REVISED SEPTEMBER 29, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20571
ROBERT ARTHUR HALL,
Plaintiff-Appellant,
v.
TOMMY B. THOMAS, Sheriff; ET AL.,
Defendants,
TOMMY B. THOMAS, Sheriff; K.W. BERRY, Major; MIKE SEALE,
Doctor; M.W. QUINN, Major; C. TRINH, Doctor; DONALD KLEIN,
Doctor; MARK CHASSAY, Doctor; K. HOWARD, Nurse; M. GUICE,
Doctor; A. PHI, Doctor; KHAM LUU, Doctor,
Defendants-Appellees.
_______________________________
Appeal from the United States District Court
for the Southern District of Texas
_______________________________
September 28, 1999
Before POLITZ, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:
Appellant Robert Arthur Hall (“Hall”) appeals the decision
of the district court dismissing his 42 U.S.C. § 1983 and
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132,
claims for failure to state a claim against appellees Sheriff
Tommy B. Thomas (“Sheriff Thomas”), Major K.W. Berry (“Major
Berry”), Major M.W. Quinn (“Major Quinn”) and Nurse K. Howard
(“Nurse Howard”), and on the merits as to Drs. Mike Seale, C.
Trinh, Donald Klein, Mark Chassay, M. Guice, A. Phi and Kham Luu
(collectively, “the doctors”). We affirm.
I. Factual and Procedural Background
The United States Marshals arrested Hall on February 21,
1995, for a violation of the terms of his parole. They promptly
delivered Hall to the custody of the Harris County Jail (“HCJ”).
While incarcerated, Hall objected to the quality of the medical
treatment he received. So, on March 18, 1997, alleging that the
HCJ had violated § 1983 and the ADA, Hall filed suit. He averred
that the HCJ medical staff was deliberately indifferent to his
kidney condition, to his orthopedic pains, to his diabetes, and
to his epilepsy.
The district court granted summary judgment for the
defendants on January 15, 1998. In its opinion, the court found
that Hall had failed to state a claim against Sheriff Thomas,
Major Berry or Major Quinn because Hall had failed to specify any
conduct on the part of these individuals that contributed to a
deprivation of a constitutional right.1 With respect to the
doctors, the court held that Hall had not presented any evidence
of conduct that constituted deliberate indifference to a serious
medical need. The district court also dismissed the ADA claims
1
In a supplemental opinion dated June 5, 1998, the district court
dismissed Hall’s case against Nurse Howard on the grounds that Hall had not
set forth a claim against Nurse Howard that was not foreclosed by the January
15, 1998 opinion.
2
against all defendants because it held that the ADA did not apply
to prisons. Finally, the district court held that even if the
ADA did apply to prisons, the defendants would be qualifiedly
immune from suit thereunder because Hall’s rights under the ADA
were not clearly established at the time of the alleged
violations.
Hall filed a pro se appeal.
II. Standard of Review
We apply de novo review to a district court’s decision to
grant summary judgment. See Prytania Park Hotel, Ltd. v. General
Star Indem. Co., 179 F.3d 169, 173 (5th Cir. 1999). Summary
judgment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, 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. Proc. 56(c); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Under this
standard, all fact questions must be viewed in the light most
favorable to the non-moving party, and questions of law are
reviewed de novo.” Horton v. City of Houston, 179 F.3d 188, 191
(5th Cir. 1999).
We likewise review the district court’s decision to dismiss
a complaint under Rule 12(b)(6) de novo. Lowrey v. Texas A & M
Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997). This disfavored
3
motion should not be granted unless “it appears beyond a doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Conley v. Gibson, 355
U.S. 41, 45-46 (1957). In so determining, the district court
must liberally construe the complaint in favor of the plaintiff
and assume that all facts pleaded in the complaint are true. See
Brown v. Nationsbank Corp., — F.3d — (5th Cir. 1999), available
at 1999 WL 695692 (5th Cir. (Tex)), *4.
III. The ADA Claim and Qualified Immunity
Hall argues that Pennsylvania Dep’t of Corrections v.
Yeskey, 118 S. Ct. 1952 (1998), mandates reversal of the district
court’s dismissal of his ADA claim. Moreover, Hall maintains
that the district court erred when it found the defendants were
entitled to qualified immunity. The defendants counter that,
though Yeskey alters one of the district court’s holdings, it
does not disturb the lower court’s alternative holding regarding
qualified immunity because Hall’s right to sue under the ADA was
not clearly established prior to Yeskey.
Yeskey squarely and unmistakably holds that “the ADA plainly
covers state institutions without any exception that could cast
the coverage of prisons into doubt.” Id. at 1953. Thus, the
district court did err, though understandably so, when it held
that the ADA did not apply to prisons.
Nevertheless, we need not reverse the outcome. The district
4
court correctly held that the defendants were entitled to
qualified immunity. The wrongful act here alleged is the
administration of medical care to Hall; this is a discretionary
function. “[G]overnment officials performing discretionary
functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). To determine “reasonableness” for purposes of this
standard, we look to the legal rules that were clearly
established at the time of the alleged violation. Anderson v.
Creighton, 483 U.S. 635, 639 (1987). “Objective reasonableness
is a matter of law for the courts to decide[.]” Williams v.
Bramer, 180 F.3d 699, 702 (5th Cir. 1999).
Under Siegert v. Gilley, 500 U.S. 226 (1991), we must apply
a two pronged test to ascertain the viability of a defendant’s
assertion of qualified immunity. First, we must examine whether
Hall has pleaded an ADA violation. See id. at 232; see also
Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998). The district
court found that Hall had not stated a claim under the ADA. We
agree. At no place in the complaint does Hall allege that a
defendant’s specific, individual conduct discriminated against
him because of his disability. In fact, Hall claims that an
unserved defendant, Deputy Sheriff Marcorif Thomas, mistakenly
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indicated that Hall was not disabled (or, at least, not as
disabled as he was) upon his admission to HCJ in February, 1995.
Thus, any alleged discriminatory conduct could not have been
“because of” Hall’s disability, since the relevant actors were
not apprised of Hall’s status as a disabled person.
Even if Hall had stated a claim under the ADA, however, the
defendants would still be entitled to qualified immunity. Under
the second prong of the Siegert test, we must ask whether the
defendants’ conduct was objectively reasonable in light of
“clearly established” law at the time of the alleged violation.
Siegert, 500 U.S. at 231-32; see also Evans v. Ball, 168 F.3d
856, 860 (5th Cir. 1999). The clearly established law prior to
Yeskey did not include the principle that the ADA applied to
prisons because neither the Fifth Circuit nor the Supreme Court
had spoken on the issue. See Gunaca v. State of Texas, 65 F.3d
467, 475 (5th Cir. 1995) (“The right . . . was not clearly
established at the time [defendant] allegedly violated it because
neither the Fifth Circuit nor the Supreme Court had addressed
[it.]”). Moreover, a circuit split existed on the very question.
Compare, e.g., Crawford v. Indiana Dep’t of Corrections, 115 F.3d
481, 487 (7th Cir. 1997) (ADA applies to prisons) with Amos v.
Maryland Dep’t of Pub. Safety and Correctional Servs., 126 F.3d
589, 601 (4th Cir. 1997), judgment vacated by 118 S. Ct. 2339
(1998) (ADA does not apply to prisons). And we have consistently
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and “decisively rejected the retroactive application of new legal
standards to . . . claims involving qualified immunity.” Harper
v. Harris County, Texas, 21 F.3d 597, 601 (5th Cir. 1994).
Therefore, Hall’s right to be free from discrimination on the
basis of his disability in prison was not clearly established at
the time of the alleged violations, and the defendants could not
reasonably have known that their actions might incur liability
under the ADA. For these reasons, the defendants are entitled to
qualified immunity, and we therefore affirm the decision of the
district court on this point.
IV. The § 1983 Claim
Hall argues that his complaint states an Eighth Amendment
claim because it alleges that the medical staff failed to
administer 180 doses of his seizure medicine over a one year
period, and that such a lapse evinces deliberate indifference to
a serious medical need.2 Hall further complains that Drs.
Chassay and Luu unethically doubled his dosage to compensate for
the missed medication. The doctors counter by arguing that Hall
himself refused to take his seizure medication on 28 separate
occasions, and, at other times, refused to appear when the nurse
2
Since Hall did not argue on appeal that the medical treatment he
received for his chronic kidney ailment, his orthopedic pain or his diabetes
constituted deliberate indifference to a serious medical need, he has
abandoned any claims he had with respect to these matters. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (“[Appellant] has abandoned
these arguments by failing to argue them in the body of his brief.”).
7
arrived to dispense the medication. The doctors also argue that
the double dosages of medication were not dangerous, that they
adequately monitored Hall’s progress on the medicine, and that no
evidence suggests that Hall was ever over-medicated.
The district court found that Hall’s allegations, even if
true, did not describe deliberate indifference to a serious
medical need. We agree. “To violate the Cruel and Unusual
Punishment Clause, a prison official must have a ‘sufficiently
culpable state of mind.’” Farmer v. Brennan, 511 U.S. 825, 834
(1994) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “In
prison-conditions cases that state of mind is one of ‘deliberate
indifference’ to inmate health or safety.” Id. “Deliberate
indifference to serious medical needs of prisoners,” for
instance, “constitutes the ‘unnecessary and wanton infliction of
pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble,
429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153,
173 (1976), order vacated by 429 U.S. 875 (1976)). To be
deliberately indifferent, a prison official must “know[] of and
disregard[] an excessive risk to inmate health or safety[.]”
Farmer, 511 U.S. at 837; see also Stewart v. Murphy, 174 F.3d
530, 533 (5th Cir. 1999). For this reason, allegations of
malpractice or negligence will never state a claim under the
Eighth Amendment. See Estelle, 429 U.S. at 105 (“[A] complaint
that a physician has been negligent in diagnosing or treating a
8
medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment.”); see also Stewart, 174
F.3d at 534 (“[A]lthough inadequate medical care may, at a
certain point, rise to the level of a constitutional violation,
malpractice or negligent care does not.”).
The summary judgment evidence reveals that Hall refused to
take his seizure medicine on 28 occasions. Moreover, Dr. Seale
testified that the efforts of Drs. Chassay and Luu to bring
Hall’s medication levels within therapeutic limits were not
dangerous, and that Hall was not over-medicated. Dr. Seale
further testified that even if the nurses were intentionally
refusing to dispense the seizure medication to Hall–a contention
that Dr. Seale vigorously opposed–the doctors Hall sued were not
responsible for these acts, since such conduct would have been in
clear contravention of the prison’s policy and the doctors’
mandate. Finally, at a doctor’s appointment on June 4, 1996,
Hall told Dr. Phi that he had “no complaints” with his seizure
medication. Hall also confided that his last seizure occurred
eight months prior, presumably in November, 1995, a month in
which Hall refused to take his seizure medication for two days in
a row. In response to this testimony, Hall cites only his own
conclusory pleadings. Yet Hall’s subjective complaints,
unsupported by evidence, are insufficient to defeat the doctors’
summary judgment evidence. See Morris v. Covan World Wide
9
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (“[T]he nonmoving
party may not rest upon the mere allegations or denials of its
pleading, and unsubstantiated or conclusory assertions that a
fact issue exists will not suffice.”).
The overwhelming evidence demonstrates that Hall had access
to his doctors, who prescribed a helpful medication, the dosage
of which varied, at least in part, because of Hall’s own conduct.
Any additional causes for Hall missing his seizure medication
cannot be attributed to Hall’s doctors. And despite the lower
dosages, Hall was seizure free between November 1995 and June
1996. He even told his doctors he had “no complaints.” This is
simply not a scenario consistent with deliberate indifference to
a serious medical need. At its most egregious, Hall’s evidence
may suggest negligence, but that is insufficient to support an
Eighth Amendment claim. We therefore agree with the district
court and affirm its grant of summary judgment to the doctors.
V. Conclusion
The district court erred in finding that the ADA did not
apply to prisons, but we AFFIRM because the defendants are
entitled to qualified immunity. Moreover, we AFFIRM the grant of
summary judgment to the doctors because Hall did not present
evidence of facts consistent with a deliberate indifference to a
serious medical need.
10
AFFIRMED
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