FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         December 4, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
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,
                                                            No. 17-1428
v.                                              (D.C. No. 1:16-CV-02227-RM-KMT)
                                                             (D. Colo.)
GABRIELA L. PETRESCU, MD, in her
official and individual capacities,

      Defendant - Appellant.
                      _________________________________

                             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         This order and judgment is not binding precedent, except under the doctrines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.
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



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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, 

, 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, 

, 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, 

, 1288

(10th Cir. 2017).

      We review the denial of qualified immunity at the motion to dismiss stage de

novo. Apodaca v. Raemisch, 

, 1076 (10th Cir. 2017). In doing so, we

view the complaint’s allegations in the light most favorable to plaintiffs. 

. 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, 

, 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

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Fourteenth Amendment rights. See Riggins v. Goodman, 

, 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, 

, 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.” 

(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, 

(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.” 

      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, 

, 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, 

, 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

                                            4
and lasting chest pain, telling the plaintiff that she could raise her complaints the next

. 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, 

, 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. 

(“Specifically, by asserting the qualified-
immunity defense, [defendant] triggered a well-settled twofold burden that [plaintiff]
was compelled to shoulder: not only did she need to rebut the [defendant’s] no-
constitutional-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
                                            5
      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 

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

a deviation from acceptable medical norms constitutes deliberate indifference. 

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.”

Denying an inmate access to treatment may constitute

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

condition properly does not. 

. 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., 

, 1288 (10th Cir. 2003) (holding a factual argument waived when it was not
raised in the opening brief).
                                            6
                                       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




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