Case: 19-30039 Document: 00515713488 Page: 1 Date Filed: 01/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 20, 2021
No. 19-30039 Lyle W. Cayce
Clerk
Brian Roberts,
Plaintiff—Appellee,
versus
Shannon Lessard, Major; Lindell Slater, Lieutenant;
Kevin Durbin, Major,
Defendants—Appellants.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:17-CV-7
Before Davis, Stewart, and Oldham, Circuit Judges.
Per Curiam:*
Defendants Major Lessard, Lieutenant Slater, and Major Durbin,
prison guards at Elayn Hunt Correctional Center, appeal the district court’s
denial of their motion for summary judgment asserting qualified immunity.
The district court determined that Plaintiff Brian Roberts presented
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-30039
sufficient evidence to overcome Defendants’ qualified immunity defense and
denied the motion. Because Plaintiff failed to demonstrate a genuine issue of
material fact regarding deliberate indifference, we REVERSE and REN-
DER judgment for Defendants.
I. Background
Roberts is an inmate at Elayn Hunt Correctional Center in Iberville,
Louisiana. On December 26, 2015, Lieutenant Johnson activated her beeper
after noticing that Roberts had collapsed on the floor of his cell. Roberts’s
symptoms included loss of control of his body and inability to speak. An EMT
responded to the alert, as well as Defendant Major Lessard. Roberts alleged
that Lessard and the EMT discussed that Roberts may be intoxicated on
“mojo” (synthetic marijuana).
Roughly 12 minutes later, another inmate and at least one of the de-
fendants wheeled Roberts to the prison’s medical facility, the Assessment
Triage Unit (“ATU”). At the ATU, no physician was on duty, but prison
medical records indicate that a second EMT evaluated Roberts. Additionally,
Roberts alleged that he was administered a drug test at the ATU by prison
guard Defendants Major Lessard, Major Durbin, and Lt. Slater. Roberts fur-
ther alleged that the drug test was negative, and no mojo was found. The
EMTs and the Defendants, nevertheless, continued to believe that Roberts
was intoxicated. Defendants issued Roberts a disciplinary write-up and trans-
ferred him to administrative segregation as punishment.
In the early morning hours of the next day, December 27, 2015, Rob-
erts was found on the cell floor half-unconscious and unable to move. At this
point, Defendants believed that Roberts may have had a stroke. Roberts was
brought to the ATU again, a doctor was called, and Roberts was transferred
to Our Lady of the Lake Hospital. Doctors at the hospital found that Roberts
had suffered a stroke which left him paralyzed on the left side of his body.
2
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No. 19-30039
Roberts filed suit under 42 U.S.C. § 1983 and state law against Les-
sard, Durbin, and Slater alleging that they violated his Eighth Amendment
rights by refusing medical treatment or providing inadequate treatment. De-
fendants filed a motion for summary judgment asserting the defense of qual-
ified immunity. The district court found that Roberts presented evidence to
overcome the qualified immunity defense and denied the motion for sum-
mary judgment. This appeal followed.
II. DISCUSSION
A. Standard of Review
We generally review a district court’s summary judgment de novo. 1
However, when reviewing an appeal of a denial of summary judgment on
qualified immunity grounds, we “[do] not conduct a typical de novo review.” 2
Instead, we “consider only whether the district court erred in assessing the
legal significance of the conduct that the district court deemed sufficiently
supported for purposes of summary judgment.” 3 “Where factual disputes
exist in an interlocutory appeal asserting qualified immunity, we accept the
plaintiff[’s] version of the facts as true.” 4 Nevertheless, the district court’s
conclusions regarding the materiality of the facts are reviewed de novo. 5
1
Hyatt v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016).
2
Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 (5th Cir. 2014)
(quotation omitted).
3
Id.
4
Id. (quotation omitted).
5
Id.
3
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“Qualified immunity protects officers from suit unless their conduct
violates a clearly established constitutional right.” 6 After an official asserts
qualified immunity, “the burden then shifts to the plaintiff, who must rebut
the defense by establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law.” 7 When review-
ing a motion for summary judgment based on qualified immunity, “[w]e must
decide (1) whether an officer’s conduct violated a federal right and (2)
whether this right was clearly established.” 8
B. Deliberate Indifference
The Supreme Court has established that “deliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain’” proscribed by the Eighth Amendment and is actionable
under § 1983. 9 Generally, “the indifference is manifested by prison doctors
in their response to the prisoner’s needs or by prison guards in intentionally
denying or delaying access to medical care or intentionally interfering with
the treatment once prescribed.” 10 Deliberate indifference requires that “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.” 11 Nevertheless, “prison officials who actually knew of a
6
Hyatt, 843 F.3d at 177 (quoting Mace v. City of Palestine, 333 F.3d 621, 623 (5th
Cir. 2003)).
7
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
8
Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018).
9
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (quoting Gregg v. Georgia, 428 U.S.
153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)).
10
Id.
11
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
4
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substantial risk to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was not
averted.” 12
1. Defendants’ Subjective Awareness of Risk of Harm
Defendants concede that a stroke constitutes a substantial risk of harm
to an inmate. Furthermore, because Defendants were aware of Roberts’s
stroke symptoms, Roberts argues Defendants should have drawn an
inference of substantial risk of harm. Lessard testified in her deposition that
in her first encounter with Roberts, she observed him sweating, slurring his
speech, and having trouble controlling his movement. It is disputed whether
Durbin was present with Lessard during the first encounter with Roberts, but
assuming that he was, Durbin would have witnessed the same symptoms.
Slater became involved in the incident when Roberts was wheeled to the
ATU. She, too, would have witnessed the same symptoms as the other
Defendants. When Lessard first arrived at Roberts’s cell, she asked him if he
had ever had seizures which he denied. She then began thinking he was
intoxicated. The EMT arrived around that time and also thought he was
intoxicated.
Though Defendants were aware that Roberts’s symptoms could
indicate a serious medical problem which posed a substantial risk of harm, to
be considered deliberately indifferent they must also draw the inference that
those facts did indeed relate to a substantial risk of harm. Defendants argue
that Roberts’s symptoms also suggested that he was intoxicated, and the
earliest they were aware that Roberts suffered a stroke was the following
morning during their second encounter with him. In any event, it is
uncontested that Defendants believed that Roberts was intoxicated and this
12
Id. at 844.
5
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explained his symptoms. We are not persuaded that a jury could conclude
that the Defendants actually drew the inference that Roberts was suffering
from a medical condition that presented a serious risk of harm. This is
particularly so given that both EMTs concluded that Roberts was intoxicated.
2. Defendants’ Response to Risk of Harm
To act with deliberate indifference, prison officials must also
disregard a substantial risk of harm “by failing to take reasonable measures
to abate it.” 13 Defendants have produced depositions and documents
showing that upon discovery that Roberts had collapsed in his cell, the
defendant prison guards and an EMT responded, Roberts was taken to the
ATU where he was evaluated by a second EMT, and the total response time
was about 12 minutes. Roberts contends that the response time “seem[ed]
like forever,” 14 but otherwise alleges a similar chain of events. The record
evidence shows a reasonably timed response that included prompt
consultation with medical personnel. We conclude that based on the
summary judgment evidence, there is no genuine issue of material fact
indicating that Lessard, Durbin, and Slater responded unreasonably to
Roberts’s medical needs.
Roberts also provided evidence that Defendants insisted that he was
intoxicated from synthetic marijuana. He asserts that this insistence
influenced the medical personnel and caused his delayed stroke treatment.
Nevertheless, Roberts failed to establish a genuine issue that Defendants
acted unreasonably for purposes of deliberate indifference. First, our prior
13
Hyatt v. Thomas, 843 F.3d 172, 179 (5th Cir. 2016) (quoting Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006)).
14
The response time is not seriously disputed. The time it took to get to the ATU
is documented in the medical record along with all the tests administered by medical
personnel.
6
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decisions suggest that an officer’s failure to correctly diagnose a medical
condition from ambiguous symptoms does not amount to deliberate
indifference. 15
Second, the defendants in this case are the prison guards rather than
the medical personnel. Although the prison guards concluded wrongly that
Roberts was intoxicated, they still responded by turning him over to medical
personnel. The summary judgment evidence does not show that the prison
guards “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” as required for deliberate
indifference. 16 Once Roberts was turned over to medical personnel, the
prison guards’ responsibility was then to defer to the findings of the medical
personnel. Here, the medical personnel also concluded that Roberts was
intoxicated after evaluating him. Once medical personnel gave an
intoxication diagnosis, Defendants’ obligation was to act in accordance with
that finding and refrain from “interfering with the treatment once
prescribed.” 17 Notably, we are not presented with a case against the prison
medical personnel and whether their actions constituted deliberate
indifference.
We therefore hold that Roberts has failed to come forward with
evidence demonstrating a genuine issue that Defendants acted with
15
See Trevino v. Hinz, 751 F. App’x 551, 555 (5th Cir. 2018) (citing Tamez v.
Manthey, 589 F.3d 764 (5th Cir. 2009)); Hines v. Henson, 293 F. App’x 261, 263 (5th Cir.
2008). Although unpublished opinions issued after January 1, 1996 are not controlling
precedent, they may be considered persuasive authority. Ballard v. Burton, 444 F.3d 391,
401 & n.7 (5th Cir. 2006).
16
Domino v. Tex. Dep’t. of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
17
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).
7
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deliberate indifference. Without deliberate indifference, Roberts has failed to
establish an Eighth Amendment violation. Thus, Defendants are protected
by qualified immunity.
III. CONCLUSION
The judgment of the district court denying summary judgment for De-
fendants’ defense of qualified immunity is REVERSED, and judgment is
RENDERED for Defendants.
8