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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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
2 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.
3 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
4 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
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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
2 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.
3 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
4 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
5 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).
6 CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Harris L Hartz Circuit Judge