IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20145
Summary Calendar
SIMON SMALLWOOD,
Plaintiff-Appellant,
versus
Dr. CHARLES ALEXANDER, ET. AL,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-92-588)
(September 27, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Appellant Simon Smallwood is incarcerated within the Texas
Department of Criminal Justice. Mr. Smallwood filed this action
pro se and in forma pauperis under 42 U.S.C. § 1983 (1988)
alleging that certain TDCJ employees had violated the Eighth
Amendment by responding with deliberate indifference to his
urgent need for medical care. With leave of the district court,
Mr. Smallwood later amended his complaint to allege that TDCJ
officials had reacted to his lawsuit by retaliating against him
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
in violation of his right of access to the courts. The district
court dismissed most of the deliberate indifference claims during
a hearing held pursuant to Spears v. McCotter, 766 F.2d 179 (5th
Cir. 1985), deeming them frivolous under 28 U.S.C. § 1915(d)
(1988). It allowed the remaining Eighth Amendment and
retaliation claims to go forward and invited the state to file
for summary judgment. The state's subsequent motion for summary
judgment was granted, and this appeal followed. We affirm in
part, reverse in part, and remand.
I. Deliberate Indifference
The facts underlying Mr. Smallwood's claims of deliberate
indifference are simple. On the evening of October 17, 1991, Mr.
Smallwood suffered complications from prostate surgery performed
one week earlier. The complications took the form of the
presence of blood in his urine and shortly thereafter a total
inability to void because of a blood clot. Because of the
intervention of Sergeant Franshaw, Mr. Smallwood went to the
medical facility of his prison wing and was examined by a nurse.
The nurse spoke to a doctor by phone, then told Mr. Smallwood to
drink fluids to increase bladder pressure in order to force out
the clot. After three or more painful hours in which this
treatment proved ineffective, Mr. Smallwood was taken to John
Sealy Hospital to receive catheterization, which relieved his
condition. Mr. Smallwood alleges that the medical staff showed
deliberate indifference to his medical needs by allowing him to
remain in pain for several hours before implementing effective
2
treatment, by tolerating diagnoses by telephone, by giving nurses
too much discretion to refuse access to the hospital, and by
assigning a Certified Medical Assistant instead of a Registered
Nurse or a doctor to treat inmates after hours.
We review the district court's dismissals under § 1915(d)
for abuse of discretion, Denton v. Hernandez, 504 U.S. 25, 33
(1992), and its grant of summary judgment to the defendants de
novo. We affirm the district court's actions.
The facts that Mr. Smallwood alleges will not support a
finding of deliberate indifference. In Farmer v. Brennan, 114 S.
Ct. 1970, 1980 (1994), the Supreme Court adopted "subjective
recklessness as used in the criminal law" as the proper standard
for deliberate indifference under the Eighth Amendment.
Unreasonable and unexplained delay in affording medical care to
obvious infirmities may constitute deliberate indifference.
Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.), cert. denied,
496 U.S. 928 (1990); Loe v. Armistead, 582 F.2d 1291, 1296 (4th
Cir. 1978), cert. denied, 446 U.S. 928 (1980). Nevertheless,
"when a prison inmate has received medical care, courts hesitate
to find an Eighth Amendment violation." Waldrop v. Evans, 871
F.2d 1030, 1035 (11th Cir. 1989).
In this case, Mr. Smallwood received treatment in the form
of a recommendation for increased fluid intake shortly after
complaining of his bladder difficulty. When that method proved
ineffective, he was taken to the hospital to receive effective
treatment. Mr. Smallwood's complaint that the recommendation for
3
increase fluid was the short and easy way to avoid a problem
supports at most an inference of negligence and is therefore
insufficient under Farmer. See Estelle v. Gamble, 429 U.S. 97,
106 (1976). For similar reasons, we hold that the district court
properly disposed of Mr. Smallwood's claims regarding inadequate
medical staffing and dependence on telephone communications. Mr.
Smallwood has failed to state any facts supporting the inference
that medical staff were subjectively reckless with respect to
risks to inmate health.1
II. Retaliation
The facts underlying Mr. Smallwood's claim of retaliation
are complicated and difficult to discern from the incomplete
record before us. Mr. Smallwood alleges that TDCJ officials
retaliated against his filing of a § 1983 complaint by failing to
provide him medically required special transportation to John
Sealy Hospital, by transferring him to a work assignment that
aggravated his painful leg condition, and by refusing to allow
him to return to "trusty" housing. Reviewing de novo the
district court's grant of summary judgment to the Texas
defendants, we hold that the court properly dismissed Mr.
Smallwood's claim of retaliation in the form of refusal of
special transportation, but that the intent of those officials
responsible for Mr. Smallwood's housing and job transfers
1
Given our view that the facts alleged by Mr. Smallwood
will not support an Eighth Amendment claim, we also affirm the
district court's dismissal of his requests for declaratory and
injunctive relief.
4
constituted a genuine issue of material fact entitling Mr.
Smallwood to a ruling from a finder of fact. We therefore
reverse the grant of summary judgment to defendants Brewer,
Adams, and Williams, and remand for further proceedings.
"The law of this circuit is clearly established . . . that a
prison official may not retaliate against or harass an inmate for
exercising the right of access to the courts . . . ." Woods v.
Smith, 60 F.3d 1161, No. 94-30040, 1995 U.S. App. LEXIS 22122, at
* 8 (5th Cir. August 15, 1995). A retaliation claim focuses not
on the particular action taken but on the motive of the prison
official. Otherwise lawful and mundane prison administration
decisions become actionable under § 1983 if motivated by a desire
to retaliate. Id. at * 11; Jackson v. Cain, 864 F.2d 1235, 1248
n.3 (5th Cir. 1989) (holding that a job transfer decision "may be
arbitrary, but it may not be retaliatory against [the prisoner's]
exercise of constitutional rights"). While mere conclusory
allegations of retaliation are insufficient, a prisoner may
proceed by alleging "`a chronology of events from which
retaliation may be plausibly inferred.'" Woods, at * 15 (quoting
Cane v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)).
With respect to the transportation issue, Mr. Smallwood
admits that defendant Brewer's failure to provide special
transportation was not intentional. If the failure was not
intentional, it could not have been retaliatory. The district
court correctly granted summary judgment on the transportation
claim.
5
Mr. Smallwood's job and housing claims are a different
matter. On both subjects, the district court failed to consider
the possibility that the defendants' proffered explanations were
pretextual. Although Mr. Smallwood did not mention the word
"pretext" in his briefs to either the court below or to this
court, he repeatedly pointed out facts inconsistent with the
defendants' explanations for his job and housing transfers.
Remembering that Mr. Smallwood is proceeding pro se, we construe
his recitation of these facts as an argument that the defendants
made decisions designed to punish him for filing a lawsuit and
offered pretextual reasons for these decisions. Our review of
the record before us persuades us that a rational jury could
agree.
Regarding the job transfer, the defendants explained that
they switched Mr. Smallwood from his job as a kitchen worker to
one as a porter on sanitary grounds, pointing out that Mr.
Smallwood's incontinence required him to wear an adult diaper.
Mr. Smallwood responds, however, that before filing suit he had
worked a significant length of time in the identical kitchen
position while wearing the adult diaper. He also questions the
veracity of the sanitation rationale when his new job requires
him to wash flatware, cups, plates, and other eating implements.
Finally, he highlights that he received the sanitation
explanation from defendant Adams shortly after a different prison
official had assured him that he would be able to return to his
kitchen job, implying that Adams persuaded this official to
6
change his mind. Mr. Smallwood would support these allegations
with his own testimony at a trial. A rationale jury could infer
from this chain of events that the defendants' proffered reasons
for the job transfer were pretextual.
The allegation of a retaliatory housing transfer is a closer
question, but we reach the same conclusion. In response to Mr.
Smallwood's initial I-60 complaint form, defendant Brewer
explained that Mr. Smallwood had not returned from A-Wing to
trusty housing on L-Wing because he was physically unable to ride
the normal bus to the hospital for follow-up treatment. Mr.
Smallwood responds that several of the trips he did make from A-
Wing were in the normal bus. To avoid the necessity of these
painful bus rides, Mr. Smallwood requested a transfer to Southern
Regional Unit, a facility closer to the hospital. Prison
official Zeller responded that there was no medical need for such
a transfer. In the midst of Mr. Smallwood's internal appeal,
Assistant Warden Pierson explained the housing transfer on the
grounds that Mr. Smallwood could not live on L-Wing because he
was taking Elavil. There was also testimony to this effect at
the Spears hearing. In response, Mr. Smallwood testified at the
Spears hearing that he had been receiving the drug regularly on
L-Wing without problems before filing his lawsuit. The district
court ultimately rested its grant of summary judgment on the
grounds that prison regulations prohibited an inmate with a
"PULHES designation" of 3 from living on L-Wing, and that Mr.
Smallwood admitted that his PULHES designation was 3. But the
7
defendants' own evidence proves that Mr. Smallwood has held this
designation since 1990, and Mr. Smallwood's Spears hearing
testimony establishes that he lived on L-Wing from sometime after
1990 until he filed his lawsuit without incident. Under these
facts, a rationale jury could disregard the defendants' medical
justifications as a pretext for a retaliatory motive.
We reiterate that a retaliation suit focuses not on whether
the defendants had legally sufficient grounds to justify a
particular action, but on the defendants' motive. Even the
action to correct a clear violation of a mandatory prison
regulation, if effectuated for an illicit purpose, triggers
liability under § 1983. Determining an particular official's
motive at a particular time may require inferences from the
evidence. We hold that a rational jury could reasonably infer a
retaliatory motive from the chain of events that Mr. Smallwood
alleges.2
We remand the retaliation claims for further proceedings.
Given our holding on this issue, and the state of the record
before us, we are uncertain as to the proper disposition of Mr.
Smallwood's appeal from the district court's rulings regarding
his requests to amend his complaint to add prison official
2
The defendants remind us of our discretion to affirm the
judgment below on any legal grounds supported by the record. In
their brief, however, the defendants provide no legal argument at
all on Mr. Smallwood's retaliation claims. Under these
circumstances, we limit our review to the grounds relied upon
below.
8
Bachman as a defendant3 and to compel the production of certain
records. We vacate the decisions of the district court of these
issues and remand for further consideration in light of our
opinion.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND
REMANDED.
3
On the amendment issue, we note that a prison official
violates the law if he retaliates against a prisoner for filing
suit against a colleague. Thus, the fact that Mr. Bachman was
not a defendant in the initial Eighth Amendment suit does not
necessarily mean that he did not act with illicit motive.
9