Nickleberry v. Johnson , 146 F. App'x 705 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 10, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11517
Summary Calendar
ALTON JAMES NICKLEBERRY,
Plaintiff-Appellee,
versus
DANNEIL JOHNSON, ET AL.,
Defendants,
NANCY PHELPS-SANDERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-1497-G
USDC No. 3:01-CV-2104-G
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-appellant Nancy Phelps-Sanders, a nurse who was
assigned to the Dallas County Jail (“Jail”) at the time pertinent
to this action, has filed this interlocutory appeal from the
denial of her summary-judgment motion, on grounds of qualified
immunity, in the pro se 42 U.S.C. § 1983 civil rights action
filed by Alton James Nickleberry, who was at the pertinent time a
pretrial detainee at the Jail and who is now a Texas prisoner
(# 1105513).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-11517
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In his complaint against Phelps-Sanders, Nickleberry made
the following allegations: At the time of his arrest in
approximately July 2001, Nickleberry’s wrist was fractured, and
an ace bandage or “brace” was prescribed for him. During a
shakedown at the Jail on or about October 7, 2001, two
correctional officers, Bilinsky and Teel, confiscated the bandage
from his cell while he was showering. They took the bandage to
Nurse Phelps-Sanders, who told them to discard it because its
owner was not using it. Nickleberry had removed the bandage for
his shower because the Jail had provided him nothing to protect
it from water. He allegedly sent a “kite” to the Jail’s medical
department complaining about this incident, but Phelps-Sanders
did not respond until several weeks later, when an X-ray was
scheduled in early November 2001. Nickleberry asserted that
these actions by Phelps-Sanders resulted in his wrist being
refractured and amounted to deliberate indifference to his
serious medical needs.
The district court denied Phelps-Sanders’s summary judgment
motion that was based on qualified immunity, concluding that
“there are . . . many disputed facts” and that “disputes over
material fact exist.”
Although an appellate court ordinarily does not have
jurisdiction to review a denial of summary judgment, see Palmer
v. Johnson, 196 F.3d 346, 350-51 (5th Cir. 1999), we retain
jurisdiction to determine as a matter of law whether a defendant
is entitled to qualified immunity, after accepting all of the
plaintiff’s factual allegations as true, by determining whether
No. 04-11517
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these facts show that the defendant’s conduct was objectively
reasonable under clearly established law. Behrens v. Pelletier,
516 U.S. 299, 313 (1996); Colston v. Barnhart, 130 F.3d 96, 98-99
(5th Cir. 1997), reh’g denied, 146 F.3d 282 (5th Cir. 1998).
Although the district court concluded that “material” factual
issues remained and denied Johnson’s qualified-immunity assertion
on this basis, we may review the record in order “‘to determine
what facts the district court, in the light most favorable to the
nonmoving party, likely assumed.’” Kinney v. Weaver, 367 F.3d
337, 346 (5th Cir.), cert. denied, 125 S. Ct. 102 (2004) (citing
Johnson v. Jones, 515 U.S. 304, 319 (1995)); see Behrens, 516
U.S. at 313.
This court reviews de novo the grant of a motion for summary
judgment predicated on qualified immunity. Cousin v. Small,
325 F.3d 627, 637 (5th Cir.), cert. denied, 540 U.S. 826 (2003).
Summary judgment is proper if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with any
affidavits filed in support of the motion, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c). Government officials performing discretionary functions
are protected from civil liability under the doctrine of
qualified immunity if their conduct violates no “clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).
No. 04-11517
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Federal courts review claims of qualified immunity under
a two-step analysis. See Saucier v. Katz, 533 U.S. 194, 201
(2001). First, a court asks whether, “[t]aken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officers’ conduct violated a constitutional right?”
Id. “If the allegations do not establish the violation of a
constitutional right, the officer is entitled to qualified
immunity. . . . If the allegations make out a constitutional
violation, we must ask whether the right was clearly established
--that is, whether ‘it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.’”**
Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001) (quoting
Saucier, 533 U.S. at 201); Wilson v. Layne, 526 U.S. 603, 614
(1999) (“whether an official protected by qualified immunity may
be held personally liable for an allegedly unlawful official
action generally turns on the ‘objective legal reasonableness’
of the action, assessed in light of the legal rules that were
‘clearly established’ at the time it was taken” (internal
quotation marks and citations omitted)).
Nickleberry’s deliberate-indifference claim against Nurse
Phelps-Sanders essentially consisted of two components: (1) her
allegedly having directed correctional officials Bilinsky and
Teel to discard his bandage; and (2) her alleged failure to
**
Officials “can still be on notice that their conduct
violates clearly established law even in novel circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002). “Although earlier
cases involving ‘fundamentally similar’ facts can provide
especially strong support for a conclusion that the law is
clearly established, they are not necessary to such a finding.”
Id.
No. 04-11517
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rectify this matter and respond to his subsequent request for
treatment. With respect to the first component, Nickleberry’s
allegations, even if accepted as true, were insufficient to show
that it was “clear” to Phelps-Sanders that her “conduct was
unlawful in the situation [s]he confronted.” Price, 256 F.3d at
369 (citation and internal quotation marks omitted). Nickleberry
has not made specific allegations or submitted specific summary-
judgment evidence to support a showing that Phelps-Sanders was
even aware of Nickleberry’s specific medical condition or that
she should have been aware of a “substantial risk of serious
harm” relating to the discarding of the bandage. See Wagner v.
Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000). As Phelps-
Sanders has argued, nothing in the record suggests that
Nickleberry was prevented from immediately asking the medical
staff for another bandage.
With respect to the alleged delay in medical care,
Nickleberry has insisted that the confiscation incident occurred
on October 7, 2001, and that he received no medical relief until
early November 2001. Nickleberry’s own evidentiary submissions,
however, including a copy of his own grievance regarding the
alleged confiscation, firmly establish that the incident occurred
on October 24, 2001. Nickleberry’s evidentiary submissions
reflect that he filed the grievance one day after the incident
and that an X-ray was scheduled within two days after the medical
staff learned of the incident. Moreover, those evidentiary
submissions do not support Nickleberry’s insistence that he sent
a “kite” to the medical department regarding this matter on
No. 04-11517
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October 7, 2001. In summary, Nickleberry’s factual allegations
are not supported by the documents he submitted in support of his
own summary-judgment response. That evidence offers no support
for the notion that Phelps-Sanders had “subjective knowledge of
the risk of harm” faced by Nickleberry when Bilinsky and Teel
took the bandage or that Nickleberry suffered injuries relating
to this incident. See Mace v. City of Palestine, 333 F.3d 621,
625-26 (5th Cir. 2003); Wagner, 227 F.3d at 324.
Because Nickleberry’s speculative and conclusory factual
assertions and his own summary-judgment evidence do not show that
Phelps-Sanders violated “clearly established statutory or
constitutional rights of which a reasonable person would have
known,” Harlow, 457 U.S. at 818, we conclude that the district
court erred in rejecting Phelps-Sanders’s qualified-immunity
claim. The judgment is REVERSED, and we REMAND with instructions
that judgment be entered in favor of Phelps-Sanders.
Nickleberry’s motion for appointment of counsel is DENIED.
REVERSED AND REMANDED; MOTION DENIED.