UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ THE ESTATE OF ROBERT VALLINA; JUAN J. VALLINA, personally; MARTHA VALLINA, personally, and as personal representative of the estate of Robert Vallina, deceased, Plaintiffs - Appellees,

v. GABRIELA L. PETRESCU, MD, in her official and individual capacities, Defendant - Appellant. No. 17-1428 (D.C. No. 1:16-CV-02227-RM-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , LUCERO , and MATHESON , Circuit Judges.

________________ _________________ Dr. Gabriela Petrescu appeals th e district court’s denial of he r motion to dismiss. Exercising jurisdicti on under 28 U.S.C. § 1291, we re verse and remand for entry of an order granting Pe trescu qualified immunity.
I On May 27, 2014, Robert Vallina w as arrested for violating his probation on misdemeanor charges of assault in the third degree and obstruct ion of telephone

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 4, 2018
Elisabeth A. Shumaker Clerk of Court2 service. Following his arrest, V allina was taken to the Teller County Detention Center (“TCDC”), where he was he ld in custody for roughly two m onths. Vallina was subsequently transferred to the Colorado Mental Health Inst itute-Pueblo (“CMHIP”) for an evaluation of h is competency to stand trial. Petrescu was Vallina’s assigned treating physician at CMHIP. While he was examined, Vallina de nied any past suicide attempts . The evaluation determined that Vallina was competent to stand trial and noted that he was not actively suicidal. He was r eturned to TCDC on August 29, 2 014. In the early hours of September 2, 2014, Va llina took his own life while in his cell. Vallina’s estate and survivors br ought suit against CMHIP, Petr escu, and other officials and employees of CMHI P. Plaintiffs all eged violation s of Vallina’s Fourteenth Amendment rights for failure to provide adequate med ical care, and state law medical malpractice claims. Plaintiffs later dismissed the ir claims against all defendants other than Petrescu. Petrescu filed a motion to dis miss, asserting Eleventh Amendmen t immunity, governmental immunity, failure to allege personal participation , and qualified immunity. A magistrate judge reco mmended that the district cou rt grant Petrescu’s motion to dismiss as to plaintiffs’ state law claims and offici al capacity claims, but deny as to plaintiffs’ individu al capacity Fourteenth Amendment claim. Petrescu objected to the recomme ndations with respect to the Fo urteenth Amendment claim. Plaintiffs r esponded to Petrescu’s filing, bu t did not submit an3 objection of their own. The distr ict court adopted the recomme ndations. Petrescu timely appealed.
II Denial of a motion to dismiss i s generally not immediately appe alable. Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013 ). However, “the collateral-order doctrine create s appellate jurisdiction over c ertain intermediate rulings on pure issues of law,” and “denials of qualified immun ity ordinarily fall within the collateral-order doctr ine.” Lowe v. Raemisch, 864 F .3d 1205, 1207 (10th Cir. 2017). Accordingly, “a distri ct court’s pretrial denial o f a qualified immunity defense, to the extent it turns on an issue of law, is an appea lable ‘final decision’ within the meaning of 28 U.S.C . § 1291.” Powell v. Miller, 849 F.3d 1286, 1288 (10th Cir. 2017). We review the denial of qualifie d immunity at the motion to dis miss stage de novo. Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017 ). In doing so, we view the complaint’s allegations in the light most favorable to plaintiffs. Lowe, 864 F.3d at 1208. To overcome qualif ied immunity, p laintiffs carry the burden of demonstrating that the factual a llegations made in the complain t establish a violation of Vallina’s Fourteenth Amendmen t right to adequate medical tre atment, and that right was clearly established at t he time of the alleged miscon duct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009 ). We exercise our discretion in this case to hold that plaintiffs fail to demonstrate that P etrescu’s actions vio lated clearly established law without first deciding if p laintiffs sufficiently alleged a violation of Vallina’s4 Fourteenth Amendment rights. S ee Riggins v. Goodman, 572 F.3d 1101, 1107-08 (10th Cir. 2009). A defendant’s conduct violates a clearly estab lished constituti onal right when Tenth Circuit or Supreme Court precedent renders plainly appare nt the constitutional violation. Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir . 2011). We consider the precedent “on point if it i nvolves materially similar condu ct or applies with obvious clarity to the conduct at issue.” Lowe, 864 F.3d at 12 08 (quotations and emphases omitted). The district court held that plaintiffs car ried their burden to show the clearly establishe d nature of Vallina’s Fourteenth Amendmen t right by reference to Mata v. Saiz, 427 F.3d 745 ( 10th Cir. 2005). In Mata, this court stated “[t]here is little doubt that deliberate indiffe rence to an inmate’s seriou s medical need is a clearly established constitu tional right.” Id. at 749. This general recitation of the d eliberate indifference standard cannot provide a source of clearly established la w that controls in this case be cause the statement of law is insufficiently particula r to the facts at hand. “The Su preme Court has repeatedly told courts not to de fine clearly established law at a high level of generality.” Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 201 5) (quotations omitted). We conclude Mata’s ge neral statement of law cannot b e read to “dispositively condemn[] [Petrescu ’s] conduct at the time it oc curred.” Cox v. Glanz, 800 F.3d 1231, 1240 (10th Cir. 2015). The only defendant denied qualifie d immunity in Mata refused to provide any medical attention to the plain tiff despite the plaintiff’s repe ated complaints of severe5 and lasting chest pain, telling the plaintiff that she could ra ise her complaints the next morning. 427 F.3d at 756. In th is case, Vallina received a co urt-ordered competency examination. Plaintiffs dispute the adequacy of the treatment that accompanied Vallina’s examination. But the d enial of all treatment in Mata does not provide a sufficiently comparable preceden t to clearly est ablish that Pet rescu’s allegedly inadequate treatment violated Vallina’s Fourteenth Amendment ri ghts. This court distinguishes “a medical professional[’s] [] fail[ure] to treat a serious medical condition properly,” which does not constitute deliberate indif ference, from “prison officials [who] prevent an inmate from receiving treatment or d eny him access to medical personnel capable of evalu ating the need for treatment, ” which may constitute deliberate indifferenc e. Sealock v. Colorado, 218 F .3d 1205, 1211 (10th Cir. 2000). Although Mata clearly establishes that denial of a ccess to treatment for a serious medical conditi on constitutes deliberate indifference, plaintiffs’ allegations in this case concern the failure t o “treat a serious medical condi tion properly,” which we have long held fails to evince deliberate indifference. Id. 1

1 To the extent the district cour t rejected as waived Petrescu’s arguments regarding the lack of clearly es tablished law, the district cou rt erred. Because Petrescu asserted a qualified im munity defense in her motion to dismiss, plaintiffs bore the burden to demonstrate th at both: (1) their factual al legations established a constitutional violation and (2) that the right was clearly est ablished at th e time of the alleged misconduct. Cox, 800 F.3d at 1245 (“Specifically, by a sserting the qualifiedimmunity defense, [defendant] tr iggered a well-settled twofold burden that [plaintiff] was compelled to shoulder: not only did she need to rebut the [ defendant’s] noconstitutional-violation arguments , but [plaintiff] also had to demonstrate that any constitutional violation was grou nded in then-extant clearly es tablished law.”). Plaintiffs’ defense of the distr ict court’s conclusion that Pet rescu waived certain components of her qualified immun ity defense is in apposite beca use the cases upon6 Plaintiffs pivot on appeal to an unlikely source of clearly est ablished law: the dissent in Mata, which urges the court to hold that “reckless[] deviat[ion] from acceptable medical norms” constitu tes deliberate indifference. 427 F.3d at 761 (Seymour, J., dissenting in part) . But the majority in Mata de clined to hold that such a deviation from acceptable me dical norms constitutes deliberat e indifference. Id. at 761. Moreover, even the Mata d issent does not s upport plaintif fs’ claims, as the defendant in Mata “recklessly d eviated from acceptable medical norms by denying [plaintiff] access to medical pe rsonnel capable of evaluating t he need for treatment.” Id. (emphasis added). Denying an inmate access to treatment ma y constitute deliberate indifference, but a m edical professional’s failure t o treat a serious condition properly does not. Seal ock, 218 F.3d at 1211. Petre scu is thus entitled to qualified immunity becau se plaintiffs are unable to show that P etrescu’s, at worst, negligent or improper treatment of Vallina’s medi cal needs viol ated clearly established law.

which they rely address standard waiver issues outside the uniq ue burden-shifting context of qualified immunity. See, e.g., Minshall v. McGraw H ill Broad. Co., 323 F.3d 1273, 1288 (10th Cir. 2003) (holding a factual argument wa ived when it was not raised in the opening brief).7 III For the foregoing reasons, we REVERSE the district court’s denial of Petrescu’s motion to dismiss, and REMAND for entry of an order granting Petrescu qualified immunity.

Entered for the Court

Carlos F. Lucero Circuit Judge