94 F.3d at 262 (quotations and citation omitted).
  The medical records before Dr. Webster were that in 1994
Norfleet was prescribed soft-soled shoes and by 1998 his lab
tests and x-rays indicated rheumatoid arthritis. But by
October 2001 reviewing medical personnel had determined
No. 05-1237                                                 7

that Norfleet was better; his x-rays showed improvement,
and lab tests came up negative. The improvement was such
that a physician determined Norfleet’s “disease [was] not
serious enough to warrant soft shoes.” Things seemed to
take a turn for the worse less than four months later, when
on February 6, 2002, Dr. Su’s tests were consistent with
rheumatoid arthritis, leading him to opine that Norfleet
“would benefit from” soft-soled shoes. Thus, Dr. Webster
was presented with two differing medical opinions made
within seven months prior to his review and within four
months of each other. Furthermore, it must be noted that
these differing opinions, as well as Dr. Webster’s ultimate
determination, differed only in degree. Dr. Webster recog-
nized that Norfleet suffered from minimal arthritis pain
and accordingly prescribed medication. But after reviewing
the various opinions, Dr. Webster decided that the record
did not support an unequivocal diagnosis of rheumatoid
arthritis and therefore refused to prescribe soft-soled shoes,
and curtailed other treatments. This opinion, undisputably
based on medical records, some of which support the
challenged determination, cannot support an inference of
deliberate indifference. See Estate of Cole, 94 F.3d at 262.
   Nor can the record support a violation of the Eighth
Amendment as to Hadded, a low-level prison employee.
Remember, deliberate indifference indicates a culpable
state of mind, something akin to criminal recklessness,
which requires that the defendant be aware of and dis-
regard an excessive risk of serious harm to the inmate.
Farmer, 511 U.S. at 836-37. All Hadded did in this case was
follow the prison’s policy of requiring prisoners to wait at
least ten days before getting a refill of the pain reliever
Naprosyn, a policy that on its face was implemented to
protect inmates from harmful side effects. There is no
indication that he acted on any basis other than that policy.
Cf. Walker, 293 F.3d at 1039-40 (denying quali-
fied immunity where facts indicated that a nurse consis-
8                                                    No. 05-1237

tently refused to provide prescribed pain medication
because of her own belief that the inmate did not need it).
Hadded’s adherence to the prison policy regarding pain
relievers cannot support an inference of deliberate indiffer-
ence.3


                     III. CONCLUSION
  For the foregoing reasons, we REVERSE the ruling of the
district court and REMAND with instructions that judg-
ment be entered on behalf of Dr. Webster and Hadded.




3
  We note that Norfleet has not contended that the policy itself is
unconstitutional or otherwise unlawful.
No. 05-1237                                         9

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—3-3-06
