UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WILEY TOLER, 

 Plaintiff - Appellee, 

v. 

JEFFREY TROUTT, D.O., 

 Defendant - Appellant, 

and 

KATRYNA FRECH, in her official and 

individual capacity, 

 Defendant. 

No. 15-6079 

(D.C. No. 5:13-CV-01025-F) 

(W.D. Okla.) 

_________________________________ 

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. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 12, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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. 
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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 
5 

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 
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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 
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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 
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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