Case: 20-60204 Document: 00516244541 Page: 1 Date Filed: 03/18/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 18, 2022
No. 20-60204
Lyle W. Cayce
Clerk
Jerry VanWagner,
Plaintiff—Appellant,
versus
C. Faulks, M.S.P. Medical Director; Gloria Perry,
MDOC Medical Director; Angela Brown, Nurse,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:18-CV-150
Before Owen, Chief Judge, and Jones and Wilson, Circuit Judges.
Per Curiam:*
Appellant Jerry VanWagner challenges the district court’s grant of
summary judgment in favor of Appellees, two people involved with
healthcare in the Mississippi Department of Corrections (“MDOC”).
Because he failed to create a genuine issue of material fact as to the
*
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opinion should not be published and is not precedent except under the limited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. 20-60204
constitutionality of the care he received for Hepatitis C or the prison’s
protocol for treatment, we AFFIRM. 1 We note, however, that this decision
covers events up to the date of judgment; it does not foreclose the prison’s
ongoing responsibility to administer treatment if and when VanWagner’s
condition deteriorates.
BACKGROUND
Since he contracted chronic Hepatitis C (HCV) from a visit to the
prison barbershop and tested positive in 2012, VanWagner has been
monitored by medical personnel in and outside of MDOC. He is enrolled in
MDOC’s chronic care program. He amassed over two thousand pages of
medical records, many of which reflect regular liver tests, specialist visits,
and other forms of HCV monitoring and treatment for his other medical
conditions. Over the years, his condition gradually deteriorated and, as of
this appeal, was rated at least as “advanced fibrosis” and possibly “advanced
cirrhosis” of the liver.
In 2015, VanWagner began pressing prison officials to administer the
newest HCV drug treatment, direct-acting antivirals (“DAAs”), but they
refused to do so. VanWagner asserts, and Appellees do not dispute, that the
medicine’s high cost factored into the prison’s treatment decision. 2 After
1
Appellant’s appeal of the court’s order denying appointment of counsel in the
trial court is mooted by this decision.
2
Whether cost is a prohibitive factor is not fully explored in the record. Appellees
do not deny that cost of the treatment may factor into the prison’s decisions, but
consideration of cost is not necessarily indicative of deliberate indifference. See Woodall v.
Foti, 648 F.2d 268, 272 (5th Cir. 1981); Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263,
1276 (11th Cir. 2020) (quoting Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999));
see also Zingg v. Groblewski, 907 F.3d 630, 638 (1st Cir. 2018); Reynolds v. Wagner, 128 F.3d
166, 175 (3d Cir. 1997); Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977). VanWagner
contends costs were the sole factor against his receiving DAAs, but his acknowledgement
that at least one other MDOC inmate is receiving DAAs belies this conclusion.
2
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exhausting his administrative remedies, he filed suit pro se in federal court. A
Spears hearing was held, and VanWagner amended his complaint three times.
The magistrate judge dismissed some claims and defendants, leaving in place
claims against Nurse Practitioner Angela Brown, a contract nurse who
managed his treatment for several years, and Dr. Gloria Perry, MDOC’s
Medical Director.
Both remaining defendants moved for summary judgment. In
addition to the medical records, Nurse Brown offered an affidavit; Dr. Perry
produced no further evidence. The district court, in a brief order, concluded
that VanWagner failed to create a genuine issue of material fact concerning
defendants’ deliberate indifference to his serious medical needs. Farmer v.
Brennan, 511 U.S. 825, 832, 837, 114 S. Ct. 1970, 1976, 1978–79 (1994). In its
opinion, the court misstated some relevant facts—specifically, the increasing
severity of VanWagner’s chronic liver disease and the purpose of a
consultative visit with a gastroenterologist in August 2019.
On appeal, and now represented by counsel, VanWagner argues that
there exist genuine material fact issues concerning (1) whether he received
any medical “treatment” other than monitoring; (2) whether the prison’s
withholding of DAAs was due to its cost; (3) whether the defendants failed
to provide an outside HCV specialist consultation, despite recommendations
from prison medical staff; (4) whether the defendants followed MDOC’s
standards for treating HCV patients; and (5) whether any of the above listed
deficiencies as well as the protocol itself amount to deliberate indifference in
violation of the Eighth Amendment.
DISCUSSION
Upon careful study of the record and relevant case law, we concur
with the district court’s conclusion that VanWagner did not adduce
3
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sufficient evidence to create triable fact issues concerning deliberate
indifference as to either Nurse Brown or Dr. Perry.
Prison officials violate the Eighth Amendment’s prohibition against
cruel and unusual punishment when they show deliberate indifference to a
prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104–05
(1976). “Deliberate indifference is an extremely high standard to meet.”
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal quotation
marks and citation omitted). To establish an Eighth Amendment violation
based on deliberate indifference, a plaintiff must demonstrate “that prison
officials 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.” Gobert, 463 F.3d at 346
(internal quotation marks and citation omitted). A prisoner’s disagreement
with the treatment given or assertion that he should have received further
treatment does not raise a viable claim. Id. “Medical records of sick calls,
examinations, diagnoses, and medications may rebut an inmate’s allegations
of deliberate indifference.” Id. at 346 n.24 (internal quotation marks and
citation omitted).
VanWagner was enrolled in the prison’s chronic care program and has
indubitably received appropriate periodic testing to determine the
progression of his HCV as well as symptomatic treatments. According to the
medical records and Nurse Brown’s affidavit, the prison’s decision whether
to provide HCV treatment depended in part on the patient’s Fibrosis-4
score, which is a distinct metric from the FibroTest diagnostic test on which
VanWagner relies. Which score is most informative regarding the patient’s
need for DAAs is put in issue by VanWagner, yet he offered no expert
medical evidence to challenge the prison’s testing measures, much less to
4
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establish that the prison’s measures are deliberately indifferent. 3 This
determination raises a quintessential matter of medical judgment.
VanWagner’s difference of opinion with the prison authorities’ medical
judgment does not raise an issue of deliberate indifference from the record
before us. Petzold v. Rostollan, 946 F.3d 242, 249 (5th Cir. 2019)
(“[D]isagreement about the recommended medical treatment is generally
not sufficient to show deliberate indifference.”).
As to Nurse Brown, no triable issue of deliberate indifference is
supported by the record. Among other things, she recommended in October
2018 that VanWagner be seen by a gastroenterologist specialist for his HCV.
She further undertook to provide VanWagner with ongoing and regular
testing for purposes of monitoring his condition, as well as provided
symptomatic treatments. There is no contention that she performed her
tasks incompetently or engaged in malpractice, although even these
contentions would still not set up a fact issue for deliberate indifference in
this case. She further had no responsibility or decision-making authority with
respect to whether VanWagner qualified for DAAs or whether DAAs would
be denied “because of cost.” Thus, Nurse Practitioner Brown neither
objectively nor subjectively disregarded a substantial risk to VanWagner’s
health.
VanWagner’s case against Dr. Perry ultimately boils down to his
disagreement with the prison’s monitoring and treatment protocol. In fact,
his briefs on appeal mention Dr. Perry’s specific involvement with him only
once. His brief states that VanWagner communicated with her in hopes of
obtaining DAAs and was refused. Because Dr. Perry filed no affidavit with
3
To establish deliberate indifference, VanWagner had to show that Appellees
“kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837, 114 S. Ct. at 1979.
5
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her summary judgment motion or otherwise provided contrary evidence,
VanWagner intimates she denied him DAAs solely because of cost. But
VanWagner’s problem is that, as a defendant, Dr. Perry bore no burden to
disprove his claims; he had the burden to present evidence demonstrating a
genuine and material fact issue that the prison’s approach to monitoring the
progress of the chronic, progressive disease was inherently deliberately
indifferent. There is much in this record about diagnostic tests, enzyme
levels, symptoms, and indeed other significant maladies that VanWagner
experienced, but without expert medical evidence concerning a complex
condition like HCV, a federal court cannot draw conclusions about
constitutionally deficient medical care. 4
Finally, to the extent VanWagner attempts to challenge the prison’s
HCV protocols as deliberately indifferent, the record is undeveloped for that
purpose. VanWagner’s citations to a burgeoning set of authorities from other
circuits, while enlightening, cannot supplant the need for evidence in the
district court. And in most of the circuit court cases, trials or extensive
evidentiary hearings had occurred that undergirded and were discussed at
length in the eventual appellate decisions. See Atkins v. Parker, 972 F.3d 734,
738 (6th Cir. 2020), cert. denied sub nom. Atkins v. Williams, 141 S. Ct. 2512
(2021); Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1268 (11th Cir.
2020).
CONCLUSION
As stated at the outset, the foregoing discussion references facts
established as to VanWagner’s condition up until the date of judgment.
Consequently, it does not preclude further exploration if his chronic HCV
4
Implicitly acknowledging the deficit of probative medical opinions, VanWagner
and an amicus brief cite facts outside the district court record. We cannot, of course, review
the summary judgment based on those submissions.
6
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worsens in the future. But based on this record, the judgment of the district
court is AFFIRMED.
7