United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2007
Charles R. Fulbruge III
Clerk
No. 06-41108
Summary Calendar
ALLYN SCRIBNER,
Plaintiff-Appellant,
versus
LANNETTE LINTHICUM, TDCJ Medical Services Director,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-409-ESH
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Allyn Scribner, Texas prisoner # 380398, appeals from the
district court’s order granting summary judgment to the defendant
in his 42 U.S.C. § 1983 suit. Scribner alleged in his complaint
that a prison dentist determined his teeth needed to be removed
due to disease but that he was being denied dentures because of a
policy implemented by the defendant. The district court
determined that there was no competent summary judgment evidence
showing that the defendant was personally aware of Scribner’s
problems.
*
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this opinion should not be published and is not precedent except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.
No. 06-41108
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This court reviews de novo a district court’s order granting
a party’s summary judgment motion. Whittaker v. BellSouth
Telecomm., Inc., 206 F.3d 532, 534 (5th Cir. 2000). Summary
judgment is appropriate if the record discloses “that there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV.
P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In making this determination, this court must evaluate the facts
in the light most favorable to the non-moving party. Whittaker,
206 F.3d at 534.
Scribner’s claim concerns the alleged denial of medical
care. Prison officials violate the constitutional prohibition
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). A prison official
acts with deliberate indifference “only if he knows that inmates
face a substantial risk of serious harm and disregards that risk
by failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 847 (1994). A supervisory official, such
as the defendant in the instant case, “may be held liable if
there exists either (1) personal involvement in the
constitutional deprivation, or (2) a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional
violation.” Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.
1987).
No. 06-41108
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Contrary to the district court’s conclusion that there was
no competent summary judgment evidence showing that the defendant
was aware of Scribner’s complaints, Scribner averred in his
complaint under penalty of perjury that he wrote to the defendant
about his problems. This was competent summary judgment
evidence. See Hart v. Hairston, 343 F.3d 762, 764 (5th Cir.
2003); Huckabay v. Moore, 142 F.3d 233, 240 n.6 (5th Cir. 1998).
Although the district court concluded that there was no evidence
the defendant received the letter, the defendant has not denied
receiving them, and Scribner’s evidence created an issue of
material fact.
The defendant averred in an affidavit in the district court,
and she argues on appeal that she was not responsible for the
policy at issue and had no authority to change it even if she
knew about Scribner’s complaints. Scribner submitted evidence,
however, in the form of the prison Health Services Policy Manual
suggesting that the defendant gave final approval to the policy.
The district court did not consider this evidence before ruling.
Further, the district court did not consider that regardless of
the defendant’s personal involvement with any alleged
constitutional violations, supervisory liability may exist where
the supervisory official implements a policy so deficient that
the policy itself is a repudiation of constitutional rights and
is the moving force of the constitutional violation. See
Thompkins, 828 F.2d at 304.
No. 06-41108
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Viewed in the light most favorable to Scribner, the evidence
as it currently stands presents a genuine issue of material fact
whether the defendant was personally aware of Scribner’s medical
needs, had the power to do anything about them, and was
personally indifferent to Scribner’s condition. The district
court’s judgment therefore must be vacated and remanded for
further proceedings. We express no opinion on the ultimate
validity of Scribner’s constitutional claim, however. We note
that the contours of the prison policy and Scribner’s medical
need for dentures was not completely developed by either party or
considered by the district court. On remand the district court
may further develop the record to determine not only the extent
of the defendant’s knowledge and authority, but also whether
Scribner can show that he faces a substantial risk of serious
harm. See Farmer, 511 U.S. at 847; see also Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991)(mere disagreement with prison
officials regarding medical treatment does not give rise to a
§ 1983 cause of action).
Linthicum makes several arguments for affirmance on an
alternative basis. First, she argues that Scribner failed to
exhaust his administrative remedies because he did not
specifically name her in his prison grievances. The Supreme
Court recently held that the Prison Litigation Reform Act (PLRA)
contains no requirement concerning who must be named in a prison
grievance in order to exhaust properly the prison grievance
No. 06-41108
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system. Jones v. Bock, 127 S. Ct. 910, 922-23 (2007). Rather,
“it is the prison’s requirements, and not the PLRA, that define
the boundaries of proper exhaustion.” Id. at 923. Linthicum
makes no argument, and there is no indication in the record, that
the Texas grievance procedures require the prisoner to
specifically name a particular official.
Linthicum also argues that Scribner failed to overcome her
claim to qualified immunity. Linthicum reasons that because
there is no evidence of her personal involvement in Scribner’s
claims Scribner fails to show a constitutional violation and
cannot overcome the first hurdle in a qualified immunity
analysis. As noted above, however, there is an issue of fact
whether Linthicum was involved in Scribner’s claims. Further,
Scribner sought injunctive relief in the form of an order that
the defendant change the policy to allow prisoners with few or no
teeth to receive dentures. “Neither absolute nor qualified
personal immunity extends to suits for injunctive or declaratory
relief under § 1983.” Chrissy F. by Medley v. Mississippi Dep’t
of Public Welfare, 925 F.2d 844, 849 (5th Cir. 1991).
VACATED AND REMANDED.