United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 26, 2004
Charles R. Fulbruge III
No. 03-40274 Clerk
SALLY HART, Independent Executrix of the Estate of Joseph L.
Hall,
Plaintiff-Appellee,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; ET AL,
Defendants,
GLENDA M. ADAMS, M.D.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(G-02-CV-211)
--------------------
Before DAVIS, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Glenda M. Adams, M.D. (“Dr. Adams”)
appeals the district court’s denial of summary judgment. Texas
prison inmate Joseph Hall originally brought suit in the district
court alleging that Dr. Adams, in her capacity as Eastern Regional
Medical Director, University of Texas Medical Branch Correctional
Managed Care (“UTMB”), violated his Eighth Amendment right to
adequate medical care by demonstrating deliberate indifference to
*
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this opinion should not be published and is not precedent except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.
the serious medical needs of inmates, including himself.1 In the
district court, Dr. Adams filed a motion for summary judgment based
on qualified immunity, which motion the court denied. We dismiss
this appeal, based on our conclusions that (1) Hall has alleged a
violation of a clearly established constitutional right, and (2)
any decision on whether Dr. Adams’s conduct was objectively
unreasonable turns on a genuine dispute about issues of material
fact, which we have no jurisdiction to consider at this stage of
the action.
I. Facts and Proceedings
The three individuals most intimately involved with this case
were all associated with the Texas Department of Criminal Justice
(“TDCJ”) at the time that the incidents giving rise to the lawsuit
took place. Hall was an inmate at the Wynne Unit of the TDCJ; Dr.
Curtis Kovacs (“Dr. Kovacs”) was the acting Medical Director at the
Wynne Unit; and Dr. Adams was UTMB’s Eastern Regional Medical
Director and, in that capacity, was Dr. Kovacs’s superior.
In October 1997, Dr. Kovacs noticed a suspicious nodule in one
of Hall’s lungs when reviewing Hall’s annual chest x-ray at the
Wynne Unit. Dr. Kovacs recommended that Hall be referred to a
facility at which he could receive a CAT scan. This would require
1
Hall died in April 2003 and the executrix of his estate,
Sally Hart, has continued his lawsuit. Because the central
allegations made in the district court revolve around Hall and the
time he spent as an inmate in the Texas Department of Criminal
Justice, however, this opinion refers to Hall as the plaintiff.
2
that Hall be transferred to the Estelle Unit in Galveston
(“Estelle”), where appropriate facilities were located. Dr. Adams
approved Dr. Kovacs’s CAT scan referral for Hall in late October.
Corrections officers attempted to effect Hall’s transfer in
December 1997, but when they arrived at Hall’s cell at
approximately 10:30 pm, they could provide him no information
regarding why he was being “chained out” to Estelle. Hall
testified that, because going to Estelle would require a full
transfer, with a change in living conditions and potential loss of
privileges, he went to the infirmary to inquire as to the reason
for the transfer, but received no information there either. As
neither the officers nor the infirmary personnel could tell Hall
why he was being transferred, he declined unspecified medical
treatment rather than accept the transfer to Estelle. No follow-up
was ever pursued, by either Dr. Kovacs or Dr. Adams, so Hall never
received the CAT scan.
During his tenure as acting Medical Director of the Wynne Unit
(January 1997 to May 1998), Dr. Kovacs consistently complained to
Dr. Adams about the prisoner referral and transfer system. In Dr.
Kovacs’s opinion, as expressed in several personal conversations he
had with Dr. Adams and in monthly reports that he prepared and
furnished to her, the system was failing: Many inmates failed to
receive needed medical care as a direct result of problems and
deficiencies in the referral and transfer system. Dr. Kovacs
indicated in several reports that transfer refusals by inmates
3
(generally because of the Estelle Unit’s reputation for poor living
conditions) presented a continuing health problem. Dr. Kovacs also
proposed changes that he thought might correct the problems arising
out of refused or otherwise failed transfers, but his suggestions
were rejected.
Dr. Kovacs’s actions —— and Dr. Adams’s responses (and non-
responses) to them —— are at the heart of the instant suit. Hall
alleges that Dr. Kovacs made Dr. Adams aware of serious problems
with the referral system that Dr. Kovacs considered were
endangering patients’ lives, and that Dr. Adams’s intentional
refusal to address these problems constituted deliberate
indifference to the health and safety of inmates. Hall contends
that Dr. Adams’s actions towards inmates in general deprived him of
his constitutional right to adequate medical care under the Eighth
Amendment, regardless of the fact that she did not personally block
his access to medical care.
After his release from prison in August 2001, Hall was
diagnosed with lung cancer and was told that he had approximately
one year to live. The cancer spread to his skeletal system,
requiring the amputation of one leg. Hall died in April 2003.
II. Analysis
A. Jurisdiction
4
The courts of appeals have jurisdiction to hear appeals from
“final decisions” of the district courts.2 Although this is an
interlocutory appeal, we have jurisdiction to review denials of
summary judgments seeking qualified immunity under the “collateral
order” doctrine, as explained by Mitchell v. Forsyth.3 Because
qualified immunity implicates the right not to stand trial, denial
of a qualified immunity claim is final in that the right to avoid
trial altogether cannot be vindicated by later appeal.4 Our
jurisdiction in such cases is not unlimited, however. As the
qualified immunity analysis is “significantly different from the
questions underlying [a] claim on the merits,” and questions of
“evidence sufficiency” are not appealable,5 we may only review a
denial of qualified immunity “to the extent that it turns on an
issue of law.”6
Our case law has adhered to these principles. As we explained
in Cantu v. Rocha, interlocutory appeals are based on an issue of
law —— and therefore appealable —— “when they concern only
application of established legal principles, such as whether an
official’s conduct was objectively reasonable in light of clearly
2
28 U.S.C. § 1291.
3
472 U.S. 511 (1985).
4
See Mitchell, 472 U.S. at 526-27.
5
Johnson v. Jones, 515 U.S. 304, 314 (1995).
6
Mitchell, 472 U.S. at 530.
5
established law, to a given (for purposes of appeal) set of
facts.”7 Although we will consider only undisputed facts when
deciding such legal issues, a defendant may argue that sufficient
undisputed facts exist to establish immunity.8
This is essentially what Dr. Adams argues in the instant case,
despite the district court’s asserted rationale for denying
qualified immunity, made clear in its response to Dr. Adams’s
Motion to Reconsider: “This Court ... remains of the opinion, ...
that ... there are ‘genuine’ issues of fact in dispute and that
those factual issues are ‘material’ ....” As we summarized this
problem in Bazan v. Hidalgo County, even questions of law such as
whether a defendant’s actions are objectively reasonable “cannot be
decided if there are genuine issues of material fact.”9 We
therefore have jurisdiction over the instant case to the extent,
but only to the extent, that no underlying factual issues exist.
B. Standard of Review
We review a district court’s decision on summary judgment de
novo, applying the same standard as did the district court.10
7
77 F.3d 795, 802 (5th Cir. 1996) (emphasis added).
8
See, e.g., Hart v. O’Brien, 127 F.3d 424, 436 (5th Cir.
1997)(abrogated by the Supreme Court on other grounds, see Spivey
v. Robertson, 197 F.3d 772 (5th Cir. 1999)).
9
246 F.3d 481, 490 (5th Cir. 2001) (emphasis in original).
10
See, e.g., Allen v. Rapides Parish Sch. Bd., 204 F.3d 619,
621 (5th Cir. 2000); McDaniel v. Anheuser-Busch, Inc., 987 F.2d
298, 301 (5th Cir. 1993).
6
C. Qualified Immunity
Our review of denials of qualified immunity comprises a two-
pronged inquiry: “(1) under existing law, does the plaintiff allege
a violation of an actual, clearly established constitutional or
federal statutory right; and (2) if so, was the defendant’s conduct
objectively unreasonable in the light of clearly established law
at the time of that conduct.”11 Despite the district court’s
assertion that its denial of qualified immunity was based on
genuine issues of material fact, we have jurisdiction to review
questions of law, including “(1) ‘the issue of whether and when a
right is clearly established’; and (2) ‘to the extent that the
relevant discrete, historic facts are undisputed, ... the question
of the objective unreasonableness of the defendant’s conduct.’”12
Dr. Adams asserts that the district court erred in its decisions on
both these questions.
1. Was the right clearly established?
Dr. Adams insists that even though the general right to
adequate medical care was clearly established at the time that the
events giving rise to this lawsuit occurred, the “exact contours”
of that right were not. Dr. Adams contends that because the
contours of the right were ill-defined, a public official in her
11
Felton v. Polles, 315 F.3d 470, 473 (5th Cir. 2002)
(emphasis in original).
12
Id. at 478 (quoting Pierce v. Smith, 117 F.3d 866, 871 (5th
Cir. 1997).
7
position could not have known that the alleged actions violated
that right. For support, Dr. Adams cites Thompson v. Upshur
County, in which we explained that “[w]hen assessing the scope of
clearly established law ... it is necessary to articulate the
asserted constitutional right more specifically.”13 Dr. Adams also
relies on Sorenson v. Ferrie, which contains similar language:
“[F]or qualified immunity to be surrendered, pre-existing law must
dictate, that is, truly compel ... the conclusion ... that what
defendant is doing violates federal law in the circumstances.”14
Given this precedent and the unique fact pattern of the instant
case, Dr. Adams argues that finding a clearly defined
constitutional right here would be to dictate “that a prison
official has an affirmative duty to identify an inmate who refuses
a referral to a medical specialty clinic and to assure that his
appointment is rescheduled.”
We disagree with Dr. Adams’s assessment and her unduly narrow
definition of the right at issue here. As we explained in
Sorenson, “it is not necessary ... that the plaintiff point to a
previous case that differs only trivially from his case,” but
rather that the cited precedent be “materially similar.”15 Contrary
13
245 F.3d 447, 460 (5th Cir. 2001).
14
134 F.3d 325, 330 (5th Cir. 1998) (emphasis in original)
(quoting Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997)).
15
Sorenson, 134 F.3d at 330 n.11 (5th Cir. 1998) (emphasis in
original) (quoting Pierce v. Smith, 117 F.3d 866, 882 (5th Cir.
1997)).
8
to Dr. Adams’s suggestion, the Supreme Court’s most recent
articulation of what it means for a right to be “clearly
established” —— which articulation we subsequently adopted16 ——
confirms that the exact fact pattern of the case under review need
not be found in prior case law.17
In that case —— Hope v. Pelzer, a post-Upshur County case
which the dissent here does not address —— the Supreme Court
explained that for a constitutional right to be clearly
established,
its contours “must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right. This is not to say that an
official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful ... but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.”18
16
See Roe v. Texas Dep’t of Protective and Regulatory Servs.,
299 F.3d 395, 408-09 (5th Cir. 2002).
17
Actually, Upshur County’s “specificity” language appears to
be inapplicable to the “clearly established” prong. Upshur County
discussed specificity only in the context of the second prong ——
whether the defendants’ conduct in that case was objectively
unreasonable —— which, as we discuss in Part II.C.2 infra, we
cannot reach in the instant case for lack of jurisdiction. As to
the question whether the plaintiff in Upshur County had alleged a
violation of a clearly established right, that panel explained that
an allegation that defendants “were deliberately indifferent to the
serious health needs of [plaintiff] and ... promulgated or failed
to promulgate policies that manifest their deliberate indifference
toward the serious medical needs of their detainees. ... satisfied
[plaintiffs’] burden to allege, at a high level of generality, a
constitutional violation.” 245 F.3d 447, 459 (5th Cir. 2001).
This language supports our conclusion that Hall has alleged a
violation of a clearly established right.
18
536 U.S. 730, 739 (2002) (emphasis added) (internal citation
omitted)(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
9
In Hope the Court further clarified that, in general, prior
precedent must give state officials “reasonable warning” that a
particular course of conduct violates a constitutional right, and
cited precedent indicating that “general statements of the law are
not inherently incapable of giving fair and clear warning.”19 The
Hope Court specifically noted that “officials can still be on
notice that their conduct violates established law even in novel
factual circumstances.”20 The Court noted further that, previously,
in United States v. Lanier,21 it had rejected a requirement that
prior case law be “fundamentally similar.”
In fact, the Hope Court’s discussion of “clearly established”
constitutional rights casts serious doubt on the continued
viability of the rigid standard laid down in Pierce v. Smith22 and
Thompson v. Upshur County.23 In Hope, the Supreme Court expressly
disapproved of Eleventh Circuit precedent requiring that “the facts
of previous cases be ‘materially similar’” to the situation before
the reviewing court, explaining that “[t]his rigid gloss on the
qualified immunity standard ... is not consistent with our cases.”24
19
Hope, 536 U.S. at 741 (emphasis added) (quoting United
States v. Lanier, 520 U.S. 259, 271 (1997).
20
Hope, 536 U.S. at 741.
21
520 U.S. 259 (1997).
22
117 F.3d 866 (5th Cir. 1997).
23
245 F.3d 447 (5th Cir. 2001).
24
Hope, 536 U.S. at 739 (footnote omitted).
10
This is significant because Pierce, the foundation of our own rigid
standard on the “clearly established law” question, itself borrowed
that standard from Lassiter v. Alabama A&M University, Board of
Trustees25 —— a case specifically noted by the Hope Court as being
inconsistent with Supreme Court precedent.26 Thus, Hope pushes us
toward a more general description of the constitutional right at
issue both by describing a level of specificity lower than that we
have used in the past, and by undermining the case law that
originally established the more rigid standard and thereby eroding
the foundations of our precedent on this point.
It is in this context that we must consider whether the right
at issue in the instant case was “clearly established.” As we must
take the facts in the light most favorable to the non-movant,27 the
real question is whether a public official in charge of inmate
medical care may ignore system-wide problems —— especially when
they are repeatedly brought to her attention by another similarly
credentialed public official —— that threaten the health and safety
of inmates, thereby (as Hall has alleged) knowingly, i.e.
consciously, pursuing a path of complete inactivity ——
affirmatively deciding to do nothing —— in the face of these
problems. We must ask rhetorically whether the more general
25
28 F.3d 1146 (11th Cir. 1994).
26
See Hope, 536 U.S. at 739.
27
See, e.g., Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.
1999).
11
formulations of the Eighth Amendment right to adequate medical care
give “fair and clear warning” that such inaction is impermissible,
despite the “novel factual circumstances” of the instant case. We
think that they do.
In Farmer v. Brennan, the Supreme Court explained that a
prison official who “knows of and disregards an excessive risk to
inmate health or safety” demonstrates deliberate indifference and
can be held liable under the Eighth Amendment.28 This general
formulation is the baseline for these types of claims, and was
clearly established by 1997. According to Hall’s summary judgment
evidence and reasonable inferences therefrom, Dr. Adams’s conduct
falls squarely within that framework. Before the district court,
and again in his appellate brief, Hall alleged that (1) Dr. Adams
was repeatedly put on notice, by another physician, that the inmate
transfer referral system was “so inadequate that inmates were being
put in serious danger,” yet (2) she “refused to address” those
problems. Any suggestion that the inmates were not being put in
serious danger raises a question of “‘evidence sufficiency,’ i.e.,
which facts a party may, or may not, be able to prove at trial,”
which is not appealable at this stage of the litigation.29
28
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
29
Johnson v. Jones, 515 U.S. 304, 313 (1995).
12
Taking Hall’s allegations as true, as we must at for summary
judgment purposes,30 there is no appreciable difference between
these allegations and the general framework provided by, for
example, Farmer v. Brennan. Therefore, just as in Upshur County,
Hall has satisfied his “burden to allege, at a high level of
generality, a constitutional violation.”31 Were we to define the
right at issue as narrowly as Dr. Adams urges, we would, in effect,
be freezing the law as it exists today. No plaintiff could ever
successfully allege a violation of a constitutional right, as long
as the violation was perpetrated in even a slightly new and unusual
way. This appears to be exactly the situation about which the Hope
Court was concerned.
It is true that Hall must produce some evidence to support his
allegations; and evidence that is “so weak or tenuous on an
essential fact that it could not support a judgment” will not
suffice.32 It is also true that mere disagreement among the parties
30
See, e.g., Colston v. Barnhart, 130 F.3d 96, 98-99 (5th Cir.
1997): “The district court’s determination that fact issues were
presented that precluded summary judgment does not necessarily deny
us jurisdiction ... We can determine as a matter of law whether
Barnhart is entitled to qualified immunity after accepting all of
Colston’s factual allegations as true.” (emphasis added) (internal
citation omitted).
31
Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir.
2001).
32
Alton v. Tex. A&M Univ., 168 F.3d 196, 199 (5th Cir. 1999).
13
as to the facts will not prevent summary judgment.33 In the instant
case, however, Hall has carried his burden on this point. The
summary judgment evidence produced at trial demonstrates that (1)
Dr. Kovacs produced monthly reports that documented, inter alia,
transfer and referral system problems that negatively affected
patient care, (2) Dr. Kovacs personally discussed these problems
with Dr. Adams on at least one occasion, and (3) Dr. Kovacs
complained on more than one occasion, to Dr. Adams as well as other
officials, that Dr. Adams was continuing to do nothing about these
systemic problems and that inmate care was being severely
undermined as a result.34 Indeed doing nothing in the face of
express knowledge of a deleterious situation is quintessential
deliberate indifference.
We note in passing that many of the problems highlighted by
Dr. Kovacs would appear (to a layperson, at least) to be serious
enough to affect patient care significantly. Additionally, in a
letter to Dr. Rochelle McKinney, a copy of which was sent to Dr.
Adams, Dr. Kovacs “admit[ted] to a great deal of frustration trying
33
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
34
In more than one monthly report, Dr. Kovacs complained that
“no one seems to care enough to want to help. Only solution seems
to be even more prayer.” In a letter to Dr. Adams, Dr. Kovacs
asserted that “[w]henever I ask for your help it is ignored,” and
he repeated that allegation in a letter to Dr. Rochelle McKinney
(to which Dr. Adams was carbon-copied): “[w]henever I ask ... Dr.
Adams ... for help ... there is no response, .... I am not
unwilling to accept more work in the pursuit of adequate
healthcare.”
14
to get adequate and timely care for [his] patients,” which clearly
implies that the care he was able to give at that point was
inadequate. Although this is not the appropriate time to assess
the strength of Hall’s factual allegations, we mention this in the
context of whether the right to medical care (as that right is
implicated here) was “clearly established”; that is, whether the
risks that Dr. Adams ignored can fairly be said to have been
“excessive.” In the instant case, Hart has produced summary
judgment evidence that adequately alleges an excessive risk. At
least, this is a factual question to be decided at trial.35
2. Was Dr. Adams’s conduct objectively unreasonable?
Dr. Adams also says that she took “some steps” to combat the
problems highlighted by Dr. Kovacs, and that this fact alone
precludes a finding of deliberate indifference.36 Furthermore,
contends Dr. Adams, her assertions on remedial action are
“undisputed” by Hall. This second statement is flatly inaccurate.
Hall has always insisted that Dr. Adams did nothing to address the
problems detailed by Dr. Kovacs; and, as we have indicated, there
is summary judgment evidence that supports his contention. This
dispute is genuine and the fact disputed is certainly material.
35
See note 29, supra, and accompanying text.
36
See, e.g., Southard v. Texas Bd. of Crim. Justice, 114 F.3d
539, 554 (5th Cir. 1997) (discussing why a defendant could
successfully assert qualified immunity, we noted that he “did not
simply ignore the complaints .... Instead, [he] took some steps
.... Even if those steps were ‘ineffectual,’ they do not
demonstrate deliberate indifference.”).
15
Furthermore, many of the actions that Dr. Adams contends she took
could not have been in response to Dr. Kovacs’s complaints, which
are the foundation of the instant suit. For example, Dr. Adams
argues that authoring a 1996 report and requiring the monthly
status reports involved in this case are indicators of her response
to the problems identified by Dr. Kovacs. But, the 1996 report was
written more than a year before the events giving rise to this
lawsuit and six months before Dr. Kovacs became acting Medical
Director. Disregarding for a moment that, at oral argument, Hall
contested Dr. Adams’s assertion that she “required” them, Dr.
Kovacs’s monthly reports were the very means by which he informed
Dr. Adams of the problems at issue. Thus, neither action could
have been in response to Dr. Kovacs’s complaints and could not
affect the substance of Hall’s allegations.
As the parties have produced conflicting summary judgment
evidence on what actions Dr. Adams did or did not take in response
to the problems highlighted by Dr. Kovacs, a genuine question of
fact exists here. We have no jurisdiction to consider such genuine
disputes at this stage of the proceedings. As noted, we may only
review denials of summary judgment “to the extent that [a denial]
turns on an issue of law.”37 As regards this facet of Dr. Adams’s
appeal —— that is, whether her conduct was objectively unreasonable
—— the district court’s decision does not “concern only application
37
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
16
of established legal principles ... to a given (for purposes of
appeal) set of facts.”38 Instead, the parties disagree about what,
exactly, the defendant did. Clearly, this is an underlying
“genuine issue[] of material fact,” which precludes our
consideration of this point.39
III. Conclusion
Because we conclude that (1) Hall has alleged a violation of
a clearly established constitutional right, and (2) the
determination whether Dr. Adams’s actions were objectively
unreasonable turns on genuinely disputed questions of material
fact, thereby depriving us of jurisdiction to consider that part of
the appeal, this appeal is
DISMISSED.
38
Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996) (emphasis
added).
39
Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001).
Compare Hart v. O’Brien, 127 F.3d 424, 436 (5th Cir.
1997)(explaining that because “[t]he parties did not disagree over
whether the officials had engaged in [the] conduct,” the court
could consider whether that conduct was unreasonable as a matter of
law.)
17
W. Eugene Davis, Circuit Judge, dissenting.
Because I believe Dr. Adams is entitled to qualified immunity
as a matter of law, I dissent.
I.
This case boils down to a disagreement between Dr. Kovacs, the
acting Medical Director of the Wynne Unit where Hall was
incarcerated (and whose testimony plaintiff relies on) and the
defendant, Dr. Adams, the Regional Medical Director, who was in
charge of medical care for inmates incarcerated in prisons in a
multi-county region including the Wynne unit. When an x-ray of
Hall’s lungs showed an abnormality that needed further
investigation, Kovacs got permission from Dr. Adams to refer Hall
to a medical specialist at the medical unit located at the Estelle
Unit in Galveston. Arrangements were made to transfer Hall to the
Estelle Unit for this medical examination and Hall refused the
referral and signed a form acknowledging this refusal. When a
tumor developed several years later and Hall died, his survivor
complains that the defendant is responsible for administering a
system which permitted Hall to fall through the cracks so that
further consideration was not given to a follow-up referral.
It is true that Dr. Kovacs complained long and loud to Dr.
Adams about many features of prison medical care offered to the
inmates. The only complaint that is relevant to this case is his
argument that a better tracking system (preferably computerized)
should have been put in place to track appointments and make sure
that an inmate who missed an appointment would not get lost in the
system and assure that the necessary follow-up action could be
taken.
Dr. Adams did not ignore Dr. Kovacs’s complaint and
recommendation for an improved tracking system. The summary
judgment record reflects that she responded to his complaint by
making it clear that she believed the most efficient and effective
system was for the physician at the local prison unit to maintain
control over tracking missed appointments. In light of the
correspondence between Drs. Kovacs and Adams in the record, Hall’s
statement in his affidavit that Dr. Adams ignored Dr. Kovacs’s
complaint about an improved computerized tracking system apparently
meant that Dr. Adams did not comply with Dr. Kovacs’s
recommendation.
The plaintiff complains about a number of other deficiencies
in the prison medical system such as the deplorable living
conditions in the medical unit in Galveston where Hall was to be
transferred for his referral examination. Apparently the
substandard living conditions in the Estelle Unit, as compared to
the Wynne Unit, are the reason Hall declined the transfer and the
referral examination. Dr. Adams, as Regional Medical Director, had
no control over the prison conditions at the Estelle Unit in
Galveston and the majority does not find otherwise.
II.
19
A.
First, Hall’s summary judgment evidence fails to establish any
nexus between the allegedly flawed policy and his injury. The
tracking system that was in place worked. Dr. Kovacs initiated the
process when he made the clinical decision to refer Hall for the CT
scan. Dr. Adams approved the CAT scan referral. When Hall refused
the referral, TDCJ policy provided for physician review to
determine whether further action was indicated. Under that policy,
it was up to the local unit physician to make a clinical decision
whether or not to reschedule an appointment. Lloyd Ashberger, a
physician’s assistant on Dr. Kovacs’s staff was given Hall’s chart
on December 5, 1997, the day after Hall refused the referral on
December 4. Mr. Ashberger noted in Hall’s chart that no
appointment would be rescheduled until approved by the unit
physician consistent with TDCJ policy. He recommended the
alternative of repeating the x-ray on Hall’s next clinic visit in
lieu of the CT scan. A repeat x-ray was made approximately one
year later and no change was observed in the nodule and no referral
was recommended by the radiologist. So Hall’s case did not fall
though the cracks. His refusal to accept the referral was called
to the attention of the Wynne Unit medical staff the very next day
and the staff exercised their judgment about the appropriate action
to take.
Also, the record reveals that it was not uncommon for Hall to
refuse a referral to Galveston for medical evaluation. From
20
October 1993 to August 2001, Hall was referred to Galveston seven
times for various complaints and he refused to go on the last five
referrals. On the June 7, 2001 referral, Hall refused to go for a
pulmonary evaluation even after he was counseled and urged to go
following a determination that he had a five centimeter density in
his right lung and was coughing up blood. Accordingly, a reasonable
fact finder could not infer that Hall would have kept an
appointment in 1997 or 1998 when he had no symptoms and when x-ray
findings were much less significant. Thus, the alleged flawed
policy did not cause Hall to go untreated or cause any right he
might have to be violated. Thompkins v. Belt, 828 F.2d 298, 304
(5th Cir. 1987).
B.
I also disagree with my colleagues that the summary judgment
evidence reveals conduct by Dr. Adams that was unreasonable in
light of clearly established law.
Identifying the specific conduct of the defendant that the
plaintiff complains of is critical because it is that conduct that
must be examined to determine whether the defendant’s acts were
objectively reasonable in light of clearly established law. As
Judge Garwood stated in Thompson v. Upsur County, 245 F.3d 447 (5th
Cir. 2001), “when a defendant moves for summary judgment based on
qualified immunity, it is the plaintiff’s burden to demonstrate
that all reasonable officials similarly situated would have then
known that the alleged acts of the defendants violated the United
21
States Constitution.” (Id. at 460, emphasis added). As stated
above, the conduct of the defendant the plaintiff complains of is
Dr. Adams’s failure to comply with Dr. Kovacs’s request to
implement an improved tracking system instead of relegating this
function to the local unit medical director. Thus, unless all
reasonable jail officials would recognize the unconstitutionality
of implementing a system for tracking medical appointments for
inmates under the supervision of the medical director in each
prison unit rather than putting in place a computerized system then
Dr. Adams actions were objectively reasonable. Given the absence
of even a single case constitutionally requiring the implementation
of any particular type of tracking system, it cannot be said that
all reasonable jail officials would recognize the
unconstitutionality of Dr. Adams’ actions.40
C.
Finally, Dr. Adams’s decision to track transfers on a local,
rather than systemwide basis, does not amount to deliberate
indifference toward the medical needs of inmates subject to the
system. Dr. Adams’ communication with Dr. Kovacs clearly reflects
that she considered his proposed solution and simply disagreed with
it. In order to demonstrate deliberate indifference, “the official
must both be aware of facts from which the inference could be drawn
40
This precisely tracks the analysis of the court in Thompson
at 460.
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that a substantial risk of serious harm exists, and he must draw
the inference.” Domino v. Texas Department of Criminal Justice,
239 F.3d 752, 755 (5th Cir. 2001)(quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994).
Leaving the decision to the local medical director to decide
whether a repeat appointment should be made is particularly
sensible when the inmate refuses the initial appointment. Under
these circumstances, a reasonable fact finder could not conclude
that Adams was unreasonable in leaving to the local medical unit
the task of discussing the prisoner’s medical condition and the
proposed diagnostic tests that might be needed. This is the
procedure required under written policies promulgated by the TDCJ,
which Dr. Adams was required to follow. Plaintiff does not suggest
what other rule Dr. Adams should promulgate or propose be
promulgated that would apply universally to track appointments for
referrals inmates refuse. Dr. Adams was not deliberately
indifferent because she did not agree with Dr. Kovacs that a
different system for tracking referrals would be better or more
effective than the system that was in place which required the
local unit physician to decide whether another appointment should
be made. See also Southard v. Texas Board of Criminal Justice, 114
F.3d 539.
For the above reasons, I respectfully dissent.
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