Domino v. Texas Department of Criminal Justice

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

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No. 99-41486
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ANNA DOMINO; ET AL.,

Plaintiffs,

SHERENA DOMINO, As Administrator of the Estate of Antoine Domino,

Plaintiff-Appellee,

VERSUS

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
ET AL.,

Defendants,

SRINIVAS REDDY,

Defendant-Appellant.

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Appeal from the United States District Court
For the Eastern District of Texas

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February 7, 2001

Before JOLLY and DAVIS, Circuit Judges, and RESTANI1, Judge.

DAVIS, Circuit Judge:

Anna Domino, et al. filed this § 1983 suit as administrator

of the estate of Texas Department of Corrections prisoner Antoine

Domino (Domino) against Dr. Srinivas Reddy (Reddy) and other TDC

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Judge of the U.S. Court of International Trade, sitting by
designation.

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officials following Domino’s suicide. Plaintiff alleged that Dr.

Reddy, a prison psychiatrist, by failing to predict Domino’s

suicide, was deliberately indifferent to Domino’s medical needs and

thereby violated his Eighth Amendment right to be free from cruel

and unusual punishment. Dr. Reddy moved for summary judgment based

on qualified immunity. The magistrate judge denied Reddy’s motion

and Reddy filed this interlocutory appeal. For the reasons that

follow, we reverse.

I.

Antoine Domino committed suicide by hanging himself with a bed

sheet in his prison cell at the Coffield Unit of the Texas

Department of Criminal Justice (“TDCJ”) on August 2, 1996. Reddy

was a psychiatrist at the Coffield Unit at the time of Domino’s

suicide and had treated him on a number of occasions. On August 2,

1996, Domino asked to meet with a member of the Psychiatric Team at

Coffield. Domino met with a prison psychologist, Gayle Haynes, who

then referred Domino to Reddy for further evaluation. Reddy’s

evaluation of Domino lasted approximately five minutes.

During this meeting, Domino asked for sleeping pills and

expressed apprehension about his upcoming transfer from

administrative segregation to the general prison population. After

Reddy denied his request for sleeping pills, Domino said, “I can be

suicidal.” Reddy did not believe that Domino was a suicide risk at

that time, thinking instead that Domino’s statement was an attempt

to achieve “secondary gain,” such as sedatives or a single cell.

Domino then began banging his head on the table and Reddy had the

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guards take Domino back to his cell. Two and a half hours later,

Domino committed suicide.

Domino had a long history of psychological problems. Even

before being incarcerated, he was hospitalized for his

psychological problems and also attempted suicide several times.

Reddy did not start working at Coffield until January 1995. Domino

was already an inmate at this time, but he was not sent to Reddy

until March 1995, when Domino was found in his cell with a homemade

noose. Reddy diagnosed Domino as suffering from recurrent major

depression and started him on Prozac, an antidepressant medication.

Reddy also placed Domino back on the active psychiatric caseload

and ordered weekly visits with a therapist.

In March 1995, Domino was transferred to Skyview Psychiatric

Hospital for six days after he made more suicide threats at

Coffield. At Skyview, Domino was diagnosed as suffering from

bipolar (manic-depressive) disorder, with depression in full

remission. In Domino’s discharge note, the Skyview physicians

wrote that some of his behavior could be characterized as

manipulative. When Domino returned to Coffield, Reddy examined him

again and prescribed Lithium to treat the bipolar disorder.

Reddy saw Domino in April 1995 for a routine follow up

appointment. Reddy continued Domino’s Lithium medication. Reddy

also kept Domino on Prozac because he continued to be depressed,

and scheduled another follow up appointment for June 1995. At this

meeting in June, Reddy continued Domino’s Prozac and Lithium

medications even though Domino refused to permit blood work that

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was necessary to monitor his Lithium medication. Domino continued

to refuse to permit this blood work.

In August 1995, Reddy discontinued both of Domino’s

medications, stating that Domino was not compliant in taking his

medications and refused to permit the necessary blood work. Domino

did not attend his scheduled counseling sessions in September and

October 1995. In December 1995, the entire Psychiatric Team at

Coffield, including Reddy, decided to release him from the active

caseload. Their report stated that Domino was no longer expressing

psychotic symptoms and would be seen only upon request.

Domino was not examined again until June 1996, when he asked

to see a psychiatrist. A member of the Psychiatric Team met with

him, and wrote in Domino’s file that “suicidal ideation was present

but no plan [was] evident.” Domino scheduled another meeting with

a therapist in July 1996, which Domino failed to attend. Domino

next met with a member of the Psychiatric Team on the day of his

suicide, as described above.

The administrator of Domino’s estate, Sherena Domino (“Ms.

Domino”), sued Dr. Reddy and others under 42 U.S.C. § 1983. All

parties consented to a trial by a magistrate judge. More

particularly, Ms. Domino alleges that Reddy was deliberately

indifferent to Domino’s serious medical needs in violation of the

Eighth Amendment’s prohibition of cruel and unusual punishment.

Ms. Domino claims Reddy should have recognized that Domino was

suicidal and either transferred him to Skyview or taken other

measures to prevent his suicide. Reddy moved for summary judgment

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based on qualified immunity, but the magistrate judge denied

Reddy’s motion. This interlocutory appeal followed.

II.

The parties first disagree about whether this court has

jurisdiction over this appeal. This court has stated that:

[A] public official asserting a qualified immunity
defense may not seek interlocutory appellate review of a
district court’s evidence sufficiency determination,
[but] he or she may nevertheless argue on appeal [1] that
the facts, even when viewed in the plaintiff’s favor,
demonstrate that the plaintiff’s constitutional rights
were not violated . . . .

Vance v. Nunnery, 137 F.3d 270, 273 (5th Cir. 1998)(citing Behrens

v. Pelletier, 516 U.S. 299, 116 S.Ct. 834 (1996). In the context

of medical care, a prison official violates the Eighth Amendment

when he acts with deliberate indifference to a prisoner’s serious

medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct.

285, 291-92 (1976). Also, “a serious medical need may exist for

psychological or psychiatric treatment, just as it may for physical

ills.” Partridge v. Two Unknown Police Officers of the City of

Houston, 791 F.2d 1182, 1187 (5th Cir. 1986). Reddy argues that

even when the disputed facts are viewed in Domino’s favor, Reddy

was not deliberately indifferent to Domino’s serious medical needs

and therefore did not violate Domino’s constitutional rights. We

agree with Reddy that this court has jurisdiction over this appeal

to decide that legal issue when the disputed facts are viewed in

Domino’s favor.

III.

Reddy first raises several challenges to the admissibility of

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evidence used by the magistrate in deciding Reddy’s summary

judgment motion. We need not rule on these challenges, because we

hold that even when this disputed evidence is admitted against

Reddy, and the disputed facts are viewed in favor of Ms. Domino,

that Reddy did not act with deliberate indifference to Domino’s

serious medical needs.

This court has stated that the test for qualified immunity “is

quite familiar: (1) whether the plaintiff has alleged a violation

of a clearly established constitutional right; and (2) if so,

whether the defendant’s conduct was objectively unreasonable in the

light of the clearly established law at the time of the incident.”

Hare v. City of Corinth, Miss., 135 F.3d 320 (5th Cir. 1998)(en

banc). As discussed above, the first part of the qualified

immunity test - whether Domino has alleged a violation of a clearly

established constitutional right - depends on whether the summary

judgment evidence, viewed in a light favorable to Ms. Domino,

demonstrates that Reddy was deliberately indifferent to Domino’s

serious medical needs.

The Supreme Court has stated that:

We reject petitioner’s invitation to adopt an objective
test for deliberate indifference. We hold instead that
a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless 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.

Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994)

(emphasis added). Therefore, in order to prove deliberate

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indifference, Domino was required to demonstrate that Reddy both

knew of and disregarded an excessive risk that Domino would commit

suicide.

IV.

The magistrate judge stated that Ms. Domino “presented

competent summary judgment evidence refuting defendant’s claims

that go beyond only questioning Dr. Reddy’s medical judgment . . .

.” Magistrate Judge’s Order of December 17, 1999. R. at 816.

The magistrate went on to hold that:

Reddy’s lengthy periods of absence from treating Domino
and the fact that it only took him five minutes while
Domino was banging his head on his desk to determine
Domino was only seeking secondary gain is sufficient
summary judgment evidence showing a material question of
fact exists as to whether Dr. Reddy’s treatment of Domino
rose to the level of deliberate indifference.

Id. R. at 818-19.

In opposing Reddy’s summary judgment motion, Ms. Domino relied

on several pieces of evidence, including the affidavit of Dr.

Koson. In his affidavit, Dr. Koson states that Reddy’s five minute

evaluation of Domino and subsequent inaction amounted to a “virtual

abandonment” of a patient who was suicidal and experiencing a

mental health crisis. Ms. Domino also presented medical records

showing that Gayle Haynes, the psychologist who met with Domino on

the day of his suicide, wrote in her report that Domino was

“extremely fearful and paranoid. He expressed suicidal ideations.

He was hopeless and depressed.” Ms. Domino also presented the

testimony of a prison guard that escorted Domino to and from his

meeting with Reddy on the day of the suicide. The guard stated

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that the meeting between Domino and Reddy lasted only five minutes.

The guard also stated that during this meeting, Domino was banging

his head on the table loud enough for the guards outside Reddy’s

office to hear.

We disagree with the magistrate judge’s holding that Ms.

Domino has presented sufficient summary judgment evidence to show

that a material question of fact exists as to whether Reddy’s

conduct constitutes deliberate indifference.

The magistrate judge’s statement that Domino was “relatively

unexamined” from June 1995 to August 1996 is inconsistent with the

record. The record reflects that members of the psychiatric unit

were monitoring Domino’s condition. Also, the mental health

professional scheduled counseling sessions for Domino even though

Domino often did not appear for these sessions. The record

therefore reflects the critical fact that Domino was not being

ignored by Reddy and the other psychiatrists.

With respect to the brevity of Dr. Reddy’s final examination

of Domino, Gayle Haynes’ report also reflects that she spent about

five minutes evaluating Reddy. Haynes also testified that Domino

often said that “he’d kill himself, he wanted to die, but he said

that all the time. It wasn’t new.” Haynes’ testimony, taken as a

whole, does not support the conclusion that there was an obvious

risk of suicide on August 2, 1996.

Dr. Koson’s expert report would be valuable in a medical

malpractice suit to support an argument that Reddy made an

incorrect diagnosis. But Koson’s report does not support an

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inference that Domino was so obviously suicidal that Reddy must

have known yet disregarded that risk.

Deliberate indifference is an extremely high standard to meet.

It is indisputable that an incorrect diagnosis by prison medical

personnel does not suffice to state a claim for deliberate

indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985). Rather, the plaintiff must show that the 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.” Id.

Furthermore, the decision whether to provide additional treatment

“is a classic example of a matter for medical judgment.” Estelle,

429 U.S. at 107. And, the “failure to alleviate a significant risk

that [the official] should have perceived, but did not” is

insufficient to show deliberate indifference. Farmer, 511 U.S. at

838.

Suicide is inherently difficult for anyone to predict,

particularly in the depressing prison setting. Collington v.

Milwaukee Co., 163 F.3d 982, 990 (7th Cir. 1998). Reddy presented

evidence that Domino had been a difficult, often uncooperative

patient and concluded that Domino was threatening suicide to obtain

secondary gain. He did not believe the threat was genuine.

Reddy’s diagnosis was wrong. But, as stated above, an incorrect

diagnosis does not amount to deliberate indifference. Johnson v.

Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

CONCLUSION

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 For the above reasons, we are satisfied that the summary

judgment evidence would not permit a reasonable jury to conclude

that Dr. Reddy knew that Domino was a serious suicide risk. The

judgment of the district court is therefore reversed and this case

is remanded to the district court for entry of judgment in favor of

Dr. Reddy.

REVERSED AND REMANDED.

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