Irby v. Hinkle ( 2023 )

Case: 21-40621 Document: 00516677200 Page: 1 Date Filed: 03/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 15, 2023
No. 21-40621
Lyle W. Cayce
Clerk
Christopher Irby,
Plaintiff—Appellant,
versus
Doctor Marcus Hinkle,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:19-CV-90
Before Jones, Willett, and Douglas, Circuit Judges.
Per Curiam:*
Christopher Irby, an inmate confined at the Darrington Unit of the
Texas Department of Criminal Justice, filed a 42 U.S.C. § 1983 suit against
Dr. Marcus Hinkle in which Irby alleged that Dr. Hinkle was deliberately
indifferent to Irby’s medical needs by initially providing inadequate
treatment and then by delaying further medical treatment for facial injuries
incurred after a fall from the top of a bunk bed. For the reasons provided
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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herein, we AFFIRM the district court’s grant of summary judgment to Dr.
Hinkle.
I.
Irby alleged that on November 4, 2017, he fell off the top bunk in his
cell and experienced periods of unconsciousness while being transported to
the infirmary. He also stated that the left side of his face was swollen, his
nose was bleeding, and he was experiencing dizziness. According to Irby,
Nurse Shanika Walker took his vital signs and contacted the on-call
physician, Dr. Hinkle. Without examining him, Dr. Hinkle instructed the
nurse to give ibuprofen to Irby and tell him to “be careful.” Irby claimed that
Dr. Hinkle declined Nurse Walker’s request to send Irby to the emergency
room.
Irby stated that he requested additional medical care during the two
weeks after his fall, but the requests were denied. After purportedly
submitting several I-60 forms (Inmate Requests to an Official), an
appointment was made for November 16, 2017. According to the complaint,
during the appointment, Dr. Hinkle observed the swelling on Irby’s face but
concluded that x-rays were unnecessary and instead prescribed additional
ibuprofen. When Irby “pleaded” for x-rays, Dr. Hinkle relented and ordered
the imaging. The x-rays were taken on November 17, 2017, but according to
the complaint, Irby only received a December 7, 2017 appointment1 to
discuss the x-rays after sending two I-60 forms to the medical department,
specifically to a “Dr. Spears.” During that appointment, Dr. Spears
informed Irby of the “damages and injuries to [Irby’s] face, as reflected in
the x-rays” and scheduled an appointment with an otolaryngologist (ENT).
1
Irby states that the appointment was scheduled for December 7, 2017, but the
medical records reflect that an appointment occurred on December 6, 2017.
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At the ENT appointment, Irby learned that fractures in his face were
inoperable due to the lapse in time from the fall. Irby alleged in his suit that
due to the delay in medical treatment by Dr. Hinkle, the left side of his face
is permanently deformed and that he continues to suffer numbness.
In response, Dr. Hinkle filed a Federal Rule of Civil Procedure 12(b)
motion to dismiss Irby’s § 1983 suit. First, Dr. Hinkle moved under Rule
12(b)(1) for dismissal of official capacity claims against him based upon
Eleventh Amendment immunity. Second, he moved under Rule 12(b)(6) for
dismissal of Irby’s individual capacity claims for failure to state a claim upon
which relief may be granted. The district court granted the motion in part
under Rule 12(b)(1) but denied the motion in part under Rule 12(b)(6).
Subsequently, Dr. Hinkle filed a Rule 56 motion for summary
judgment in which he asserted the defense of qualified immunity, contending
there was no evidence of any constitutional violation. In support of that
motion, he submitted various prison records. A November 4, 2017 medical
note reflected that Irby fell from the top bunk and appeared to Nurse Walker
complaining only of a headache and bloody nose. Nurse Walker noted that
the left side of Irby’s face was swollen and that his nose was bleeding. She
further noted that Irby was alert, could walk and talk, and had normal vital
signs. Nurse Walker relayed this information to Dr. Hinkle, who prescribed
ibuprofen and cautioned Irby to “be careful.”
In a November 7, 2017 Step 1 grievance form, Irby recounted his
November 4, 2017 appointment and complained of persistent pain from the
fall, extreme discomfort when chewing food, and continued swelling and
deformity in his face. Irby stated that prison guards laughed at him when he
reported the continued pain and did not provide any assistance. In the
section of the form that asked for the action requested to resolve his
complaint, Irby stated, “I need medical help! And a bottom bunk.”
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Irby requested further treatment from a “Dr. Spears” in a
handwritten note stamped as received on November 15, 2017. Irby asserted
that his cheekbone was “obviously broken” and that he continued to
experience numbness and pain in his mouth and nose. Specifically, Irby
asked for x-rays of his face.
In his notes from the subsequent November 16, 2017 appointment, Dr.
Hinkle noted that the swelling on Irby’s face had resolved, but that he
continued to experience numbness. Dr. Hinkle did not believe x-rays were
necessary but nevertheless ordered them. The x-rays revealed that the floor
of Irby’s left orbit and his left sinus wall were fractured. At a December 6,
2017 appointment, Terry Speer,2 a nurse practitioner, explained those
findings to Irby and referred him to an ENT.
Irby filed an opposition to Dr. Hinkle’s motion in which he reiterated
his claims of deliberate indifference and attached the notes from his
December 12, 2017 ENT appointment as an exhibit. The ENT explained
that “given the timing from [the] injury,” the fractures were likely
inoperable.
The district court found that the summary judgment evidence did not
support a claim that Dr. Hinkle knew of a serious risk of medical harm to Irby
and ignored that risk. It explained that the medical records did not reflect
that Irby experienced periods of unconsciousness after the fall and therefore
rebutted Irby’s claim that this symptom alerted Dr. Hinkle of the substantial
risk of serious harm. In addition, the district court found no dispute of
material fact regarding Nurse Walker’s alleged recommendation for Irby to
2
The appellee’s brief indicates that Terry Speer is the same “Dr. Spears” Irby
references throughout this litigation.
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go to the emergency room. It emphasized that the medical records did not
include or refer to any such recommendation.
The district court therefore concluded that Irby’s argument regarding
his initial medical appointment amounted to a disagreement with Dr.
Hinkle’s treatment plan and that such a disagreement did not present a
cognizable § 1983 claim. Moreover, it explained that even if the doctor’s
treatment plan was erroneous, claims of negligence or malpractice also are
not cognizable § 1983 claims. In sum, the district court determined that
“[t]he facts taken in the light most favorable to Irby do not raise a genuine
issue of material fact about whether Dr. Hinkle was aware of objective facts
that showed a substantial risk to Irby’s health when he considered how to
treat Irby on November 4” or whether the doctor “inferred that such a risk
existed and deliberately disregarded it by failing to order Irby’s transport to
the emergency room.” Because Irby did not carry his burden in negating Dr.
Hinkle’s qualified immunity defense, it granted Dr. Hinkle summary
judgment on Irby’s failure-to-treat claim.
Regarding Irby’s delay-of-treatment claim, the district court noted his
assertion that he had filed several formal requests for additional medical
treatment but explained that Irby had not attached any I-60 forms or other
formal sick call requests in his opposition to the motion for summary
judgment. The district court further noted that Dr. Hinkle met with Irby one
day after his November 15, 2017 handwritten request for medical care. The
district court concluded that “Irby’s unsupported allegations of ignored
requests for treatment are insufficient to raise a genuine issue of material fact
over whether a constitutional violation occurred.” The district court
therefore concluded that Dr. Hinkle was entitled to qualified immunity on
this claim, granted Dr. Hinkle’s motion for summary judgment, and
dismissed Irby’s § 1983 suit with prejudice. Irby timely filed a notice of
appeal.
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II.
We review de novo a grant of summary judgment, applying the same
standard as the district court. Nickell v. Beau View of Biloxi, LLC, 636 F.3d
752, 754 (5th Cir. 2011). Summary judgment is appropriate if the record
discloses “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);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We view evidence and
draw all inferences in a light most favorable to the nonmovant; however,
“[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.”
Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003). The pleadings and
other filings of pro se litigants are construed liberally. Coleman v. United
States, 912 F.3d 824, 828 (5th Cir. 2019).
III.
“To establish a claim under § 1983, a plaintiff must (1) allege a
violation of a right secured by the Constitution or laws of the United States
and (2) demonstrate that the alleged deprivation was committed by a person
acting under color of state law.” Pratt v. Harris Cnty., Tex., 822 F.3d 174,
180 (5th Cir. 2016) (internal quotation marks and citation omitted). Qualified
immunity shields government officials from civil liability if “their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (internal quotation marks and citation omitted). Once the defense
is properly raised, the burden shifts to the plaintiff to rebut it. Vincent v. City
of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). To defeat qualified immunity
at the summary judgment stage, a plaintiff must establish a genuine fact issue
as to whether an official’s conduct violated a constitutional right of the
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plaintiff that was clearly established at the time of the violation. Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
It is clearly established that deliberate indifference to the serious
medical needs of prisoners constitutes a violation of the Eighth Amendment
remediable under § 1983. Estelle v. Gamble, 429 U.S. 97, 104–05 (1976);
Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Prison officials violate
the Eighth Amendment by demonstrating deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain. Estelle, 429 U.S. at 104–06. “Deliberate indifference is an
extremely high standard to meet.” Gobert, 463 F.3d at 346 (internal
quotation marks and citation omitted). A prison official shows deliberate
indifference if “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.” Farmer v. Brennan, 511 U.S. 825, 837
(1994).
Thus, “[a]n official is not liable unless he ‘knows of and disregards an
excessive risk’ to a plaintiff’s safety.” Kelson v. Clark, 1 F.4th 411, 417 (5th
Cir. 2021) (quoting Garza v. City of Donna, 922 F.3d 626, 635 (5th Cir.
2019)). This requires a plaintiff to show that prison officials “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.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d
752, 756 (5th Cir. 2001) (internal quotation marks and citation omitted).
“A serious medical need is one for which treatment has been
recommended or for which the need is so apparent that even laymen would
recognize that care is required.” Gobert, 463 F.3d at 345 n.12. “Delay in
medical care can only constitute an Eighth Amendment violation if there has
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been deliberate indifference that results in substantial harm.” Westfall v.
Luna, 903 F.3d 534, 551 (5th Cir. 2018) (internal quotation marks, citation,
and emphasis omitted). Unsuccessful medical treatment, acts of negligence,
neglect, or medical malpractice are insufficient to give rise to a § 1983 cause
of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). “Medical
records of sick calls, examinations, diagnoses, and medications may rebut an
inmate’s allegations of deliberate indifference.” Banuelos v. McFarland, 41
F.3d 232, 235 (5th Cir. 1995).
A.
Irby argues that the district court erred in granting Dr. Hinkle’s
motion for summary judgment because a dispute of material fact existed as
to Irby’s claim of deliberate indifference to his medical care. He asserts that
Dr. Hinkle knew of the substantial risk of harm and ignored that risk and that
Dr. Hinkle’s initial treatment of Irby’s facial injury was inadequate and did
not address that risk. Furthermore, Irby contends that the record evidence
supports his argument that Dr. Hinkle delayed medical care of the injury and
that this delay resulted in continuing pain and facial deformity.
Irby has not demonstrated that a dispute of material fact existed
regarding Dr. Hinkle’s initial treatment. Irby urges that Dr. Hinkle knew of
the seriousness of his facial injuries due to his bouts of unconsciousness and
provided insufficient treatment by merely prescribing ibuprofen and warning
him to be careful, but the medical records do not support that assertion.
Nurse Walker’s notes do not reflect that Irby experienced periods of
unconsciousness but rather state that he was alert and able to walk and talk.
Similarly, the notes do not reflect that Nurse Walker recommended to Dr.
Hinkle that Irby be transported to the emergency room. Irby’s challenges to
Dr. Hinkle’s initial prescription of ibuprofen and failure to send Irby to the
emergency room amount to disagreements with his treatment plan, which are
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not cognizable § 1983 claims. See Varnado, 920 F.2d at 321. Moreover, even
if the prescription and failure to send Irby to the emergency room were
erroneous medical decisions, Dr. Hinkle’s acts of negligence or medical
malpractice are also insufficient to give rise to claims under § 1983. See id.
Irby contends that “[n]o doctor, after being apprised that one fell from the
top bunk, resulting into noticeable injuries that entails bleeding from the
nose, and the swelling of the left eye and left side of face, would recommend
‘Ibuprophen’ only, instead of, as a cautionary measure, medical treatment.”
But “deliberate indifference cannot be inferred merely from a negligent or
even a grossly negligent response to a substantial risk of serious harm.”
Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001).
Similarly, Irby has not demonstrated that a dispute of material fact
existed regarding Dr. Hinkle’s subsequent treatment. Irby states that he filed
numerous formal requests for medical care that were ignored, but he did not
include those forms in his opposition to Dr. Hinkle’s motion for summary
judgment. He further states that his family made numerous calls to the
medical ombudsman on his behalf, but no affidavits indicating as much
appear in the record. After Irby submitted an informal handwritten request
for additional medical care, Dr. Hinkle saw him the next day. Hinkle ordered
x-rays that revealed facial fractures, and the medical staff scheduled a follow-
up appointment for Irby. Irby places great emphasis on the ENT’s
conclusion that surgical repair of the fractures was likely impossible due to
the passage of time as evidence that Dr. Hinkle’s delay in care resulted in
serious physical injury. However, there is no evidence that Dr. Hinkle
ignored requests for medical care or interfered with the scheduling of
subsequent appointments. Irby indeed requested medical care in the
November 7, 2017 Step 1 grievance form, but he complained that prison
guards, rather than Dr. Hinkle, ignored previous requests for additional care.
Irby has not demonstrated a cognizable delay-of-treatment claim because
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there is no factual dispute regarding any deliberate indifference by Dr. Hinkle
that resulted in substantial harm to Irby. See Westfall, 903 F.3d at 551. While
Dr. Hinkle’s course of action appears to have left much to be desired, it
simply does not reach the level of deliberate indifference.
Irby relies on a Ninth Circuit case, Jett v. Penner, for the proposition
that this court should reverse and remand as an issue of material fact exists
as to whether Dr. Hinkle was deliberately indifferent to a serious medical
need. 439 F.3d 1091 (9th Cir. 2006). At the outset, the court notes that
despite Irby’s claim to the contrary, precedent from the Ninth Circuit is not
binding on this court. Salazar v. Dretke, 419 F.3d 384, 404 (5th Cir. 2005).
Moreover, the facts of Jett are distinguishable from the instant matter. In
Jett, the plaintiff fell from the top bunk in his prison cell and fractured his
thumb. Jett, 439 F.3d at 1094. After being taken to the emergency room, he
was advised in written instructions to see an orthopedic doctor within a week
for a recheck. Id. After more than nineteen months, including numerous
requests for follow-up attention, the plaintiff was finally able to see an
orthopedic specialist who determined the thumb had healed incorrectly. Id.
at 1095. In reversing the district court’s grant of summary judgment to the
prison physician, the Ninth Circuit noted that there was ample evidence in
the plaintiff’s medical file to support a finding that the physician was aware
of the risk to the plaintiff. Id. at 1097 (“[T]here is evidence the aftercare
instructions were in [plaintiff’s] medical file, he sent medical slips, he filed a
medical grievance . . . and he sent a letter via institutional mail to [the prison
physician] describing his need to see an orthopedic doctor to set and cast his
fractured right thumb.”). The Ninth Circuit concluded that the plaintiff
presented sufficient evidence to establish that the defendants were
deliberately indifferent to his need to have his fractured thumb set and cast.
Id. at 1096.
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Here, Irby states that he filed numerous formal requests for medical
care that were ignored like the plaintiff in Jett, but he did not include those
forms in his opposition to Dr. Hinkle’s motion for summary judgment. To
the contrary, the records show that after Irby submitted an informal
handwritten request for additional medical care, he met with Dr. Hinkle the
next day and x-rays were ordered. Moreover, unlike the medical file of the
plaintiff in Jett that included follow-up care instructions that put the prison
physician on notice, nothing in Irby’s medical file indicated that he was at a
substantial risk of harm. To the contrary, the medical file indicates that Irby
was alert, could walk and talk, and had normal vital signs.
Given the absence of a factual dispute regarding a constitutional
violation, the district court did not err in concluding that Dr. Hinkle was
entitled to qualified immunity and in granting Dr. Hinkle’s motion for
summary judgment on Irby’s deliberate indifference claims.
B.
Irby also argues that the district court erred in not allowing him to
present witnesses in support of his opposition to Dr. Hinkle’s motion for
summary judgment. Specifically, he wished to call Nurse Walker and two
officers who witnessed his fall. To the extent Irby challenges the failure of
the district court to hold a hearing on Dr. Hinkle’s motion, Irby had no right
to a hearing. See Johnson v. United States, 460 F.3d 616, 619 n.2 (5th Cir.
2006); Daniels v. Morris, 746 F.2d 271, 274–75 (5th Cir. 1984). This court
reviews for abuse of discretion the district court’s decision not to hold a
hearing on a motion for summary judgment. Garza-Trevino v. New England
Fin., 320 F. App’x 203, 206 (5th Cir. 2009); see also Pavone v. Miss. Riverboat
Amusement Corp., 52 F.3d 560, 568 (5th Cir. 1995) (denial of motion to
continue summary judgment hearing); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994) (dismissal of a prisoner’s complaint without holding a hearing).
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The district court did not abuse its discretion. Irby contends that his
requested witnesses would have provided eyewitness accounts of his fall from
the bunk and the events after the incident, but it is not clear whether the
district court would have permitted live testimony at the summary judgment
hearing and the refusal of such would not be an abuse of discretion. More
importantly, Irby was not denied the opportunity to come forward with
testimonial evidence because he could have obtained affidavits from potential
witnesses and submitted them with his motion.
Accordingly, the judgment of the district court is AFFIRMED.
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