Ware v. Zeller , 214 F. App'x 363 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2006
Charles R. Fulbruge III
Clerk
No. 04-20539
Summary Calendar
MELVIN WARE,
Plaintiff-Appellant,
versus
JAMES A. ZELLER, Senior Warden; FRED A. HODGE; IKEDINOBI U. ENI,
M.D.; MS. K. HAWKINS, R.N.; MS. A. HARDY, R.N.C.; JANET HENLY;
FRANCES CHERIAN, Doctor,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:01-CV-3378
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Melvin Ware, pro se Texas prisoner # 783227, filed a 42
U.S.C. § 1983 action against the University of Texas Medical
Branch (UTMB); James A. Zeller, the Senior Warden of the Ferguson
Unit; the Texas Department of Criminal Justice - Institutional
Division (TDCJ-ID); Correctional Officer Fred A. Hodges; Dr.
Ikdedinobi Eni; Dr. Frances Cherian; Janet Henly, a UTMB licensed
vocational nurse; Kathy Hawkins, a UTMB registered nurse; and
Alegra Hardy, a UTMB registered nurse. Ware alleged that the
*
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this opinion should not be published and is not precedent except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. 04-20539
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defendants denied him proper medical treatment in violation of
the Eighth Amendment and various Texas laws. He appeals the
district court’s summary judgment dismissal of his Eighth
Amendment claims and the district court’s granting of a motion to
set aside a default judgment against Dr. Cherian. He also seeks
to supplement the record with two documents.
A. Summary judgment and qualified immunity
This court reviews de novo the district court’s grant of
summary judgment under the familiar standard of FED. R. CIV.
P. 56(c). See Cousin v. Small, 325 F.3d 627, 637 (5th Cir.
2003). Government officials acting within their discretionary
authority are immune from civil liability for damages if their
conduct does not violate clearly established constitutional
rights of which a reasonable person would have known. See Flores
v. City of Palacios, 381 F.3d 391, 393-94 (5th Cir. 2004).
Prison officials violate the Eighth Amendment’s prohibition
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs,
constituting an unnecessary and wanton infliction of pain. See
Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble,
429 U.S. 97, 104-05 (1976).
The summary judgment evidence, viewed in the light most
favorable to Ware, shows the following: Ware began complaining of
pain in his testicle and abdomen on November 20, 1999. Officer
Fred Hodges was alerted. His unrebutted testimony shows that he
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informed a picket officer twice that Ware needed to go to the
infirmary, and the picket officer relayed to him that Ware needed
to walk there. Officer Hodges told the picket officer that Ware
stated that he was unable to walk. He took no further action.
After Ware’s cellmate notified another officer, Ware was
taken by wheelchair to the infirmary, where he was examined by
defendants Kathy Hawkins and Janet Henly. The medical records
indicate that Ware was in excruciating pain and was twisting from
side to side on his stretcher. Nurse Hawkins attempted to
telephone the on-call physician, Dr. Cherian, but she was unable
to reach him. She then contacted defendant Dr. Eni, who
instructed Nurse Hawkins to give Ware a shot of Stadol and to
monitor him for one to two hours. Dr. Eni also directed that, if
Ware was not stable, Nurse Hawkins was to call Dr. Cherian or Dr.
Eni. Nurse Hawkins checked on Ware’s condition periodically. At
the end of her shift, she asked if he was feeling ill from the
medicine, and Ware replied that he was “okay,” although he also
allegedly stated that he was scared and needed to go to the
hospital.
Nurse Hawkins was replaced by defendant Allegra Hardy, who
conducted a musculoskeletal examination of Ware and noted that
his pain had first occurred some weeks prior during exercise.
Later that evening, she discharged him to his cell with Tylenol.
She refused to allow him to use a wheelchair, but she gave him a
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crutch. Ware was given a return pass to the infirmary for the
following day, Sunday, as well as for Monday to see a physician.
The next day, Sunday, November 21, Ware returned to the
infirmary, carried by three fellow inmates. He explained that he
was in pain and was experiencing swelling in his testicle. Nurse
Henly informed him that there was nothing to be done as he had an
appointment the following day with a physician, and she sent him
back to his cell.
On Monday, November 22, 1999, Ware was finally examined by a
physician in the infirmary. At that point, his left testicle had
swollen to four times its normal size and had become hard. A
condition called testicular torsion was suspected. Ware was sent
to the hospital, where the diagnosis was confirmed and where he
underwent surgery to remove the testicle. According to Ware, he
was told by a hospital physician that if he had been treated
earlier, the testicle might have been saved.
With respect to Officer Hodges, Ware offers no evidence
rebutting Hodges’ contention that he relayed the information to
his picket officer, who contacted the infirmary. Thus, although
Hodges allegedly was slow to respond initially and purportedly
accused Ware of faking, he did not utterly ignore Ware’s
complaints or fail to render any assistance; thus, he did not
exhibit deliberate indifference.
Both Nurse Hawkins and Nurse Hardy provided Ware with
treatment and followed Dr. Eni’s instructions. Although Ware
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asserts that they should have called Dr. Eni again or should have
sent him to the hospital, he has not shown that their conduct
rises to the level of deliberate indifference such that his
constitutional rights were violated. Nurse Hardy’s dispute with
Ware over Ware’s need for a wheelchair as opposed to a crutch
does not give rise to a constitutional violation.
With respect to Dr. Eni, it is undisputed that the nurses
did not call Dr. Eni again after his initial instructions. Thus,
Ware has failed to show that Dr. Eni had a subjective awareness
of a serious risk of harm and that he deliberately ignored Ware’s
complaints. Mere negligence or even malpractice will not support
a claim of deliberate indifference. See Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991). As for Dr. Cherian, the
unrebutted evidence shows that Dr. Cherian received no calls
about Ware; therefore, he cannot have had any knowledge of any
risk to Ware. Accordingly, the district court did not err in
granting summary judgment to Drs. Eni and Cherian and Nurses
Hawkins and Hardy.
With respect to Nurse Henly, however, Ware did come forward
with evidence that she acted with deliberate indifference on
November 21, 1999. Ware’s evidence shows, and the defendants
concede, that Nurse Henly was present during the first
examination, despite her affidavit to the contrary. Further,
Ware provided an unrebutted declaration that Nurse Henly informed
him on more than one occasion that she knew that he needed to go
No. 04-20539
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to a hospital, but that she did not want to oppose her superiors.
It is also undisputed that when Ware returned on November 21,
1999, Nurse Henly spoke to him and failed to examine him or to
make any effort to assess his condition. She simply told him
that there was nothing that could be done for him.
Given Nurse Henly’s knowledge of Ware’s condition, the
instructions by Dr. Eni to call if Ware did not improve, her
alleged statements to Ware that she knew that he needed to go to
the hospital, and Ware’s new complaints of pain and swelling in
his testicle, Ware has at least shown that there are genuine
issues of material fact regarding whether Nurse Henly’s failure
to provide any treatment on November 21, 1999, constituted
deliberate indifference, and whether her actions were objectively
reasonable. See Easter v. Powell, F.3d , No. 04-11332,
2006 WL 2831137, at *3 (5th Cir. Oct. 5, 2006). Accordingly, we
must vacate the judgment with respect to Nurse Henly.
B. State law claims/claims against UTMB and TDCJ-ID
Ware also brought a number of state law claims, which the
district court dismissed on the ground that certain claims are
not cognizable under Texas law and that the prison personnel were
entitled to official immunity. The district court also dismissed
all claims against Warden Zeller and UTMB and TDCJ-ID. As Ware
does not brief these claims, he has abandoned them. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
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C. Incomplete discovery
Ware next complains that the district court did not allow
him sufficient time for discovery. Ware’s conclusional
assertions fail to demonstrate how the requested discovery would
have enabled him to establish a genuine issue of material fact.
See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.
1993). The district court committed no error in this respect.
D. Default judgment
Ware next asserts that the district court erred in setting
aside the default judgment entered against Dr. Cherian. Ware’s
contention that the district court erroneously employed FED.
R. CIV. P. 60(b) rather than FED. R. CIV. P. 55(c) is without
merit, as Rule 55(c) expressly incorporates Rule 60(b)’s
standard. Further, the district court’s conclusion that Dr.
Cherian did not intentionally fail to answer, that he had a
meritorious defense, and that there was no prejudice to Ware, see
Effjohn Int’l Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d
552, 563 (5th Cir. 2003), was amply supported by the record. The
district court did not abuse its discretion in granting Dr.
Cherian’s motion to set aside the default judgment. See Lacy v.
Sitel Corp., 227 F.3d 290, 292 n.1 (5th Cir. 2000).
E. Supplementation of the record
Finally, Ware seeks to supplement the record with two
documents. The first is a Texas Department of Corrections
bulletin setting forth standards for prison officials to respond
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to emergency requests for medical care. As this document was not
part of the summary judgment record before the district court,
this court need not consider it. See Topalian v. Ehrman, 954
F.2d 1125, 1131 n.10 (5th Cir. 1992).
The second document is an order from the Texas State Board
of Medical Examiners disciplining Dr. Eni for his actions with
respect to Ware’s treatment. This exhibit is part of the record,
as Ware submitted it in support of a Rule 60(b) motion that he
filed while his appeal was pending. Further, although the Board
concluded that Dr. Eni had violated the standard of care and
should have recognized the symptoms of testicular torsion, this
at best shows negligence or malpractice, which is insufficient to
establish deliberate indifference. See Varnado, 920 F.2d at 321.
For the foregoing reasons, the judgment of the district
court is AFFIRMED with respect to all claims and defendants other
than Ware’s Eighth Amendment claims against Nurse Henly. The
judgment is VACATED as to the Eighth Amendment claims against
Nurse Henly, and this matter is REMANDED to the district court
for further proceedings consistent with this opinion. The motion
to supplement the record is DENIED.