Case: 22-40195 Document: 00516962858 Page: 1 Date Filed: 11/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 9, 2023
No. 22-40195
Lyle W. Cayce
____________ Clerk
Andrew Gonzales,
Plaintiff—Appellant,
versus
Paul Reilley; Anitra Lindley; Ashley L. Stephenson;
James Geddes; Linda R. Fickey,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:20-CV-131
______________________________
Before Smith, Southwick, and Higginson, Circuit Judges.
Per Curiam:*
Andrew Gonzales is a prisoner formerly confined in a facility operated
by the Texas Department of Criminal Justice. While imprisoned, Gonzales
underwent triple bypass surgery for heart damage. Gonzales brought suit un-
der 42 U.S.C. § 1983, alleging that various defendants had been deliberately
indifferent to his serious medical needs in the months preceding the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.4.
Case: 22-40195 Document: 00516962858 Page: 2 Date Filed: 11/09/2023
No. 22-40195
operation, causing him to suffer permanent heart damage. We AFFIRM the
grant of summary judgment with regard to all defendants except Defendant
Stephenson. We MODIFY the judgment to dismiss without prejudice the
claim against Defendant Stephenson for lack of personal jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the events underlying this lawsuit, Andrew Gonzales
was incarcerated at the Allan B. Polunsky Unit in east Texas. On June 11,
2018, Gonzales made two visits to the prison medical unit for chest pain that
he rated as extremely severe. Gonzales was examined and then released that
same day from the medical unit. Gonzales visited the medical unit multiple
times over the following months. In February and March 2019, Gonzales
filed formal grievances seeking more effective care for his chest and breathing
pains. On March 28, 2019, Dr. James Geddes diagnosed Gonzales with car-
diac ischemia, leading to a triple vessel coronary artery bypass graft on April
11, 2019. On December 7, 2020, Gonzales was found unconscious in his cell
and later suffered cardiac arrest. Gonzales was given an automatic implanta-
ble cardioverter defibrillator as a result.
In June 2020, Gonzales filed, pro se, this Section 1983 suit in the
United States District Court for the Eastern District of Texas. The defend-
ants, employees of the University of Texas Medical Branch, are Paul Reilley,
a physician assistant; Anitra Lindley, a senior practice manager; Ashley Ste-
phenson, a grievance investigator; Dr. James Geddes, a physician; and Linda
Fickey, a nurse. All defendants except Stephenson moved for summary judg-
ment. The magistrate judge issued a report and recommendation to grant the
motion. The district court determined that the defendants were entitled to
qualified immunity and granted their motion for summary judgment. Gon-
zales appealed.
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DISCUSSION
I. Qualified Immunity
We review a grant of summary judgment de novo. Hyatt v. Thomas,
843 F.3d 172, 176 (5th Cir. 2016). To overcome the defendants’ assertion of
qualified immunity, Gonzales must show they violated his clearly established
Eighth Amendment rights. See Easter v. Powell, 467 F.3d 459, 462–63 (5th
Cir. 2006). Such a showing requires proof that he was harmed by the defend-
ants’ deliberate indifference to his serious medical needs. See Thompson v.
Tex. Dep’t of Crim. Justice, 67 F.4th 275, 280–81 (5th Cir. 2023). “Deliberate
indifference exists when an official ‘knows of and disregards an excessive risk
to inmate health or safety.’ ” Id. at 281 (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)).
“Deliberate indifference is an extremely high standard to meet.”
Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001). Un-
successful medical treatment, negligence, and medical malpractice do not
amount to deliberate indifference; absent exceptional circumstances, a pris-
oner’s disagreement with his medical treatment will not constitute deliberate
indifference either. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
Whether to provide additional treatment is a decision left to medical judg-
ment. Id.
We analyze Gonzales’s claims against each defendant.
a. Nurse Fickey
Gonzales alleges that Nurse Linda Fickey saw him twice on June 11,
2018. Prison medical records, though, indicate she saw him only once that
day when he first presented for chest pain. The medical records for Gonza-
les’s second evaluation that day show he was seen by Licensed Vocational
Nurse Smith-Valdez, under the direction of Physician Assistant Paul Reilley.
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As to Nurse Fickey, the medical records establish that she made her entries
on Gonzales’s records approximately six hours after her evaluation occurred.
Gonzales has not offered any evidence to create a dispute about the accuracy
of these records. Gonzales underwent an electrocardiogram test (“EKG”)
and troponin testing, each of which gave no indication of heart problems.
Nurse Fickey noted that Gonzales’s vital signs were within normal limits,
provided him antacids, and released him from the clinic.
These medical records demonstrate that Gonzales was stable when
Nurse Fickey evaluated him and that she provided care. There is no evidence
that Nurse Fickey acted with deliberate indifference to Gonzales’s serious
medical needs.
b. Physician Assistant Reilley
The medical records indicate that Physician Assistant Reilley pro-
vided care for Gonzales on three occasions. Physician Assistant Reilley or-
dered the EKG and troponin testing after Gonzales was examined by Nurse
Fickey on June 11, 2018. Gonzales reported difficulty breathing later that
same day and was taken on a stretcher to be evaluated by Licensed Vocational
Nurse Smith-Valdez. In response to LVN Smith-Valdez’s evaluation, Phy-
sician Assistant Reilley ordered an injection of ranitidine and solumedrol for
acid reduction, which Gonzales received well. At the time this injection was
ordered, Gonzales had already undergone EKG and troponin testing. The
EKG and troponin testing gave no indication of heart problems. Ordering
the injection rather than more intensive care did not amount to deliberate
indifference. It was the result of an exercise of medical judgment, to which
we afford deference. See Domino, 239 F.3d at 756.
Physician Assistant Reilley also saw Gonzales on February 11, 2019.
The clinic note stated he was seeing Gonzales as a “follow up for breathing
issues for over a year.” The note also acknowledged that Dr. Geddes had
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previously referred Gonzales for a stress test for potential heart conditions,
but Gonzales refused the test. Although Gonzales disputes that he refused
the stress test, the clinic note supports a finding that Physician Assistant Reil-
ley was unaware of a substantial risk to Gonzales’s health. The test for delib-
erate indifference is “subjective recklessness as used in the criminal law,”
requiring a person to disregard a substantial risk of which he is actually aware,
not one of which he should have been aware. Farmer v. Brennan, 511 U.S.
825, 836–40 (1994). Because Gonzales did not establish Physician Assistant
Reilley was aware of a substantial risk to his health, he cannot show Physician
Assistant Reilley acted with deliberate indifference.
c. Dr. Geddes
The medical records demonstrate that Dr. James Geddes saw Gonza-
les on the following dates and made the following notes:
July 10, 2018: Gonzales complained of “deep chest discomfort
brought on by exertion or anxiety for three weeks.” Gonzales “wants to hold
off on stress test referral for right now.” Dr. Geddes noted that he would
make a referral for a brace for unrelated knee pain.
November 15, 2018: Gonzales complained of chest pain, which was re-
lieved by belching. His symptoms were atypical for angina. Gonzales was
“not really wanting to go” for a stress test, and “due to [the] somewhat atyp-
ical nature of” the symptoms, Dr. Geddes “did not press the issue at this
time.” Gonzales was asked to avoid heavy exertion and notify the clinic if his
symptoms worsened.
February 21, 2019: Gonzales was still suffering from the symptoms he
reported in the November 2018 visit. Dr. Geddes ordered a stress test, which
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was scheduled for April. This was a routine, rather than expedited, stress
test.1
March 28, 2019: Dr. Geddes made a provisional diagnosis of cardiac
ischemia based on EKG results and expedited Gonzales’s stress test. He also
restricted Gonzales to the ground floor so he could avoid the use of stairs.
Dr. Geddes analyzed Gonzales’s symptoms each time he examined
him and provided a plan of care, including two stress tests which Gonzales
declined.2 Dr. Geddes’s February 2019 decision to order a routine rather
than expedited stress test may have been harmful in retrospect, but does not
amount to a constitutional violation. The decision of whether to provide ad-
ditional care is a decision left to medical judgment. Gobert, 463 F.3d at 346.
Given our deference to the medical expert on this point, we also defer on the
timing of that care. Dr. Geddes expedited the stress test when an EKG re-
turned a result suggesting heart damage.
These records indicate that Dr. Geddes, at worst, may have misun-
derstood the severity of the risk to Gonzales. Imperfect care or a misdiagno-
sis does not equate to deliberate indifference. See, e.g., Gobert, 463 F.3d at
346 (explaining that unsuccessful medical treatment, acts of negligence, and
medical malpractice do not amount to deliberate indifference). Dr. Geddes
did not violate Gonzales’s Eighth Amendment rights.
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1
The record suggests that expedited referrals are carried out within thirty days,
while routine referrals may take up to six months.
2
As mentioned, the clinic notes state that Gonzales declined stress tests. We are
not persuaded by Gonzales’s contention that for the clinic notes to be valid, Dr. Geddes
also needed to provide refusal forms for any instance in which Gonzales declined a stress
test.
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d. Ms. Lindley
In February and March 2019, Gonzales filed grievance forms in an ef-
fort to receive more effective care for his health problems. Anitra Lindley
was a senior practice manager at the time and was involved with the receipt
and execution of Gonzales’s grievances. Gonzales alleges that Lindley com-
mitted spoliation, falsification of medical records, and fraud on the court in
relation to her handling of his grievance forms. Gonzales acknowledges that
his claims against her are “not adequately developed” because of insufficient
discovery. Contrary to Gonzales’s allegations, Lindley’s disclosures indicate
that she actively tried to help Gonzales. Lindley opened a new Step 1 emer-
gency grievance so that the unit medical department, and not just the griev-
ance program, could be contacted. Gonzales has not shown Lindley was de-
liberately indifferent to his serious medical needs.
e. Summary
Gonzales’s allegations at most would support that some defendants
unsuccessfully treated him and caused damage to his health. Any failures in
their care fall short of the “extremely high standard” of deliberate indiffer-
ence that would allow Gonzales to overcome the defendants’ qualified im-
munity. Domino, 239 F.3d at 756.
II. Discovery
Gonzales alleges that the defendants’ disclosures were incomplete un-
der the existing scheduling order, keeping him from adequately developing
his claims against them.
We review decisions on pretrial discovery regarding qualified immun-
ity for an abuse of discretion. Hutcheson v. Dallas Cnty., 994 F.3d 477, 481
(5th Cir. 2021). “A trial court enjoys wide discretion in determining the
scope and effect of discovery, and it is therefore unusual to find an abuse of
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discretion in discovery matters. . . . [T]he district court’s decision should be
reversed only in unusual and exceptional cases.” JP Morgan Chase Bank,
N.A. v. Datatreasury Corp., 936 F.3d 251, 255–56 (5th Cir. 2019) (quotation
marks and citations omitted).
We have mentioned the multiple disclosures made in this case. Those
disclosures contradicted Gonzales’s allegations of deliberate indifference.
The district court did not abuse its discretion in denying additional discovery.
III. Personal Jurisdiction over Defendant Stephenson
Ashley Stephenson was not served and was not a party to the defend-
ants’ summary judgment motion. In recommending that Stephenson none-
theless benefit from summary judgment, the magistrate judge cited two of
this court’s opinions, Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) and
McCarty v. Zapata Cnty., 243 F. App’x 792, 794 (5th Cir. 2007). The magis-
trate judge understood these decisions to mean that “[a]n unserved defend-
ant . . . is entitled to the benefit of the appearing defendants’ favorable sum-
mary judgment motion.” We conclude, though, that only a defaulting de-
fendant who has been served is entitled to such a benefit under these prece-
dents. Although Gonzales moved for an entry of default against Stephenson,
the district court granted summary judgment and dismissed all outstanding
motions without having specifically addressed that motion. At the time the
district court granted summary judgment, therefore, Stephenson was an un-
served party who had not been held in default by the court.
“[A] fundamental rule of civil procedure [is] that before a federal
court may exercise jurisdiction over a defendant, the procedural requirement
of service of summons must be satisfied.” Maiz v. Virani, 311 F.3d 334, 340
(5th Cir. 2002) (quotation marks and citation omitted). It was not satisfied
for Stephenson.
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We MODIFY the judgment to state that Gonzales’s claim against De-
fendant Stephenson is dismissed without prejudice. We otherwise AFFIRM
the judgment of the district court with respect to all other defendants.
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