Schafer v. Carmona , 71 F. App'x 350 ( 2003 )


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  •                                                                United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                         August 11, 2003
    __________________________               Charles R. Fulbruge III
    Clerk
    No. 02-41175
    __________________________
    KEITH ALBERT SHAFER,
    Plaintiff-Appellee,
    versus
    EDUARDO CARMONA, Warden; ET AL,
    Defendants,
    EDUARDO CARMONA, Warden,
    Defendant-Appellant.
    ___________________________________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    (No. M-99-CV-323)
    ___________________________________________________
    Before WIENER, CLEMENT, and PRADO, Circuit Judges.
    PER CURIAM:*
    Defendant-Appellant      Eduardo    Carmona   (“Warden     Carmona”      or
    “warden”), the warden of the Segovia Unit of the Texas Department
    of Criminal Justice, Institutional Division, appeals the district
    court’s   denial   of   his   motion    for   summary    judgment   based     on
    qualified immunity.      We reverse.
    I. FACTS AND PROCEEDINGS
    In this 
    42 U.S.C. § 1983
     case, Plaintiff-Appellee Keith Albert
    * 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    this opinion should not be published and is not precedent except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.
    Shafer (“Shafer”) alleges that Warden Carmona was deliberately
    indifferent to his serious medical needs.      Shafer sustained a
    fractured wrist when he was assaulted by another inmate during what
    Shafer describes as a racially-motivated altercation.        He was
    immediately transported to a local hospital, where his wrist was
    splinted.1   On a standard “patient post-care instruction” form,
    Shafer’s treating physician recommended that he “call and make an
    appointment with [his] family physician within one day[].”   Shafer
    alleges that the emergency room doctor also recommended surgery “at
    that time” but that unnamed “prison officials” insisted he return
    to the Segovia Unit.
    On his return to the Segovia Unit, Shafer was examined by
    prison medical personnel, and a prison doctor prescribed pain
    medication, apparently without examining Shafer.     A physician’s
    assistant examined Shafer again the next day, and he was treated by
    prison medical staff again two days later.   Five days after that,
    he complained of pain and was examined by a prison doctor who
    recommended immediate transfer for surgery. Shafer was transferred
    to the University of Texas Medical Branch and underwent orthopedic
    surgery the following day —— a total of nine days after the
    original incident.
    1
    The record does not conclusively establish how Shafer’s arm
    was immobilized (i.e., in a cast or splint). Shafer has maintained
    that the arm was merely placed in a splint, but his medical records
    alternately reference a “splint” and a “cast.” This minor factual
    discrepancy has no bearing on the result of this appeal.
    2
    In the meantime, prison personnel expressed concern that
    Shafer was not safe in his current unit, as he would not be able to
    defend himself if involved in another physical conflict.         A memo
    (or email) sent to another prison official over the warden’s name,2
    explained that Shafer had been attacked by another prisoner and had
    “received preliminary care at our local free world hospital and is
    pending a transfer to a TDCJ-ID Medical Facility for follow up
    care.”   The memo recommended that Shafer “not be returned to his
    unit upon completion of his medical treatment.”
    Shafer filed suit, pro se, alleging, inter alia, that the
    nine-day delay in treatment evidences Warden Carmona’s “deliberate
    indifference” to Shafer’s serious medical needs.        According to
    Shafer, as a result of his injuries he has suffered physical pain
    and mental anguish, endured multiple surgeries, and lost the use of
    his left wrist.   The matter was referred to a magistrate judge who
    appointed counsel for Shafer.         The warden filed a motion for
    summary judgment, arguing, in pertinent part, that he was entitled
    to qualified immunity because he had no personal involvement in
    Shafer’s treatment and because Shafer had failed to establish an
    Eighth Amendment violation.
    After   briefing,   the   magistrate   judge   issued   a   report
    recommending that the motion be granted with respect to all of
    2
    The memorandum indicates that it was sent by an
    administrative assistant, under the “authority” of Warden Carmona.
    For purposes of this appeal, we assume the memorandum was authored
    by Warden Carmona, as Shafer maintains.
    3
    Shafer’s claims, with the exception of the deliberate indifference
    claim against Warden Carmona.            Over the warden’s objection, the
    district court adopted the recommendation of the magistrate judge
    and denied Warden Carmona’s motion for summary judgment on Shafer’s
    deliberate indifference claim.           Warden Carmona timely appealed.
    II. LAW & ANALYSIS
    A.   Jurisdiction
    A    district   court’s     order       denying       qualified   immunity   is
    immediately appealable if based on a conclusion of law.3                      We have
    interlocutory jurisdiction to “take, as given, the facts that the
    district    court    assumed    when   it      denied       summary    judgment   and
    determine    whether    these    facts       state     a    claim     under   clearly
    established law.”4
    B.   Standard of Review
    We review a grant of summary judgment de novo, applying the
    same standard as the district court.5                      A motion for summary
    judgment is properly granted only if there is no genuine issue as
    to any material fact.6          An issue is material if its resolution
    3
    Palmer v. Johnson, 
    193 F.3d 346
    , 350 (5th Cir. 1999).
    4
    Nerren v. Livingston Police Dep’t, 
    86 F.3d 469
    , 472 (5th
    Cir. 1996)(internal quotations omitted).
    5
    Morris v. Covan World Wide Moving, Inc., 
    144 F.3d 377
    , 380
    (5th Cir. 1998).
    6
    Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 
    477 U.S. 317
    ,
    322 (1986).
    4
    could affect the outcome of the action.7           In deciding whether a
    fact issue has been created, we view the facts and the inferences
    to be drawn therefrom in the light most favorable to the nonmoving
    party.8     The nonmoving party, however, cannot satisfy his summary
    judgment burden with conclusional allegations, unsubstantiated
    assertions, or only a scintilla of evidence.9
    C.   Qualified Immunity
    Qualified immunity “shields a state official from personal
    liability for damages under 
    42 U.S.C. § 1983
     when the official’s
    exercise of discretionary authority results in a violation of an
    individual’s federal constitutional or statutory rights, unless at
    the time and under the circumstances of the challenged conduct all
    reasonable officials would have realized that it was proscribed by
    the federal law on which the suit is founded.”10            The bifurcated
    test for qualified immunity requires examination of (1) whether the
    plaintiff     has   alleged   a   violation   of   a   clearly   established
    constitutional right; and (2) if so, whether the defendant’s conduct
    7
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    8
    See Olabisiomotosho v. City of Houston, 
    185 F.3d 521
    , 525
    (5th Cir. 1999).
    9
    Little v. Liquid Air Corp., 
    37 F.3d 1069
    , 1075 (5th Cir.
    1994) (en banc).
    10
    Palmer, 
    193 F.3d at 351
     (internal quotations omitted); see
    also   Austin   v.  Johnson,   
    328 F.3d 204
    ,   207  (5th   Cir.
    2003)(explaining that “[q]ualified immunity is an entitlement not
    to stand trial or face the other burdens of litigation”)(quoting
    Mitchell v. Forsyth, 
    472 U.S. 511
    , 526 (1985)).
    5
    was objectively unreasonable in the light of the clearly established
    law at the time of the incident.11
    In this case, Shafer alleges that he was denied adequate
    medical care in violation of the Eighth Amendment.12           To establish
    this threshold Eighth Amendment violation, Shafer must demonstrate
    that Warden Carmona was “deliberately indifferent to his serious
    medical needs.”13     Deliberate indifference is “an extremely high
    standard”14 that encompasses “only unnecessary and wanton infliction
    of pain repugnant to the conscience of mankind.”15                Negligent
    medical care does not give rise to a § 1983 claim, and a delay in
    medical care is actionable only “if there has been deliberate
    indifference, which results in substantial harm.”16
    The    Supreme   Court   has   adopted   a   subjective   standard   for
    deliberate indifference.        “[A] prison official cannot be found
    11
    Domino v. Texas Dep’t of Criminal Justice, 
    239 F.3d 752
    , 755
    (5th Cir. 2001).
    12
    See Stewart v. Murphy, 
    174 F.3d 530
    , 533 (5th Cir.
    1999)(explaining that the “cruel and unusual punishments” clause of
    the Eighth Amendment “has been interpreted to mandate the provision
    of medical care to [prisoners]”).
    13
    McCormick v. Stalder, 
    105 F.3d 1059
    , 1061 (5th Cir.
    1997)(citing Estelle v. Gamble, 
    429 U.S. 97
    , 100 (1976)).
    “[D]eliberate indifference to serious medical needs of prisoners
    constitutes the ‘unnecessary and wanton infliction of pain
    proscribed by the Eighth Amendment.” Estelle, 
    429 U.S. at 104
    (internal citation omitted).
    14
    Domino, 
    239 F.3d at 756
    .
    15
    McCormick, 
    105 F.3d at 1061
    .
    16
    Mendoza v. Lynaugh, 
    989 F.2d 191
    , 195 (5th Cir. 1993).
    6
    liable under the Eighth Amendment...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.”17       In short, deliberate indifference
    requires a “showing that the official was subjectively aware of the
    risk”18 of serious harm.
    This “extremely high,” subjective standard has not been met in
    the instant case. The magistrate judge’s recommendation that Warden
    Carmona’s    motion   for   summary   judgment   be   denied   was   based
    exclusively on the memo, purportedly sent by the warden, relating
    that Shafer had been attacked, had been treated at a local hospital,
    and was awaiting transfer to the medical branch.         From this memo,
    the magistrate judge deduced that the warden was aware that Shafer
    had been instructed to make a doctor’s appointment within one day
    but nevertheless delayed treatment for nine days.
    Whether the warden knew of the emergency room doctor’s generic
    directive is immaterial to our qualified immunity determination.
    To prevail on his deliberate indifference claim, Shafer must “raise
    genuine issues as to facts which, if true, would clearly evince the
    17
    Farmer v. Brennan, 
    511 U.S. 825
    , 837 (1994); see also Lawson
    v. Dallas County, 
    286 F.3d 257
    , 262 (5th Cir. 2002)(“The deliberate
    indifference standard is a subjective inquiry; the plaintiff must
    establish that the jail officials were actually aware of the risk,
    yet consciously disregarded it.”).
    18
    Id. at 829 (emphasis added).
    7
    medical need in question and indicate that the denial of treatment
    was   much      more   likely    than     not   to   result   in    serious   medical
    consequences, and additionally that the defendant[] had sufficient
    knowledge of the situation so that the denial of medical care
    constituted wanton disregard”19 of his rights.                Even when we assume,
    arguendo, that the warden personally authored (or even was aware of)
    the memo, it establishes at most that the warden had knowledge of
    (1) the original altercation; (2) Shafer’s treatment at a local
    hospital; and (3) the fact that Shafer was awaiting transfer for
    further treatment.        There is no record evidence indicating that the
    warden knew that Shafer was in need of immediate surgery or that a
    delay      in   treatment       was    likely   to     lead   to   serious    medical
    consequences.
    Shafer has failed to establish a genuine issue of material fact
    regarding his Eighth Amendment claim of deliberate indifference
    against Warden Carmona.               He has “submitted no evidence that [the
    warden has] ever refused to treat him, ignored his complaints,
    intentionally treated him incorrectly, or engaged in any similar
    conduct that would clearly evince a wanton disregard for any serious
    medical needs.”20        Although Shafer alleges that the emergency room
    doctor recommended immediate surgery and that Warden Carmona was
    aware of this medical need, he points to no medical records or other
    19
    Johnson v. Treen,                 
    759 F.2d 1236
    ,     1238   (5th   Cir.
    1985)(emphasis added).
    
    20 Johnson, 759
     F.2d at 1238.
    8
    evidence to support his contention; and our independent review of
    the record reveals none. As Shafer has not demonstrated a violation
    of a clearly established constitutional right, we do not reach the
    issue of the objective reasonableness of Warden Carmona’s conduct
    and conclude that the warden is entitled to qualified immunity.
    III. CONCLUSION
    For the foregoing reasons, we reverse the district court’s
    denial of Warden Carmona’s motion for summary judgment and remand
    for entry of judgment consistent with this opinion.
    REVERSED and REMANDED.
    9