UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ WILEY TOLER, Pl aintiff - 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 unde r 42 U.S.C. § 1983 against personnel at the James Crabtree Correctional Center (“Crabtre e”) alleging that his medical treatment for back pain violated his const itutional rights. The district court denied

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 summary judgment to defendant s Dr. Jeffrey Troutt, Crabtr ee’s chief medical officer, and Katryna Frech, R.N. They filed this interlocutory appeal based on qualified immunity. “[W]e have jurisd iction to review (1) whether the facts that the district court ruled a reasonable jury could find woul d suffice to show a legal violation, or (2) whether that law was clear ly established at the time of the alleged violation.” Cox v. Glanz , 800 F.3d 1231, 1242 (10th Cir. 2015) (internal quotation marks omitted). Reviewing th e 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 transfer red to Crabtree from the privately operated Lawton Correctional F acility (Lawton). Me dical records show that, at the time of his tran sfer, Mr. Toler had a prescr iption 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 rega rding his medication and he apprised Dr. Troutt that only Neur ontin worked for his back pain; Dr. Troutt discontinued Naprosyn and be gan 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 neurosur geons consulted and diagnose d Mr. Toler with lumbar3 radiculopathy. They recommended Mr. To ler 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 b ack 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 prescrib ed a different drug. Mr. Toler was eventually prescribed Ne urontin 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 th e appellants were deliberatel y indifferent to his serious medical needs in refusing to prescribe Neurontin even though it was previously prescribed at Lawton and was recommende d 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 cond ition and that a question of fa ct existed as to whether a prison doctor’s disregard of treatmen t prescribed by private doctors can subjectively constitute a purposef ul 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 wa s clearly established in one sentence — “There is little doubt that deliberate indiffere nce to an inmate’s serious medical need is a clearly established cons titutional right.” Aplt. App., Vol. 6 at 547 (alterations omitted). The district judge adopted these findings.4 II “The doctrine of qualified immunity protects government officials from liability for civil damages in sofar 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) (int ernal quotation marks omitted). “Qualified immunity is an affirmative de fense 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 reco rd 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 judg ment after a defendant has claimed qualified immunity, the plaintiff must demonstrate bo th: “(1) that the defendant’s actions violated a constitutional or statutory ri ght 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) (i nternal quotation marks omitted). The Supreme Court has held that the fede ral district and appe llate courts have discretion to determine which of the two pr ongs 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 violat e the ban on cruel and unusual punishment if their “deliberate indifference to serious medical needs of5 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 ha s 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 Cour t has established a two-pronged inquiry, including both subjective and objec tive components. Under the objective inquiry, the alleged deprivation must be “sufficiently seri ous” to constitute a deprivation of constitutional dimension and, under the s ubjective inquiry, the prison official must have a “sufficien tly culpable state of mind.” Farmer v. Brennan , 511 U.S. 825, 834 (1994) (i nternal quotation marks omit ted). A prison official cannot be liable “unless the official knows of and disregards an excessive risk to inmate health or safety; th e official must both be awar e 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 medi cal needs is a clearly established constitutiona l 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 clea rly established were sufficient, qualified immunity would almost never be granted. In this case, the proper inquiry is whether6 it was clearly established that Dr. Troutt’ s conduct — prescrib ing a medication in treating Mr. Toler’s medical condition th at was different than the medication recommended by consulting physicians — was deliberately indifferent to Mr. Toler’s medical needs. Not only was this not cl early established, but the law was clearly established to the contrary. A difference of opinion with medical st aff 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 trea tment consistent with the symptoms presented and then continues to monitor the pati ent’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 conditi on, 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 constitu tional violation, offers no support for a clearly-establ ished-law argument. In addition to being a single7 nonprecedential decision of a panel of our court, it is distinguishable from the situation here because it involved a complete denial of medicati on, as opposed to the substitution of alternative medi cines as in this case, and applied a forgiving abuse of discretion standard to the granting of injunc tive 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 identi fies no decision clearly establishing the proposition that exercising medical judgment in prescribing one course of treatment over another constitutes deliberate indiffer ence to a serious medi cal need. He cannot identify such precedent because our controlling precedent cl early establishes the law to the contrary. Accordingly, even if it could be said th at 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 th at he was deliberat ely indifferent to Mr. Toler’s medical needs in his trea tment 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.” (internal8 quotation marks omitted)). We therefore reverse and re mand with instructions to enter summary judgment in favor of Dr. Troutt and Nurse Frech.

Entered for the Court

Jerome A. Holmes Circuit Judge