Hall v. Thomas

                    REVISED SEPTEMBER 29, 1999
              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-20571


     ROBERT ARTHUR HALL,

                                     Plaintiff-Appellant,

                                v.

     TOMMY B. THOMAS, Sheriff; ET AL.,

                                     Defendants,

     TOMMY B. THOMAS, Sheriff; K.W. BERRY, Major; MIKE SEALE,
     Doctor; M.W. QUINN, Major; C. TRINH, Doctor; DONALD KLEIN,
     Doctor; MARK CHASSAY, Doctor; K. HOWARD, Nurse; M. GUICE,
     Doctor; A. PHI, Doctor; KHAM LUU, Doctor,

                                     Defendants-Appellees.

                  _______________________________
           Appeal from the United States District Court
                for the Southern District of Texas
                  _______________________________
                         September 28, 1999
Before POLITZ, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:

     Appellant Robert Arthur Hall (“Hall”) appeals the decision

of the district court dismissing his 42 U.S.C. § 1983 and

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132,

claims for failure to state a claim against appellees Sheriff

Tommy B. Thomas (“Sheriff Thomas”), Major K.W. Berry (“Major

Berry”), Major M.W. Quinn (“Major Quinn”) and Nurse K. Howard

(“Nurse Howard”), and on the merits as to Drs. Mike Seale, C.

Trinh, Donald Klein, Mark Chassay, M. Guice, A. Phi and Kham Luu
(collectively, “the doctors”).        We affirm.




              I.       Factual and Procedural Background

     The United States Marshals arrested Hall on February 21,

1995, for a violation of the terms of his parole.            They promptly

delivered Hall to the custody of the Harris County Jail (“HCJ”).

While incarcerated, Hall objected to the quality of the medical

treatment he received.      So, on March 18, 1997, alleging that the

HCJ had violated § 1983 and the ADA, Hall filed suit.            He averred

that the HCJ medical staff was deliberately indifferent to his

kidney condition, to his orthopedic pains, to his diabetes, and

to his epilepsy.

     The district court granted summary judgment for the

defendants on January 15, 1998.           In its opinion, the court found

that Hall had failed to state a claim against Sheriff Thomas,

Major Berry or Major Quinn because Hall had failed to specify any

conduct on the part of these individuals that contributed to a

deprivation of a constitutional right.1          With respect to the

doctors, the court held that Hall had not presented any evidence

of conduct that constituted deliberate indifference to a serious

medical need.      The district court also dismissed the ADA claims


     1
            In a supplemental opinion dated June 5, 1998, the district court
dismissed Hall’s case against Nurse Howard on the grounds that Hall had not
set forth a claim against Nurse Howard that was not foreclosed by the January
15, 1998 opinion.

                                      2
against all defendants because it held that the ADA did not apply

to prisons.   Finally, the district court held that even if the

ADA did apply to prisons, the defendants would be qualifiedly

immune from suit thereunder because Hall’s rights under the ADA

were not clearly established at the time of the alleged

violations.

     Hall filed a pro se appeal.

                     II.      Standard of Review

     We apply de novo review to a district court’s decision to

grant summary judgment.     See Prytania Park Hotel, Ltd. v. General

Star Indem. Co., 179 F.3d 169, 173 (5th Cir. 1999).     Summary

judgment is proper if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.”    Fed. R. Civ. Proc. 56(c); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).    “Under this

standard, all fact questions must be viewed in the light most

favorable to the non-moving party, and questions of law are

reviewed de novo.”     Horton v. City of Houston, 179 F.3d 188, 191

(5th Cir. 1999).

     We likewise review the district court’s decision to dismiss

a complaint under Rule 12(b)(6) de novo.     Lowrey v. Texas A & M

Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997).     This disfavored



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motion should not be granted unless “it appears beyond a doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.”       Conley v. Gibson, 355

U.S. 41, 45-46 (1957).   In so determining, the district court

must liberally construe the complaint in favor of the plaintiff

and assume that all facts pleaded in the complaint are true.          See

Brown v. Nationsbank Corp., — F.3d — (5th Cir. 1999), available

at 1999 WL 695692 (5th Cir. (Tex)), *4.

          III.     The ADA Claim and Qualified Immunity

     Hall argues that Pennsylvania Dep’t of Corrections v.

Yeskey, 118 S. Ct. 1952 (1998), mandates reversal of the district

court’s dismissal of his ADA claim.       Moreover, Hall maintains

that the district court erred when it found the defendants were

entitled to qualified immunity.       The defendants counter that,

though Yeskey alters one of the district court’s holdings, it

does not disturb the lower court’s alternative holding regarding

qualified immunity because Hall’s right to sue under the ADA was

not clearly established prior to Yeskey.

     Yeskey squarely and unmistakably holds that “the ADA plainly

covers state institutions without any exception that could cast

the coverage of prisons into doubt.”       Id. at 1953.   Thus, the

district court did err, though understandably so, when it held

that the ADA did not apply to prisons.

     Nevertheless, we need not reverse the outcome.       The district


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court correctly held that the defendants were entitled to

qualified immunity.    The wrongful act here alleged is the

administration of medical care to Hall; this is a discretionary

function.    “[G]overnment officials performing discretionary

functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.”    Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).    To determine “reasonableness” for purposes of this

standard, we look to the legal rules that were clearly

established at the time of the alleged violation.       Anderson v.

Creighton, 483 U.S. 635, 639 (1987).      “Objective reasonableness

is a matter of law for the courts to decide[.]”       Williams v.

Bramer, 180 F.3d 699, 702 (5th Cir. 1999).

     Under Siegert v. Gilley, 500 U.S. 226 (1991), we must apply

a two pronged test to ascertain the viability of a defendant’s

assertion of qualified immunity.       First, we must examine whether

Hall has pleaded an ADA violation.       See id. at 232; see also

Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998).       The district

court found that Hall had not stated a claim under the ADA.         We

agree.    At no place in the complaint does Hall allege that a

defendant’s specific, individual conduct discriminated against

him because of his disability.    In fact, Hall claims that an

unserved defendant, Deputy Sheriff Marcorif Thomas, mistakenly



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indicated that Hall was not disabled (or, at least, not as

disabled as he was) upon his admission to HCJ in February, 1995.

Thus, any alleged discriminatory conduct could not have been

“because of” Hall’s disability, since the relevant actors were

not apprised of Hall’s status as a disabled person.

     Even if Hall had stated a claim under the ADA, however, the

defendants would still be entitled to qualified immunity.    Under

the second prong of the Siegert test, we must ask whether the

defendants’ conduct was objectively reasonable in light of

“clearly established” law at the time of the alleged violation.

Siegert, 500 U.S. at 231-32; see also Evans v. Ball, 168 F.3d

856, 860 (5th Cir. 1999).   The clearly established law prior to

Yeskey did not include the principle that the ADA applied to

prisons because neither the Fifth Circuit nor the Supreme Court

had spoken on the issue.    See Gunaca v. State of Texas, 65 F.3d

467, 475 (5th Cir. 1995) (“The right . . . was not clearly

established at the time [defendant] allegedly violated it because

neither the Fifth Circuit nor the Supreme Court had addressed

[it.]”).   Moreover, a circuit split existed on the very question.

Compare, e.g., Crawford v. Indiana Dep’t of Corrections, 115 F.3d

481, 487 (7th Cir. 1997) (ADA applies to prisons) with Amos v.

Maryland Dep’t of Pub. Safety and Correctional Servs., 126 F.3d

589, 601 (4th Cir. 1997), judgment vacated by 118 S. Ct. 2339

(1998) (ADA does not apply to prisons).   And we have consistently



                                  6
and “decisively rejected the retroactive application of new legal

standards to . . . claims involving qualified immunity.”             Harper

v. Harris County, Texas, 21 F.3d 597, 601 (5th Cir. 1994).

Therefore, Hall’s right to be free from discrimination on the

basis of his disability in prison was not clearly established at

the time of the alleged violations, and the defendants could not

reasonably have known that their actions might incur liability

under the ADA.     For these reasons, the defendants are entitled to

qualified immunity, and we therefore affirm the decision of the

district court on this point.



                        IV.       The § 1983 Claim

     Hall argues that his complaint states an Eighth Amendment

claim because it alleges that the medical staff failed to

administer 180 doses of his seizure medicine over a one year

period, and that such a lapse evinces deliberate indifference to

a serious medical need.2       Hall further complains that Drs.

Chassay and Luu unethically doubled his dosage to compensate for

the missed medication.        The doctors counter by arguing that Hall

himself refused to take his seizure medication on 28 separate

occasions, and, at other times, refused to appear when the nurse


     2
            Since Hall did not argue on appeal that the medical treatment he
received for his chronic kidney ailment, his orthopedic pain or his diabetes
constituted deliberate indifference to a serious medical need, he has
abandoned any claims he had with respect to these matters. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (“[Appellant] has abandoned
these arguments by failing to argue them in the body of his brief.”).

                                      7
arrived to dispense the medication.    The doctors also argue that

the double dosages of medication were not dangerous, that they

adequately monitored Hall’s progress on the medicine, and that no

evidence suggests that Hall was ever over-medicated.

     The district court found that Hall’s allegations, even if

true, did not describe deliberate indifference to a serious

medical need.   We agree.   “To violate the Cruel and Unusual

Punishment Clause, a prison official must have a ‘sufficiently

culpable state of mind.’” Farmer v. Brennan, 511 U.S. 825, 834

(1994) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)).      “In

prison-conditions cases that state of mind is one of ‘deliberate

indifference’ to inmate health or safety.”    Id.   “Deliberate

indifference to serious medical needs of prisoners,” for

instance, “constitutes the ‘unnecessary and wanton infliction of

pain’ proscribed by the Eighth Amendment.”    Estelle v. Gamble,

429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153,

173 (1976), order vacated by 429 U.S. 875 (1976)).     To be

deliberately indifferent, a prison official must “know[] of and

disregard[] an excessive risk to inmate health or safety[.]”

Farmer, 511 U.S. at 837; see also Stewart v. Murphy, 174 F.3d

530, 533 (5th Cir. 1999).    For this reason, allegations of

malpractice or negligence will never state a claim under the

Eighth Amendment.   See Estelle, 429 U.S. at 105 (“[A] complaint

that a physician has been negligent in diagnosing or treating a



                                  8
medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment.”); see also Stewart, 174

F.3d at 534 (“[A]lthough inadequate medical care may, at a

certain point, rise to the level of a constitutional violation,

malpractice or negligent care does not.”).

     The summary judgment evidence reveals that Hall refused to

take his seizure medicine on 28 occasions.   Moreover, Dr. Seale

testified that the efforts of Drs. Chassay and Luu to bring

Hall’s medication levels within therapeutic limits were not

dangerous, and that Hall was not over-medicated.   Dr. Seale

further testified that even if the nurses were intentionally

refusing to dispense the seizure medication to Hall–a contention

that Dr. Seale vigorously opposed–the doctors Hall sued were not

responsible for these acts, since such conduct would have been in

clear contravention of the prison’s policy and the doctors’

mandate.   Finally, at a doctor’s appointment on June 4, 1996,

Hall told Dr. Phi that he had “no complaints” with his seizure

medication.   Hall also confided that his last seizure occurred

eight months prior, presumably in November, 1995, a month in

which Hall refused to take his seizure medication for two days in

a row.   In response to this testimony, Hall cites only his own

conclusory pleadings.   Yet Hall’s subjective complaints,

unsupported by evidence, are insufficient to defeat the doctors’

summary judgment evidence.   See Morris v. Covan World Wide



                                 9
Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (“[T]he nonmoving

party may not rest upon the mere allegations or denials of its

pleading, and unsubstantiated or conclusory assertions that a

fact issue exists will not suffice.”).

     The overwhelming evidence demonstrates that Hall had access

to his doctors, who prescribed a helpful medication, the dosage

of which varied, at least in part, because of Hall’s own conduct.

Any additional causes for Hall missing his seizure medication

cannot be attributed to Hall’s doctors.    And despite the lower

dosages, Hall was seizure free between November 1995 and June

1996.   He even told his doctors he had “no complaints.”   This is

simply not a scenario consistent with deliberate indifference to

a serious medical need.   At its most egregious, Hall’s evidence

may suggest negligence, but that is insufficient to support an

Eighth Amendment claim.   We therefore agree with the district

court and affirm its grant of summary judgment to the doctors.



                          V.      Conclusion

     The district court erred in finding that the ADA did not

apply to prisons, but we AFFIRM because the defendants are

entitled to qualified immunity.    Moreover, we AFFIRM the grant of

summary judgment to the doctors because Hall did not present

evidence of facts consistent with a deliberate indifference to a

serious medical need.



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AFFIRMED




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