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 the district court’s denial of her motion to 

dismiss. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for 

entry of an order granting Petrescu qualified immunity. 

I

On May 27, 2014, Robert Vallina was arrested for violating his probation on 

misdemeanor charges of assault in the third degree and obstruction 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 * This order and judgment is not binding precedent, except under the doctrines 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 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 4, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

service. Following his arrest, Vallina was taken to the Teller County Detention 

Center (“TCDC”), where he was held in custody for roughly two months. Vallina 

was subsequently transferred to the Colorado Mental Health Institute-Pueblo 

(“CMHIP”) for an evaluation of his competency to stand trial. Petrescu was 

Vallina’s assigned treating physician at CMHIP. 

While he was examined, Vallina denied any past suicide attempts. The 

evaluation determined that Vallina was competent to stand trial and noted that he was 

not actively suicidal. He was returned to TCDC on August 29, 2014. In the early 

hours of September 2, 2014, Vallina took his own life while in his cell. 

Vallina’s estate and survivors brought suit against CMHIP, Petrescu, and other 

officials and employees of CMHIP. Plaintiffs alleged violations of Vallina’s 

Fourteenth Amendment rights for failure to provide adequate medical care, and state 

law medical malpractice claims. Plaintiffs later dismissed their claims against all 

defendants other than Petrescu.

Petrescu filed a motion to dismiss, asserting Eleventh Amendment immunity, 

governmental immunity, failure to allege personal participation, and qualified 

immunity. A magistrate judge recommended that the district court grant Petrescu’s 

motion to dismiss as to plaintiffs’ state law claims and official capacity claims, but 

deny as to plaintiffs’ individual capacity Fourteenth Amendment claim. 

Petrescu objected to the recommendations with respect to the Fourteenth 

Amendment claim. Plaintiffs responded to Petrescu’s filing, but did not submit an 
3 

objection of their own. The district court adopted the recommendations. Petrescu 

timely appealed. 

II

Denial of a motion to dismiss is generally not immediately appealable. 

Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). However, “the 

collateral-order doctrine creates appellate jurisdiction over certain intermediate 

rulings on pure issues of law,” and “denials of qualified immunity ordinarily fall 

within the collateral-order doctrine.” Lowe v. Raemisch, 864 F.3d 1205, 1207 (10th 

Cir. 2017). Accordingly, “a district court’s pretrial denial of a qualified immunity 

defense, to the extent it turns on an issue of law, is an appealable ‘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 qualified immunity at the motion to dismiss 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 qualified immunity, plaintiffs carry the burden of 

demonstrating that the factual allegations made in the complaint establish a violation 

of Vallina’s Fourteenth Amendment right to adequate medical treatment, and that 

right was clearly established at the time of the alleged misconduct. 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 Petrescu’s actions violated clearly established 

law without first deciding if plaintiffs sufficiently alleged a violation of Vallina’s 
4 

Fourteenth Amendment rights. See Riggins v. Goodman, 572 F.3d 1101, 1107-08 

(10th Cir. 2009). 

A defendant’s conduct violates a clearly established constitutional right when 

Tenth Circuit or Supreme Court precedent renders plainly apparent the constitutional 

violation. Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir. 2011). We consider 

the precedent “on point if it involves materially similar conduct or applies with 

obvious clarity to the conduct at issue.” Lowe, 864 F.3d at 1208 (quotations and 

emphases omitted). The district court held that plaintiffs carried their burden to show 

the clearly established nature of Vallina’s Fourteenth Amendment 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 indifference to an inmate’s serious medical need is a 

clearly established constitutional right.” Id. at 749. 

This general recitation of the deliberate indifference standard cannot provide a 

source of clearly established law that controls in this case because the statement of 

law is insufficiently particular to the facts at hand. “The Supreme Court has 

repeatedly told courts not to define clearly established law at a high level of 

generality.” Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015) (quotations 

omitted). We conclude Mata’s general statement of law cannot be read to 

“dispositively condemn[] [Petrescu’s] conduct at the time it occurred.” Cox v. 

Glanz, 800 F.3d 1231, 1240 (10th Cir. 2015). 

The only defendant denied qualified immunity in Mata refused to provide any 

medical attention to the plaintiff despite the plaintiff’s repeated complaints of severe 
5 

and lasting chest pain, telling the plaintiff that she could raise her complaints the next 

morning. 427 F.3d at 756. In this case, Vallina received a court-ordered competency 

examination. Plaintiffs dispute the adequacy of the treatment that accompanied 

Vallina’s examination. But the denial of all treatment in Mata does not provide a 

sufficiently comparable precedent to clearly establish that Petrescu’s allegedly 

inadequate treatment violated Vallina’s Fourteenth Amendment rights. This court 

distinguishes “a medical professional[’s] [] fail[ure] to treat a serious medical 

condition properly,” which does not constitute deliberate indifference, from “prison 

officials [who] prevent an inmate from receiving treatment or deny him access to 

medical personnel capable of evaluating the need for treatment,” which may 

constitute deliberate indifference. Sealock v. Colorado, 218 F.3d 1205, 1211 (10th 

Cir. 2000). Although Mata clearly establishes that denial of access to treatment for a 

serious medical condition constitutes deliberate indifference, plaintiffs’ allegations in 

this case concern the failure to “treat a serious medical condition properly,” which we 

have long held fails to evince deliberate indifference. Id.1

 

 1

 To the extent the district court rejected as waived Petrescu’s arguments 

regarding the lack of clearly established law, the district court erred. Because 

Petrescu asserted a qualified immunity defense in her motion to dismiss, plaintiffs 

bore the burden to demonstrate that both: (1) their factual allegations established a 

constitutional violation and (2) that the right was clearly established at the time of the 

alleged misconduct. Cox, 800 F.3d at 1245 (“Specifically, by asserting the qualifiedimmunity defense, [defendant] triggered 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 grounded in then-extant clearly established law.”). 

Plaintiffs’ defense of the district court’s conclusion that Petrescu waived certain 

components of her qualified immunity defense is inapposite because the cases upon 
6 

Plaintiffs pivot on appeal to an unlikely source of clearly established law: the 

dissent in Mata, which urges the court to hold that “reckless[] deviat[ion] from 

acceptable medical norms” constitutes deliberate indifference. 427 F.3d at 761 

(Seymour, J., dissenting in part). But the majority in Mata declined to hold that such 

a deviation from acceptable medical norms constitutes deliberate indifference. Id. at 

761. Moreover, even the Mata dissent does not support plaintiffs’ claims, as the 

defendant in Mata “recklessly deviated from acceptable medical norms by denying 

[plaintiff] access to medical personnel capable of evaluating the need for treatment.” 

Id. (emphasis added). Denying an inmate access to treatment may constitute 

deliberate indifference, but a medical professional’s failure to treat a serious 

condition properly does not. Sealock, 218 F.3d at 1211. Petrescu is thus entitled to 

qualified immunity because plaintiffs are unable to show that Petrescu’s, at worst, 

negligent or improper treatment of Vallina’s medical needs violated clearly 

established law. 

 

which they rely address standard waiver issues outside the unique burden-shifting 

context of qualified immunity. See, e.g., Minshall v. McGraw Hill Broad. Co., 323 

F.3d 1273, 1288 (10th Cir. 2003) (holding a factual argument waived when it was not 

raised in the opening brief). 
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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