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

                             FOR THE TENTH CIRCUIT                       January 28, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 EMBRY JAY LOFTIS,

       Plaintiff - Appellant,

 v.
                                                            No. 19-7016
 DR. MITSI FAUBION; HEATHER                    (D.C. No. 6:17-CV-00315-RAW-SPS)
 KNIGHT, Medical Administrator;                             (E.D. Okla.)
 BRITTANY CAMPBELL, LPN, Nurse at
 MACC,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and BACHARACH, Circuit Judges.
                 _________________________________

      Embry Jay Loftis, an Oklahoma state prisoner proceeding pro se, appeals from

the district court’s order granting summary judgment in favor of Mitsi Faubion, D.O.;

Heather Knight, Medical Administrator; and nurse Brittany Campbell on his claim

under 42 U.S.C. § 1983 for violation of his Eighth Amendment rights. According to

Loftis, the defendants—employees of the Mack Alford Correctional Center


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(MACC)—acted with deliberate indifference to his serious medical needs when they

delayed referring him to an outside specialist to treat a foot injury. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                   BACKGROUND

      Before his incarceration Loftis sustained a left-foot injury from a chainsaw

accident and left-ankle injury from an accidental gunshot wound. Both injuries were

healed by the time of his incarceration. Shortly after Loftis arrived at MACC in

February 2014, he requested and was assigned to a bottom bunk because the prior

injuries had limited his ability to use his left foot normally. Loftis did not complain

about his foot again until late November 2015, when he asked to be seen by medical

services to obtain approval to receive a pair of orthopedic shoes from an outside

vendor. At an appointment in early December, Dr. Faubion began the process of

determining whether there was a medical necessity for the special footwear, which

required an x ray and permission from Knight.

      A January 2016 x ray of Loftis’s left foot showed degenerative arthritis and

spurring on his heel, but no fracture, destructive bony lesion, or instability. A nurse

told Loftis at a February 2017 appointment that even though the x ray was negative,

if he was still interested in special shoes, he should have his family email a picture of

the shoes and the warden and medical staff would decide whether they should be

approved.

      The special footwear was sent to Loftis in May 2016; but it was held by a

property officer pending the warden’s approval. Although Loftis had not yet

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received the footwear, on June 16 he submitted a request for an appointment to

discuss a referral to an orthopedic specialist for further evaluation. The next day, the

special footwear was released to Loftis. Loftis did not attend the appointment set for

June 23 to address whether he should have a specialist referral.

       At a July 8, 2016 appointment, Loftis again complained of foot pain and told

Dr. Faubion she should order weight-bearing x rays “to see the damage to the joint.”

Id., Vol. II at 18. He also renewed his request to see an outside specialist. On July

11 further x rays were taken of Loftis’s left foot; they indicated some spurring and

degenerative arthritis but were otherwise negative. Also on July 11, Loftis submitted

a request to be referred to an outside specialist, this time for an MRI of his ankle.

Knight denied Loftis’s requests on July 28 and August 22.

       In September 2016, Loftis made further requests for care but he failed to

attend three scheduled appointments concerning his foot. On September 26, at the

one appointment Loftis did attend, Dr. Faubion noted he was not wearing his special

shoes. She refilled his prescription for ibuprofen and gave him stretching exercises

for plantar fasciitis.

       On October 25, 2016, Loftis was again seen by Dr. Faubion, who scheduled

him for an examination by an orthopedic specialist at Lindsay Memorial Hospital

(LMH), which took place on November 29. Loftis returned to LMH on January 24,

2017, for further evaluation. The orthopedic specialist, Dr. Richard Greisman,

recommended that Loftis get “wide/high toe box” shoes, and return in six weeks. Id.



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at 92. Based on the recommendation, Dr. Faubion referred Loftis to receive

orthopedic shoes.

       Loftis was seen at LMH on March 7, 2017, and Dr. Greisman again

recommended using the special shoes before trying surgery. When Loftis

complained about this course of treatment, Dr. Faubion explained: “I cannot override

the orthopedic surgeon. We have to follow his course of action.” Id. at 56. At his

follow-up visit with Dr. Greisman on May 2, Loftis “opt[ed] for surgical

intervention,” which he acknowledged carried risks of “continued discomfort, . . .

persistent pain, incomplete relief, . . . [the] need for further surgery, [and] painful

hardware.” Id. at 61-62. On May 16, Dr. Greisman performed the surgery. At his

examination on July 11, Loftis said he was “doing well,” and Dr. Greisman noted

“[t]he incision of his left great toe is well healed . . . [and] [m]inimal pain to

palpation.” Id. at 110. In August 2017, Loftis filed suit.

       The district court decided that Loftis “failed to fully and properly exhaust

administrative remedies” and in any event, “summary judgment must be granted in

favor of Defendants even if the court were to assume [Loftis] had exhausted the

administrative remedies.” Id., Vol. 1 at 256. The court determined that “[a]t no time

was [Loftis] denied medical treatment for his foot problems,” id. at 259, and his

“difference of opinion [on how to best treat his foot condition] does not support a

claim of cruel and unusual punishment,” id. at 260. We resolve the matter on the

deliberate-indifference claim. See Fluker v. Cty. of Kankakee, 741 F.3d 787, 793

(7th Cir. 2013) (affirming summary judgment without resolving exhaustion); Ramos

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v. Patnaude, 640 F.3d 485, 488-89 (1st Cir. 2011) (Souter, J.) (same); but see Snyder

v. Harris, 406 F. App’x 313, 316 (10th Cir. 2011) (unpublished).

                                     ANALYSIS

Summary Judgment

      We review de novo the district court’s grant of summary judgment, applying

the same standard that the district court is to apply. See Sealock v. Colorado,

218 F.3d 1205, 1209 (10th Cir. 2000). Summary judgment is proper “if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[W]e look at the

factual record and the reasonable inferences to be drawn from the record in the light

most favorable to the non-moving party.” Self v. Crum, 439 F.3d 1227, 1230

(10th Cir. 2006). Nonetheless, “[t]he plaintiff must go beyond the pleadings and

designate specific facts so as to make a showing sufficient to establish the existence

of an element essential to that party’s case in order to survive summary judgment. . . .

Unsubstantiated allegations carry no probative weight in summary judgment

proceedings.” Id. (internal quotation marks omitted).

Eighth Amendment

      “A prison official’s deliberate indifference to an inmate’s serious medical

needs violates the Eighth Amendment.” Sealock, 218 F.3d at 1209. “Deliberate

indifference involves both an objective and a subjective component. The objective

component is met if the deprivation is sufficiently serious.” Id. (internal quotation

marks omitted). And “[t]he subjective component is met if a prison official knows of

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and disregards an excessive risk to inmate health or safety.” Id. (internal quotation

marks omitted). Negligent diagnosis or treatment is not enough to support a

constitutional violation. See Self, 439 F.3d at 1230. Indeed, our “cases show that the

subjective component is not satisfied, absent an extraordinary degree of neglect,

where a doctor merely exercises his considered medical judgment.” Id. at 1232.

      Loftis’s claim is that the defendants violated his constitutional rights by

delaying his referral to an orthopedic specialist and the surgery he ultimately

obtained. We need not address the objective component of his claim, because his

claim clearly fails on the subjective component. The evidence does not support even

a finding of negligence by Dr. Faubion or the other defendants. “Matters that

traditionally fall within the scope of medical judgment are such decisions as whether

to consult a specialist or undertake additional medical testing,” id., which are the

types of decisions Dr. Faubion made in this case. Her decision to pursue

conservative treatment in the first instance was also the judgment of Dr. Greisman.

Recall Dr. Greisman’s decision not to perform surgery because of the risks attendant

to such a procedure, but to wait several months to see whether conservative treatment

would be effective. Plaintiff may have disagreed with the approach of the

defendants, but such differences do not establish deliberate indifference. See Olson

v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (a difference of opinion between a

prisoner and the medical judgment of prison doctor does not support a claim of cruel

and unusual punishment under the Eighth Amendment).



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                            CONCLUSION

The judgment of the district court is affirmed.


                                     Entered for the Court


                                     Harris L Hartz
                                     Circuit Judge




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