United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 29, 2006
Charles R. Fulbruge III
Clerk
No. 05-30820
ANTHONY GOBERT,
Plaintiff-Appellee,
versus
LAWRENCE CALDWELL; MICHAEL HEGMANN,
Defendants-Appellants.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:01-CV-538
Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
A state-prison physician appeals the district court’s denial
of his assertion of qualified immunity from an inmate’s civil
rights action alleging constitutionally inadequate medical care.
We are persuaded that the doctor enjoys immunity and reverse.
I
Anthony J. Gobert was formerly an inmate confined to the Elayn
Hunt Correctional Center in St. Gabriel, Louisiana. Dr. Michael
Hegmann, Medical Director, and Dr. Larry Caldwell, a staff
1
physician (collectively, “Physician Appellants”), worked at the
EHCC during Gobert’s term of imprisonment.
On June 14, 2000, while on work release as a “hopper” on a
garbage collection truck, Gobert’s right leg was crushed below the
knee when the truck collided with another vehicle. He underwent
immediate surgery and initial recovery at St. Anne General Hospital
in Raceland, Louisiana. There, Dr. Morris applied an external
fixator to stabilize Gobert’s injured leg and placed him on
intravenous antibiotics. Dr. Morris’s discharge summary indicated
that Gobert should continue antibiotic treatment and wound
cleansing and that he should have periodic visits with an
orthopedic specialist.
On June 26, 2000, Gobert was admitted into the 24-Hour Unit at
the EHCC infirmary due to the risk of infection. Caldwell,
Gobert’s primary physician, personally examined Gobert on three
occasions during the span of two and one half months, and
apparently issued orders on nine occasions. Though not named in
this suit, a nurse practitioner, Joni Nickens, participated in
Gobert’s care, in addition to other doctors and medical staff.
Gobert complained of wound related discomfort or apprehension
concerning the care of his leg on five occasions.
On September 6, 2000, Gobert was released from prison, and on
September 11, 2000 he sought private medical treatment. On the day
of his appointment, September 18, 2000, Dr. Wilson diagnosed Gobert
2
with osteomyelitis,1 which required multiple corrective
surgeries—the first of which was performed on October 3, 2000.
On July 2, 2001, Gobert filed this 42 U.S.C. § 1983 action,
alleging that Physician Appellants’ failure to treat his injured
and infected leg constituted a violation of his Eighth Amendment
right to medical treatment for serious medical need. After denial
of their motion to dismiss, the Physician Appellants moved for
summary judgment and now appeal the denial of qualified immunity.2
II
“Ordinarily, we do not have jurisdiction to review a denial of
a summary judgment motion because such a decision is not final
within the meaning of 28 U.S.C. § 1291.”3 Under the collateral
order doctrine, however, a district court’s “order denying
qualified immunity, to the extent that it turns on an ‘issue of
law’ is immediately appealable,” as it is “distinct from the
1
Osteomyelitis is an “[i]nflamation of the marrow and hard bone tissue
of bone, usually caused by a bacterial infection.” BLAKISTON’S GOULD MEDICAL
DICTIONARY 964 (4th ed. 1979).
2
Gobert expressly relinquished the federal claims alleged against
Hegmann, pursuing only Louisiana state claims based in negligence. The district
court maintained supplemental jurisdiction over these state law claims under 28
U.S.C. § 1367. Neither party briefed immunity, premised on state law, in defense
of the state claims against Hegmann. See Hernandez v. Tex. Dep't of Protective
& Regulatory Servs., 380 F.3d 872, 885 (5th Cir. 2004). Thus, we do not reach
claims involving Hegmann on this interlocutory appeal from a denial of qualified
immunity in a § 1983 action against only Caldwell.
3
Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999).
3
merits” of the case.4 A district court’s decision to deny
qualified immunity on a motion for summary judgment is “not
appealable if [it is] based on a claim regarding the sufficiency of
the evidence.... Therefore, if the district court concludes that
the summary judgment record raises a genuine issue of material fact
with respect to whether...qualified immunity is applicable, then
that decision is not immediately appealable....”5
The applicable standard of review for “an interlocutory appeal
asserting qualified immunity differs from the standard employed in
most appeals of summary judgment rulings.”6 This court lacks “the
power to review the district court’s decision that a genuine
factual dispute exists.”7 Rather, this court may consider “only
whether the district court erred in assessing the legal
significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.”8 This
4
Behrens v. Pelletier, 516 U.S. 299, 306 & 311 (1996) (quoting Mitchell
v. Forsyth, 472 U.S. 511, 526 & 530 (1985)). Generally, the collateral order
doctrine applies to summary judgments that "[1] conclusively determine the
disputed question, [2] resolve an important issue completely separate from the
merits of the action, and [3] [are] effectively unreviewable on appeal from a
final judgment." Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,
Inc., 506 U.S. 139, 142-43 (1993).
5
Palmer, 193 F.3d at 350-51 (citing Naylor v. State of Louisiana, Dep’t
of Corrections, 123 F.3d 855, 857 (5th Cir. 1997) (per curiam); Petta v. Rivera,
143 F.3d 895, 898 (5th Cir. 1998)) (internal citations omitted).
6
Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).
7
Id.
8
Id. (citing Behrens, 516 U.S. at 313; Johnson v. Jones, 515 U.S. 304,
313 (1995)).
4
court must “accept the plaintiff’s version of the facts as true”
and may review de novo only the purely legal question of whether
“the district court erred in concluding as a matter of law that
officials are not entitled to qualified immunity on [that] given
set of facts.”9
III
Qualified immunity provides government officials performing
discretionary functions with a shield against civil damages
liability, so long as their actions could reasonably have been
thought consistent with the rights they are alleged to have
violated.10 In determining whether an official enjoys immunity, we
ask (1) whether the plaintiff has demonstrated a violation of a
clearly established federal constitutional or statutory right and
(2) whether the official’s actions violated that right to the
extent that an objectively reasonable person would have known.11
Gobert asserts that Caldwell violated the Eighth Amendment’s
prohibition against cruel and unusual punishment by acting with
deliberate indifference to Gobert’s medical needs.12 Caldwell does
9
Id. at 347-48.
10
Anderson v. Creighton, 483 U.S. 635, 638 (1987).
11
Hope v. Pelzer, 536 U.S. 730 (2002); see also Beltran v. City of El
Paso, 367 F.3d 299, 303 (5th Cir. 2004).
12
A serious medical need is one for which treatment has been recommended
or for which the need is so apparent that even laymen would recognize that care
is required. Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187
5
not contest that this right is clearly established.13
Caldwell argues, however, that Gobert fails to meet his burden
under the first prong of the qualified immunity inquiry, for
failure to demonstrate an Eighth Amendment violation.14 Finding a
violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment also requires a twofold analysis. Gobert must
first prove objective exposure to a substantial risk of serious
harm.15 Additionally, he must show that prison officials acted or
failed to act with deliberate indifference to that risk.16
The application of the subjective prong is the primary dispute
here.17 A prison official acts with deliberate indifference “only
if [(A)] he knows that inmates face a substantial risk of serious
bodily harm and [(B)] he disregards that risk by failing to take
(11th Cir. 1994), abrogated on other grounds by Hope, 536 U.S. 730.
13
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“We therefore conclude that
deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.”
(internal quotation and citation omitted)); see also Harris v. Hegmann, 198 F.3d
153, 159 (5th Cir. 1999) (quoting Estelle).
14
“Once raised, a plaintiff has the burden to rebut the qualified
immunity defense by establishing that the official's allegedly wrongful conduct
violated clearly established law.” Estate of Davis v. City of N. Richland Hills,
406 F.3d 375, 380 (5th Cir. 2005) (internal quotation omitted).
15
Farmer v. Brennan, 511 U.S. 825, 834 (1994), cited in Lawson v. Dallas
County, 2002 U.S. App. LEXIS 6543, 8-9 (5th Cir. 2002).
16
Id.
17
Caldwell does not contest that the nature of Gobert’s wound exposed him
to an increased risk of developing an infection, if he did not receive proper
treatment. It is undisputed that the infection also posed a substantial health
risk.
6
reasonable measures to abate it.”18 Unsuccessful medical treatment,
acts of negligence, or medical malpractice do not constitute
deliberate indifference, nor does a prisoner’s disagreement with
his medical treatment, absent exceptional circumstances.19
“Furthermore, the decision whether to provide additional treatment
‘is a classic example of a matter for medical judgment.’"20 A
showing of deliberate indifference requires the prisoner to submit
evidence 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.”21 “Deliberate indifference ‘is an
extremely high standard to meet.’”22
IV
Caldwell contends that Gobert impermissibly relies on
18
Farmer, 511 U.S. at 847; see also Reeves v. Collins, 27 F.3d 174, 176-
77 (5th Cir. 1994).
19
See Banuelos, 41 F.3d at 235; Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991); Hall, 190 F.3d at 697; Stewart v. Murphy, 174 F.3d 530, 537 (5th
Cir. 1999).
20
Domino v. Texas Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir.
2001) (quoting Estelle, 429 U.S. at 107).
21
Id. (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
22
Id.; see also Hernandez, 380 F.3d at 882 (“We begin by emphasizing
that our court has interpreted the test of deliberate indifference as a
significantly high burden for plaintiffs to overcome.”).
7
conclusory statements and speculation,23 while unsuccessfully
meeting the stringent deliberate indifference standard. Caldwell
argues that the record lacks any probative evidence by which the
district court could correctly conclude that Caldwell acted with
deliberate indifference and that the undisputed facts—including
multiple examinations and administered medications, lack of
complaint, and failure to follow orders— contradict the allegations
and exculpate him on the applicable standard.24,25 And Caldwell
23
See Ragas v. Tennessee Gas Pipline Co., 136 F.3d 455, 458 (5th Cir.
1998) (explaining that unsubstantiated assertions are not competent summary
judgment evidence sufficient to defeat a properly supported motion).
24
“Medical records of sick calls, examinations, diagnoses, and
medications may rebut an inmate's allegations of deliberate indifference.”
Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (citing Mendoza v.
Lynaugh, 989 F.2d 191, 193-95 (5th Cir.1993); Bejaran v. Cruz, 79 Fed. Appx. 73,
74 (5th Cir. 2003) (stating that Bejaran's admission in his complaint that the
prison medical staff took x-rays of his back and...gave him "generic," "mild
medications" refute his assertion of deliberate indifference to his medical
needs”).
Caldwell’s rendition of the facts related to treatment are laid out below:
Plaintiff’s leg wound was cleaned, the dressing changed, and/or the
wound examined, every day of his seventy-three (73) day stay at
EHCC, with only three possible exceptions. Plaintiff was seen at
the EKL Orthopedic Clinic for an evaluation on 6/30/00 (four
days after arriving at EHCC), for a follow up visit on 8/1/00, again
on 8/23/00 (the day after he complained of re-injuring himself), and
on 9/1/00 for another follow up visit (even though he had been seen
at EKL Ortho a week earlier). Plaintiff received various medications
every day of his stay at EHCC, including aspirin, Zoloft, Dolobid,
Flexeril, Elavil, Cephalexin, and Cipro. Plaintiff’s leg was x-
rayed, per Dr. Caldwell’s order, on the day after arriving at EHCC
(6/27/00), and Dr. Caldwell subsequently ordered x-rays on at least
two other occasions, 7/21/00 and 7/28/00. When plaintiff was
released from EHCC on September 6, 2000, he was given a follow up
appointment at EKL Ortho Clinic for 9/24/00. Further, Dr. Caldwell
submitted a Recommendation for Off-site Consultation or Testing
(namely, consultation and testing at the EKL Ortho clinic), and
ordered that plaintiff be allowed to go to the front of the pill
call line and to have tape (an otherwise contraband item) in his
possession. On 8/25/00, plaintiff was provided with a wheelchair.
On at least six (6) occasions (6/30/00, 7/18/00, 7/28/00, 8/2/00,
8/25/00, and 9/3/00), the medical record shows that plaintiff was
either “without complaints,” expressed “no complaints,” had “no
8
argues Gobert has not contested the factual account of the medical
observations made and treatment received at EHCC, as described in
Caldwell’s motion for summary judgment. Consequently, Caldwell
believes no genuine issue of material fact exists, either to
preclude jurisdiction or upon which the district court could have
relied to deny his assertion of qualified immunity. We agree.
Gobert contends that the district court’s decision, premised
on the existence of conflicting facts, restricts our review on
interlocutory appeal. However, in his response to Caldwell’s
statement of undisputed facts accompanying the motion for summary
judgment, Gobert failed to raise any conflicting facts but, rather,
recited legal questions. Gobert points to the district court’s
concern over the apparent presence of disputed facts and whether
those facts were probative of mere negligence or deliberate
indifference. The district court explained its concern:
I...think there are just too many issues of
complaints of pain or discomfort at present,” or “no complaints
[were] voiced.” On 7/9/00 plaintiff was reported as not complying
with instructions to keep his leg elevated (“[Patient] [d]enies foot
touching floor even as I am looking [at] same”). On another
occasion, 7/15/00, plaintiff was admonished for being out of bed,
and refused to return to bed until he was able to speak with “rank”
(i.e., Capt. Foster). Plaintiff refused to have his vital signs
taken on 7/13/00. [O]n that same day plaintiff was noted to have
remarked that he “realizes [the] reason [why] nurses have been so
strict [regarding plaintiff’s] activity.” Nevertheless, on 7/21/00,
plaintiff again had to be instructed to keep his leg elevated.
25
Regarding Gobert’s alleged lack of complaint, though a factor, “failure
to give advance notice is not dispositive.” Farmer, 511 U.S. at 847. Failure
to comply with medical instructions is another factor for us to consider in
evaluating deliberate indifference. Hall v. Thomas, 190 F.3d 693 (5th Cir. 1999)
(in affirming summary judgment, we noted that the plaintiff “refused to take his
seizure medication on 28 occasions” and had “no complaints”).
9
fact...[concerning] whether he looked at the
medical records; whether he should have seen
[Gobert] the amount of times he saw him; whether he
was prescribing or not prescribing.... I just see
too many material issues of fact dealing with what
Dr. Caldwell did or didn’t do at appropriate times;
whether he reviewed or didn’t review the medical
records; whether or not other actions should have
been taken; whether or not the records that were
developed at the Earl K. Long Hospital were
appropriately sent and filed in his record; whether
he even should have taken efforts to look at those
records; whether x-rays should have been done
earlier and reviewed earlier...whether there was
probative evidence that Dr. Caldwell did perceive
the plaintiff had an infection prior to August 7,
whether or not he appropriately relied on what the
medical records were....
V
We turn to the question of deliberate indifference to identify
and place in context the material facts in dispute.26 It is Gobert
who must demonstrate disputed facts relevant to the determination
of Caldwell’s alleged deliberate indifference, which when resolved
in Gobert’s favor defeat immunity.27
A
26
See Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001) ("We
have jurisdiction for this interlocutory appeal if it challenges the materiality
of factual issues, but lack jurisdiction if it challenges the district court's
genuineness ruling - that genuine issues exist concerning material facts".)
(emphasis in original); see also Reyes v. City of Richmond, 287 F.3d 346, 351
(5th Cir. 2002) (explaining a "challenge [to] the genuineness, rather than the
materiality, of the factual disputes ... is not reviewable by interlocutory
appeal"); see also Lemoine v. New Horizons Ranch & Center, Inc., 174 F.3d 629,
634 (5th Cir. 1999) (holding that jurisdiction exists for determining if disputed
facts are material).
27
“The plaintiff bears the burden of negating the defense and cannot rest
on conclusory allegations and assertions but must demonstrate genuine issues of
material fact....” Michalik v. Hermann, 422 F.3d 252, 263 (5th Cir. 2005)
(citing Bazan, 246 F.3d at 489).
10
First, the applicable mens rea of deliberate indifference
demands subjective knowledge of a substantial health risk.28 The
parties contest what constitutes a health risk for purposes of an
Eighth Amendment violation, Caldwell contending that knowledge of
the actual infection is required while Gobert argues that awareness
of the potentiality for an infection based on knowledge of the
nature of the wound suffices.
Caldwell represents that he did not actually know that
Gobert’s leg was infected until August 7, 2000 and urges that it is
his response to the risk beginning on this date that should be
examined. Gobert counters, arguing that even if knowledge of an
infection is required, the record evidence demonstrates that
Caldwell knew of Gobert’s condition prior to August 7—in direct
conflict with Caldwell’s testimony. Gobert’s leg exhibited signs
of infection, such as pus, inflammation, and swelling, prior to the
proffered date—signs commonplace and routinely diagnosed.29
Caldwell, himself, stated that knowledge of increased redness or a
yellowish exudate flowing from the wound would elicit a personal
28
See Farmer, 511 U.S. at 847. Again, Caldwell does not challenge
whether an open wound with a fixator device screwed into the bone constitutes a
substantial health risk.
29
As we must focus on Caldwell’s subjective knowledge, expert testimony
cannot create a question of fact as to what Caldwell actually knew. Campbell v.
Sikes, 169 F.3d 1353, 1368 (11th Cir. 1999) (“[S]ince the facts and circumstances
of this case do not allow an inference that Sikes not only should have perceived
the risk but also actually did perceive it, does the opinion testimony by
Plaintiff's medical experts based on those same facts and circumstances provide
the missing Farmer link? The answer is no.”). We caution that the expert
testimony is only probative of what inferences Caldwell, himself, could have
made; whether he should have made the connection is irrelevant to this analysis.
11
evaluation from him, and he noted redness and swelling of the right
foot and a wound dressing saturated with blood on June 26, 2000.
Accordingly, Gobert argues, and the district court found, that a
genuine issue of material fact exists as to Caldwell’s subjective
knowledge concerning the onset of Gobert’s infection. Gobert
submits that this question is appropriately left to the fact finder
and restricts our review of the matter.
This question of fact, however, is immaterial to the first
prong of the deliberate indifference analysis because we are
persuaded that the open wound itself posed a substantial health
risk to Gobert’s health.30 As Gobert also argues, knowledge of the
health risk inherent in the type of wound establishes the requisite
awareness. Gobert points to Caldwell’s deposition, in which
Caldwell testified that an infection, such as osteomyelitis, was a
concern, particularly due to the nature of Gobert’s wound.
Caldwell testified, in a qualified manner, that he would want to
examine such a wound every other day, depending on the nurses’
30
“The question under the Eighth Amendment is whether prison officials,
acting with deliberate indifference, exposed a prisoner to a sufficiently
substantial risk of serious damage to his future health, and it does not matter
whether the risk comes from a single source or multiple sources, any more than
it matters whether a prisoner faces an excessive risk of attack for reasons
personal to him or because all prisoners in his situation face such a risk.”
Farmer, 511 U.S. at 843 (internal quotation omitted and emphasis added). Thus,
the risk must be cognizable, but the consequences of that risk need not yet have
materialized, in order to define the time to begin to determine whether the
defendant disregarded the risk. See Gates v. Cook, 376 F.3d 323, 341 (5th Cir.
2004) (holding that an Eighth Amendment plaintiff did not have to prove that he
was actually injured by exposure to raw sewage, only that such exposure posed a
serious health risk). Rather, the defendant’s action or inaction before the risk
is realized remains relevant to the analysis of deliberate indifference. “A
Remedy need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33
(1993).
12
reports. We agree. There is no question but that Caldwell was
aware of a substantial risk of serious harm to Gobert from the
nature of the wound itself, satisfying the requisite state of mind
for the first prong of the deliberate indifference inquiry. We
proceed to the second prong of the deliberate indifference analysis
in order to determine if a genuine issue of material fact yet
exists.
B
Second, Gobert must demonstrate that Caldwell disregarded the
substantial health risk about which he knew.31 This second prong
proves fatal to Gobert’s claim. Caldwell’s purported failure to
meet the standard of care which he, himself, established, does not
necessarily create a fact question pertaining to deliberate
indifference. That is, Caldwell’s testimony does not define the
applicable standard by which we assess his conduct; deliberate
indifference exists wholly independent of an optimal standard of
care. According to the medical records, Gobert was given medical
treatment for the injury throughout his imprisonment term. Our
question is whether Caldwell purposefully neglected Gobert’s
medical needs, specifically whether the answer to this question
turns on genuine disputed issues of fact.
First, Gobert notes that Caldwell neglected to initially
31
Farmer, 511 U.S. at 847.
13
prescribe antibiotics, in derogation of Dr. Morris’s orders,32
despite appreciating the high risk of infection. Caldwell replies
that when Gobert arrived at EHCC, he was already taking antibiotics
prescribed by the physicians at St. Anne’s hospital. The record is
clear. Gobert took Keflex and Cephalexin, in addition to receiving
topical antibiotics, from June 26, 2000 through July 3, 2000.
There is no indication that Gobert’s prescription for antibiotics
was renewed immediately thereafter, and Gobert’s wound appeared to
improve. Six days later, a note in the medical record documents
redness and serosanguinous drainage at the pin sites. That same
day, July 9, Gobert was seen by a prescribing physician and on the
same day began taking the antibiotic Ciproflaxin.33 Caldwell did
not note any discharge from the wound on the tenth when he examined
Gobert and, therefore, had no reason to conclude that Gobert’s
wound was in need of additional medical care beyond the then
current treatment.34 These facts are uncontroverted and demonstrate
that the EHCC healthcare staff responded to Gobert’s medical needs.
32
Considering and failing to follow the recommendations of another
treating physician does not amount to deliberate indifference. See Stewart, 174
F.3d at 535.
33
The Ciproflaxin was originally prescribed by a Dr. Langston, to last
ten days, and, then, Nickens, apparently with approval of Caldwell, renewed the
prescription for fourteen additional days on July 16. Gobert argues that the
antibiotics, administered orally, were insufficient, and that he should have
received the antibiotics intravenously. However, failure to receive the most
effective treatment cannot form the basis of deliberate indifference but, rather,
sounds in negligence. See Hasty v. Johnson, 103 Fed. Appx. 816, 820 n.2 (5th
Cir. 2004) (unpublished) (dismissing § 1983 claim despite accepting plaintiff’s
contention that he did not receive the optimal drug for his ailment).
34
Moreover, failure to diagnose, alone, does not constitute deliberate
indifference. Johnson, 759 F.2d at 1238.
14
Later entries in the medical record indicate that swelling and
redness reappeared. Caldwell examined Gobert for the last time on
July 20, 2000,35 at which point Gobert complained of spasms,
increased pain, and tenderness at the fixator sites.36 On July 22
and 23, a nurse noted a “[small amount] of yellowish [drainage].”
Gobert’s regimen of antibiotics ended on July 30, 2000, and he did
not receive antibiotics again until August 7, 2000. This period
constitutes Gobert’s strongest case against Caldwell. On August
first, Gobert was seen at the Orthopedics Clinic at Earl K. Long
Medical Center (“EKL”); an antibiotic regimen was not included in
the plan for treatment, and the EKL scheduled Gobert for an
additional follow-up visit on September 1, 2000. That same day, an
EHCC nurse noted yellow exudate at the pin sites. After discharge
from the 24-Hour Unit into the general population dormitory on
August second, pursuant to Nickens’s order,37 Gobert went to the
emergency unit on several occasions. Caldwell issued orders,
35
Continuous personal treatment by the defendant physician is not
constitutionally mandated. Stewart, 174 F.3d at 535.
36
Gobert contends that no notations in the medical record indicate a
course of treatment in response to Gobert’s condition, but Caldwell prescribed
a muscle relaxant, Flexeril, and ordered an X-ray.
37
Gobert argues that this discharge “contributed to or caused the
infection” and asserts that any deflection of responsibility onto
Nickens—reliance on her judgment—is misplaced because Nickens testified that
Caldwell managed Gobert’s care and that Nickens’s decisions were subject to his
authorization. Nickens testified that she discharged Gobert because EKL had
noted healing of the wound, and Caldwell testified that Nickens’s discharge order
was, in retrospect, appropriate. Caldwell cannot be held liable for § 1983
violations under the theory of respondiat superior or vicarious liability. See
Monell v. Department of Social Services, 436 U.S. 658, 693 (1978). Failure to
supervise may comprise a permissible claim but is not alleged in the instant
case. Estate of Davis, 406 F.3d at 381.
15
presumably based on his assessment of Gobert’s medical chart. On
the third, Gobert presented with blood oozing from the pin sites,
and the examining nurse contacted Caldwell.38 Later that same day,
he returned with blood on the wound dressing. Caldwell was again
notified, and he ordered that Gobert go to the head of the pill
call line, receive tape, and go on bed rest. On August fourth,
Gobert’s wound again exhibited yellow exudate and dried blood. On
August fifth, Gobert submitted an Administrative Remedy Procedure
(“ARP”), in which he complained of his infected leg and not being
able to obtain antibiotics.39 On August seventh, Gobert presented
with a fever for the first time, increased swelling and redness
around the pin sites, and a yellowing of the wound area. Though
Caldwell did not see Gobert, he was notified of Gobert’s condition,
and it was at this time that Caldwell says he learned of an
infection; he prescribed the antibiotic Ciproflaxin.
As for the six-day period during which Gobert did not have a
prescription for antibiotics, Caldwell explains that none were
prescribed by the EKL physicians and that he relied on their
judgment as specialists. Gobert contends that the reports do not
even demonstrate that Gobert saw a specialist or a physician at
38
But cf. Stewart, 174 F.3d at 536 (finding no deliberate indifference,
in part, because physician did not read the patient’s chart and was, therefore,
not aware of the infection).
39
Gobert also complains of not receiving an ordered X-ray. There is no
indication that Caldwell knew, at the time, that Gobert had not received
medication or other treatments that he had prescribed. See Stewart, 174 F.3d
at 536 (stating that a physician is not deliberately indifferent for not ensuring
that his orders have been followed).
16
EKL40 and that Caldwell’s deposition testimony reveals that he did
not recall reading the reports from the EKL.41 Gobert argues that
Caldwell cannot rely on an opinion within poorly documented reports
he purportedly did not read to excuse his lack of treatment.42
Gobert maintains that there is a fact question regarding the
precise time at which Caldwell appreciated the infection; that it
bears on the claim of intentional neglect. Accepting this
assertion, we are still left with the reality that no disputed fact
question, when resolved in favor of Gobert, rises to the level of
egregious intentional conduct required to satisfy the exacting
deliberate indifference standard.43 The record of extensive medical
40
Caldwell issued orders on August 1, concerning Gobert’s next
appointment at the orthopedic clinic, consistent with the recommendation of the
EKL, which would suggest that he read the report.
41
No EKL physician is named in Gobert’s medical chart on August first,
as opposed to entries for his previous and subsequent visits.
42
The medical record thereafter documents yellow drainage on seven
occasions. On the last day, a notation reads “MD aware,” and, on that same day,
Dr. Caldwell issued an order to continue the Cipro regimen he had initiated on
8/7/00, though not personally examining Gobert.
43
Gobert also argues that the treatment he received during the final
twelve days of his incarceration, while the medical staff knew of his infection,
constituted deliberate indifference. Gobert re-injured his leg on August 22,
2000, on which date Caldwell prescribed a regimen of Ciproflaxin through
September 5, 2000. On August 23 and 25, 2000, the medical records indicate that
Gobert had increased swelling, increased pain, dried blood on the bandage, two
pitting edema spanning from knee to foot, and a low pulse in his foot. Nickens
noted, “[r]ight leg still swollen [with] pitting edema.... Redness [at]
ext[ernal] fixator site pin sites [with] yellow crusting.... Purulent drainage
on bandage.” On September 1, 2000, an examining nurse noted, “Patient having
trouble filling Cipro[flaxin] [prescription]...erythema at [external fixator
sites]...[anterior] tibial wound [with] purulence...8 weeks [with] no bone
healing, what to do for wound care???” Comments in the medical record over this
period do not indicate any significant improvement in healing. Gobert made his
follow-up appointment at the EKL Orthopedic Clinic on September 1, 2000 where he
was prescribed Cipro, continued to have his wound cleaned, and had a prescription
for antibiotics until his release on September 6, 2000. No additional factual
disputes over this time period bear on the question of our jurisdiction.
17
treatment spanning the final two and one half months of Gobert’s
incarceration and the lack of evidence to establish the necessary
culpable intent say otherwise. We agree that a trier of fact might
find negligence in the one week lapse in antibiotic treatment and
the surrounding circumstances. However, deliberate indifference to
serious medical need could not be sustained and cannot as a matter
of law support a finding of a violation of Gobert’s constitutional
right to be free of cruel and unusual punishment.44
REVERSED.
44
We do not address the second prong of the qualified immunity
analysis—whether in light of the deliberate indifference Caldwell yet acted
reasonably—because we find that the record cannot support a finding of deliberate
indifference.
18