Case: 14-20257 Document: 00513120264 Page: 1 Date Filed: 07/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20257 FILED
Summary Calendar July 17, 2015
Lyle W. Cayce
Clerk
DONALD LEMPAR,
Plaintiff-Appellant
v.
BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice; ALLEN HIGHTOWER, Executive Director, Texas Department of
Criminal Justice; GLENDA ADAMS, M.D., North Region Medical Director,
University of Texas Medical Branch - C.M.H.C. Division; BOBBY VINCENT,
Medical Director, Estelle Unit; MYRA WALKER, Chief of the Office of
Professional Services; GUY SMITH, in his individual capacity; OWEN
MURRAY, Vice President, University of Texas Medical Branch; SONIE
MANGUM, Practice Manager Huntsville Unit, University of Texas Medical
Branch; ROBERT DALECKI, Practice Manager Huntsville Unit, University of
Texas Medical Branch; JAMIE WILLIAMS, Practice Manager Estelle Unit,
University of Texas Medical Branch; ERNESTINE JUYLE, Primary Care
Provider, Estelle and Huntsville Units; DENNIS GORE, General Surgeon;
VALERIE BAUER, Colon/Rectal Surgeon; INTERN GARZA, Surgical Intern;
KATHERINE PEARSON, Nurse Practitioner; D. A. RUBY, Nurse Practioner;
CHARLES NAGEL, Physicians Assistant; CHERYL EGAN, Physicians
Assistant; LESTER FINDLEY, Nurse, Estelle Unit, University of Texas
Medical Branch; LISA HORTON, Nurse, Estelle Unit, University of Texas
Medical Branch; MARTIN OAKLEY, Nurse, University of Texas Medical
Branch; CAROLYN HICKS, Nurse, Huntsville Unit, University of Texas
Medical Branch; TSUNG-LIN ROGER TSAI, Resident Doctor; SERGEANT
DONNA CLEMENT, Security Officer,
Defendants-Appellees
Case: 14-20257 Document: 00513120264 Page: 2 Date Filed: 07/17/2015
No. 14-20257
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-2983
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Donald Lempar, Texas prisoner # 1284244, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 complaint alleging deliberate
indifference to his serious medical needs. He contends that he received
constitutionally inadequate treatment for an anal fistula. We affirm.
We review a district court’s ruling on summary judgment de novo,
employing the same standard used by the district court. McFaul v. Venezuela,
684 F.3d 564, 571 (5th Cir. 2012). A district court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). Where, as in the instant case, the appellees have raised
the issue of qualified immunity, the typical summary judgment burden of proof
is altered in that once the defense is pleaded by an official, the burden shifts
to the plaintiff to rebut the defense by establishing a genuine fact issue as to
whether the official’s allegedly wrongful conduct violated clearly established
federal law. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). It is the
plaintiff’s burden to negate qualified immunity; however, all inferences are
drawn in his favor. Id.
* 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.
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The defense of qualified immunity has two prongs: (1) whether an
official’s conduct violated a plaintiff’s constitutional rights and (2) whether that
right was clearly established at the time of the violation. Id. As an inmate,
Lempar had a clearly established Eighth Amendment right not to be denied,
by deliberate indifference, attention to his serious medical needs. See Gobert
v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). A prison official acts with
deliberate indifference only if “the official knows of and disregards an excessive
risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(emphasis in original); see Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994).
The plaintiff must establish that the defendants “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. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001) (internal quotation marks and citation omitted).
Lempar’s argument that the district court misapplied the summary
judgment standard is without merit. Our exhaustive review of the medical
evidence in this case establishes that the appellees were not deliberately
indifferent to Lempar’s serious medical needs. Lempar’s complaint that his
course of treatment fell below the applicable standard of care is not supported
by the record evidence. His subjective belief that he is suffering from a complex
anal fistula with multiple tracts that requires specialized treatment and
reparative surgery is not borne out by the medical evidence.
There is no disputed fact question that, when resolved in Lempar’s favor,
rises to the level of deliberate indifference. Not only was Lempar consistently
treated for his conditions, the appellees discussed his care with his family, in
person and via letters, and referred him to a board-certified colorectal surgeon,
who after two exploratory surgeries found no evidence that he was suffering
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No. 14-20257
from a complex anal fistula or that he required specialized treatment.
Lempar’s complaints about the quality of wound care, the types of dressings
used, and the availability of sitz baths constitute a disagreement over the
treatment he received, which does not rise to the level of deliberate
indifference. See Gobert, 463 F.3d at 346. Insofar as Lempar contends that
evidence of his noncompliance with certain of the medical recommendations
has been fabricated or falsified by the appellees, these are conclusional
allegations and unsubstantiated assertions, which do not create a fact issue on
summary judgment. See Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006).
As there is no evidence of a constitutional violation, we uphold the
district court’s determination that those appellees sued in their individual
capacities were entitled to qualified immunity. See Brown, 623 F.3d at 253.
Those appellees sued in their official capacities similarly have no liability and
were entitled to summary judgment. See Mayfield v. Texas Dep’t of Criminal
Justice, 529 F.3d 599, 604 (5th Cir. 2008).
AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF DENIED.
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