Hampton v. Brindley

IN THE UNITED STATES DISTRICT COURT November 06, 2019

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

GALVESTON DIVISION

JARRETT HAMPTON, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 3:17-CV-299

§

DR. EDGAR HULIPAS, §

§

Defendant. §

§

MEMORANDUM OPINION AND ORDER

State inmate Jarrett Hampton (TDCJ #816800) filed a complaint under 42

U.S.C. § 1983 (Dkt. 1) alleging that he was denied adequate medical care in

violation of his constitutional rights. The only claim that remains in this lawsuit is

Hampton’s allegation that Dr. Edgar Hulipas violated his rights under the Eighth

Amendment by delaying his access to medical care by specialists for a chronic

condition known as sarcoidosis (Dkt. 21). Hampton has filed an amended

complaint concerning this allegation (Dkt. 23) and he has also provided a more

definite statement of the facts in support of this claim (Dkt. 26). Dr. Hulipas has

filed a motion for summary judgment (Dkt. 41). In response, Hampton has filed a

declaration with exhibits (Dkt. 46), a brief in opposition (Dkt. 47), and a statement

of “disputed factual issues” (Dkt. 48). After reviewing all of the pleadings, the

parties’ briefing, the exhibits, and the applicable law, the court will grant the

defendant’s motion and dismiss this case for the reasons that follow.

I. BACKGROUND

Throughout this lawsuit Hampton has been incarcerated by the Texas

Department of Criminal Justice – Correctional Institutions Division (“TDCJ”) at

the Darrington Unit in Rosharon (Dkt. 1, at 1).1 Dr. Hulipas is a physician

employed by the University of Texas Medical Branch (“UTMB”), who works in the

clinic located at the Darrington Unit (Id. at 3). As detailed more fully below,

Hampton contends that Dr. Hulipas violated his rights by delaying his access to

treatment by specialists with the dermatology department at the UTMB Hospital

in Galveston, which provides care for state inmates confined in TDCJ through a

variety of specialty clinics.

A. Records of Hampton’s Medical Care

Dr. Hulipas has provided records of the medical care that Hampton received

during the period of time relevant to this lawsuit (Dkt. 42-1, at 3-105). He has also

provided an affidavit from Dr. Steven Bowers, who is employed by UTMB (Dkt. 42-

3, at 2-7), which summarizes those records in chronological order (Id., at 8-98).

Hampton has also provided medical records with his response to the motion for

summary judgment (Dkt. 46, Exhibits 1-8) which duplicate many of those provided

by the defendant.

1 Unless otherwise indicated, all page numbers reference the pagination imprinted on each docket

entry by the court’s electronic filing system, CM/ECF.

The medical records show that on October 17, 2014, Hampton was seen for

a follow-up appointment with an otolaryngologist at the UTMB Hospital Ear Nose

and Throat (“ENT”) Department, where he was receiving treatment for problems

associated a chronic sinus infection and a history of “left sided nasal obstruction”

that was the result of “nasal trauma” sustained by Hampton “7-8 years ago” (Dkt.

46-8, at 2, 4-5). At some point, a provider authorized endoscopic surgery to correct

Hampton’s deviated septum, which was scheduled to take place on January 8, 2015

(Dkt. 46-1, at 3). The procedure could not be performed as scheduled, however,

because the surgeon (Dr. Paul Brindley) noted that Hampton had what appeared

to be an acute staph infection affecting his columella, which is the bridge or column

separating the nostrils at the cleft of the upper lip (Dkt. 42-3, at 14). Those

symptoms were treated with antibiotics and steroids (Id.).

When the symptoms of infection persisted, the ENT department ordered a

biopsy of the affected area on May 19, 2015 (Id. at 17). Because Hampton’s

infection implicated the skin around his nose, he was referred for an examination

by a specialist in dermatology (Id. at 14).

On November 17, 2015, Dr. Rebecca Phillips examined Hampton at the

UTMB Hospital Dermatology Department for what was described as a “rash on

[his] nose” (Dkt. 42-3, at 17). After considering Hampton’s history of nasal trauma,

Dr. Phillips observed that his symptoms were consistent with a diagnosis of

sarcoidosis (Id. at 17-20).

Dr. Bowers explains that “[s]arcoidosis is a disease characterized by the

growth of tiny collections of inflammatory cells (granulomas),” which can occur in

any part of the body, but appear “most commonly [in] the lungs and lymph nodes”

(Dkt. 42-3, at 6). According to Dr. Bowers, sarcoidosis can also affect “the eyes,

skin, heart and other organs” (Id.). The symptoms, which consist of inflammation

or lesions on the affected tissues, can be relieved with medication, but there is no

known cure for sarcoidosis (Id.). Although there is no known cure, Dr. Bowers

notes that “in many cases, it goes away on its own” (Id.).

During her initial evaluation on November 17, 2015, Dr. Phillips ordered

further tests of the specimen collected during the biopsy on May 19, 2015, to

confirm the diagnosis of sarcoidosis and to determine whether there was “systemic

involvement” (Dkt. 42-3, at 20). Additional tests, which were completed on

November 17, 2015, included chest x-rays, an EKG, urinalysis, CBC, and a complete

metabolic panel (Id.). Hampton was also scheduled for an eye examination and

pulmonary function test at a later date (Id. at 23).

On November 30, 2015, Dr. Phillips confirmed that the specimen taken from

the biopsy of Hampton’s left nasal vestibule on May 19, 2015, was consistent with

the diagnosis of sarcoidosis, but determined from his other test results that the

disease was limited to the skin around his nose and that there was no evidence of

systemic involvement (Dkt. 42-3, at 23). Dr. Phillips reviewed the expected course

of treatment and management options for sarcoidosis of the skin with Hampton’s

“unit provider” by telephone (Id.). The parties do not dispute that Dr. Hulipas was

Hampton’s unit provider and that he is the one who spoke with Dr. Phillips on this

occasion. According to her proposed plan of care, Dr. Phillips prescribed a topical

steroid (fluocinonide 0.05% cream) to be applied to the affected area on

Hampton’s nose (Id.). If there was “no response” to the topical cream, Dr. Phillips

recommended considering “intralesional kenalog” treatment (Id.). If there was

“still no response,” then the plan was to consider another steroid, such as

“hydroxychloroquine” (Id.). Dr. Phillips recommended a follow-up appointment

for Hampton at the dermatology department in three months (Id.).

On December 1, 2015, a nurse practitioner met with Hampton at the

Darrington Unit clinic and reviewed the plan of care that was proposed by Dr.

Phillips to treat sarcoidosis of the skin (Dkt. 42-3, at 26). Consistent with the

proposed treatment plan, Hampton was given a prescription for fluocinonide

cream with instructions to apply a thin layer to the affected area twice a day (Id. at

27). Dr. Hulipas approved the treatment that was dispensed by the nurse

practitioner (Id.).

On December 3, 2015, Hampton saw Dr. Hulipas in the clinic for a follow-

up appointment at the Darrington Unit clinic (Dkt. 42-3, at 29-30). Dr. Hulipas

noted that Hampton was “doing fine” and discussed Hampton’s lab results as well

as the prescribed medication regimen (Id.).

On December 10, 2015, Hampton submitted a “sick call request” to the clinic

at the Darrington Unit, requesting a refill for “saline nasal spray” and to find out

when he was scheduled to return to the UTMB Hospital in Galveston (Dkt. 42-3,

at 32). That same day, Dr. Hulipas approved the requested refill and advised

Hampton that appointments with both the ENT and Dermatology departments

were pending (Id.).

On January 19, 2016, Hampton returned to the ENT department for a

follow-up visit with an otolaryngologist regarding his chronic sinus issues and

history of nasal obstruction (Dkt. 42-3, at 38-40). Hampton reported that he had

been using saline spray to treat nasal dryness and noted that he had a sore throat

(Id. at 38). After strep throat was ruled out, the treating physician prescribed

Claritin, Nasilide nasal spray, and saline nasal spray as needed to treat Hampton’s

symptoms (Id. at 40). After discussing his symptoms, the treatment provider

recommended further deferring surgery to correct Hampton’s deviated septum

until after the inflammation around his nose was resolved (Id. at 39).

On January 21, 2016, Hampton submitted a sick-call request asking for the

medication recommended by the ENT department (Dkt. 42-3, at 45). Dr. Hulipas

noted that the prescription for Claritin had been ordered, but that Nasilide nasal

spray and another prescription for the antibiotic Levaquin required a non-

formulary request (Id.). Dr. Hulipas submitted the non-formulary requests, which

were approved by the prison pharmacy that same day (Dkt. 42-3, at 46-47).

On March 1, 2016, Hampton attended a follow-up appointment at the

hospital in Galveston with Dr. Alison Lowe of the dermatology department (Dkt.

42-3, at 51-56). Dr. Lowe noted “significant improvement” in Hampton’s “nasal

lesion” with the topical cream that had been prescribed by Dr. Phillips on

November 30, 2015 (Id. at 51). Hampton reported that he previously experienced

an episode of dizziness and chest pain, but Dr. Lowe noted that his most recent

EKG was “within normal limits” (Id.). The results of a recent pulmonary-function

test, which was performed on January 25, 2016, were also normal (Id. at 54). Dr.

Lowe elected to continue Hampton’s treatment with fluocinonide 0.05% cream

and recommended a routine follow-up visit to the dermatology department in six

months (Id. at 54-55). With regard to Hampton’s complaints of chest pain, Dr.

Lowe noted that arrhythmia was a concern due to his diagnosis of sarcoidosis, but

that he was currently “asymptomatic” (Id. at 55). She advised Hampton that

“should symptoms [of chest pain] recur,” he should alert his unit physician

immediately to determine whether an EKG or referral to the cardiac department

was warranted (Id.).

On April 22, 2016, Hampton returned to the UTMB Hospital in Galveston

for a follow-up examination for his persistent sinus issues by an otolaryngologist

at the ENT department (Dkt. 42-3, at 60). The examining physician noted that

Hampton continued to receive treatment in the form of a topical steroid cream for

inflammation on his nose caused by sarcoidosis (Id.). He noted “a recent flair [sic]”

of Hampton’s symptoms of inflammation, but that those symptoms were

“currently resolving” (Id.) The physician observed inflammation on Hampton’s

columella and upper lip, which were consistent with his diagnosis of sarcoidosis

(Id. at 61). He also observed “mucosal inflammation” at the juncture of the hard

and soft palate of Hampton’s mouth (Id.). Hampton denied having any “pain in

these lesions” (Id. at 60). The ENT specialist continued Hampton’s prescription

for Nasilide nasal spray and scheduled a routine follow-up appointment in six

months (Id. at 62).

On May 31, 2016, Hampton submitted a sick-call request to medical

providers at the Darrington Unit, advising that he had sarcoidosis and that he had

“developed lesions on the bridge of [his] nose and the back of [his] head” (Dkt. 42-

3, at 65). Hampton stated that the “medication” he had been prescribed previously

was “not working,” that his lymph nodes were “swelling,” and that “other lesions”

were starting to appear (Id.). Hampton noted that he also had a lesion in his mouth

that could not be treated “topically” and he feared that his condition was beginning

to “spread rapidly” (Id.). Noting further that he had a follow-up appointment

scheduled with the dermatology department in September, Hampton asked unit

providers to “notify” the UTMB Hospital of the changes in his condition and to

“recommend [an] early visit” (Id.). Dr. Hulipas received the request and

responded the same day, advising Hampton to keep his upcoming appointment,

which was scheduled for September 2016 (Id.).

On June 22, 2016, Hampton submitted a sick-call request for a refill of his

prescription for loratadine (Claritin) for allergies and associated sinus problems

(Dkt. 42-3, at 67). The request was approved by a nurse practitioner and the

prescription was refilled that same day (Id.).

On July 19, 2016, Hampton submitted a sick-call request for a refill of

Nasonex nasal spray (Dkt. 42-3, at 69). Dr. Hulipas submitted a non-formulary

request for this medication, which was approved by the pharmacy that same day

(Id. at 69-71).

Hampton made no further requests for care or complaints to the medical

department about symptoms of sarcoidosis until August 10, 2016, when he

submitted another sick-call request, advising that “as of lately” he had been

experiencing “some pain” around his “nose area” (Dkt. 42-3, at 73). Hampton

added that the bridge or column between his nostrils was “separating from [his]

face” (Id.). Hampton also noted that he had been having “nose bleeds and puss

[sic] running down from the area” (Id.). Fearing that his sarcoidosis was

“spreading” and that he lacked the proper medication to “slow down this

progression,” Hampton asked officials to contact his dermatologist so that he could

begin a different form of treatment with “interkelog therapy” (Id.).

On August 11, 2016, Hampton was examined by a medical provider at the

Darrington Unit clinic in response to his sick-call request (Dkt. 42-3, at 74).2 The

provider who treated Hampton on that occasion observed “inflammation” on

Hampton’s “columella where it meets the philtrum” or cleft of his upper lip (Dkt.

42-3, at 74). During that examination Hampton was advised to keep his upcoming

appointment with the dermatology department, which was scheduled for

September 6, 2016 (Id.). The provider also continued Hampton’s prescription for

2 Although the record of the examination is signed by Dr. Hulipas and Nurse Annette Jackson (Id.

at 75), Hampton insists that he was examined by Nurse Practitioner Terry Speer and did not see

Dr. Hulipas that day (Dkt. 46, at 5 ¶ 15).

fluocinonide 0.05% cream and prescribed an antibiotic (sulfamethoxazole tablets)

for ten days (Id. at 75).

On August 22, 2016, Hampton submitted a sick-call request, asking for a

refill of his saline nasal spray (Dkt. 42-3, at 78). Dr. Hulipas granted that request

for a refill the same day (Id. at 78-79).

On September 6, 2016, Hampton attended his scheduled appointment with

the dermatology department and was seen by Dr. Elizabeth D. Schepp (Dkt. 42-3,

at 81-84). Hampton reported that “in May or June” he noticed a “new bump on

the roof of his mouth and on his left forehead,” which had “continued to grow in

size” and were “[s]ometimes painful” (Id.). Dr. Schepp observed that he also had

a “new bump on [his] right upper cutaneous lip and his nasal lesions seem[ed] to

be spreading” (Id.). Hampton had no other “skin complaints” that day (Id.), but

Dr. Schepp observed “pink annular plaques with small areas of erosion” near the

border between the hard and soft palates on the roof of Hampton’s mouth (Id. at

82). She also observed a small area of “indurated red-brown papules and plaques

without scale” on the back of Hampton’s head and a small, but “[f]irm round

dermal/subcutaneous nodule without overlying epidermal change” on his left

forehead (Id. at 83). She discussed Hampton’s treatment options, which included

continuing with a topical fluocinonide cream, interkelog therapy, or “PO steroids”

(Id.). She advised him to continue using topical cream for his lesions and

prescribed additional treatment with the steroids Prednisone and Plaquenil for the

flare of his cutaneous sarcoidosis (Id. at 83-84). Dr. Hulipas approved the

prescriptions recommended by Dr. Schepp on September 8, 2016 (Dkt. 42-3, at

86-88).

On September 20, 2016, Hampton returned to the dermatology department

for a follow-up examination with Dr. Schepp (Dkt. 42-3, at 90). Hampton reported

that his lesions “seem[ed] to be getting better” although he admitted that he was

not using the topical cream prescribed by Dr. Schepp because he was “not sure” he

should use it at the same time as the Prednisone and other medication that she had

previously prescribed (Id.). Dr. Schepp noted that his skin lesions were “much

improved” and that the “oral lesion” in his mouth was “mildly improved” (Id. at

92). Dr. Schepp decreased the dosage of Prednisone and scheduled Hampton for

another follow-up examination by telemedicine in one month, noting that the oral

lesion may need a biopsy by the ENT department if it had not improved by then

(Id. at 92-93).

On October 19, 2016, Hampton had a telemedicine appointment with Dr.

Chinelo Ikpeama of the dermatology department (Dkt. 42-3, at 96). Hampton

advised that all of his lesions seemed to be getting better and that he was using the

topical cream “with good result” (Id.). Dr. Ikpeama further decreased Hampton’s

prescription for Prednisone to “taper off” that medication as his skin lesions

continued to improve (Id. at 97). Hampton was given another follow-up

appointment by telemedicine the following month (Id. at 97-98).

B. The Plaintiff’s Claims and Defendant’s Arguments

Hampton filed his civil-rights complaint in this case on October 6, 2017,

complaining primarily that Dr. Brindley denied him adequate medical care for his

deviated septum when he cancelled the surgery on January 8, 2018 (Dkt. 1, at 3, 4;

Dkt. 1-1, at 1). Hampton’s claims against Dr. Brindley were dismissed with

prejudice and severed from this case in a memorandum opinion and order entered

on July 27, 2018 (Dkt. 21). A final judgment on those claims was also entered that

same day (Dkt. 22).

Hampton also alleged that Dr. Hulipas violated his constitutional rights by

failing to conduct a physical evaluation of his symptoms of sarcoidosis after

Hampton submitted his sick-call request on May 31, 2016, before advising

Hampton to keep his previously scheduled appointment with the dermatology

department (Dkt. 1-1, at 1-2; Dkt. 26, at 17). Noting that he was not seen by a

specialist in the dermatology department until September 6, 2016, Hampton

contends that Dr. Hulipas acted with “negligence” by failing to immediately refer

him to a specialist, which delayed his access to care for symptoms of sarcoidosis

that had “aggressively progressed” (Dkt. 23, at 11). Hampton seeks unspecified

compensatory and punitive damages from Dr. Hulipas under 42 U.S.C. § 1983 for

violating his rights under the Eighth Amendment (Id. at 14).

Asserting qualified immunity, Dr. Hulipas moves for summary judgment

under Rule 56 of the Federal Rules of Civil Procedure. Specifically, Dr. Hulipas

contends that he did not violate Hampton’s constitutional rights by disregarding a

serious risk to Hampton’s health and that the delay in seeing a specialist did not

cause substantial harm or pose a violation of the Eighth Amendment, which is a

prerequisite for establishing a claim under 42 U.S.C. § 1983 (Dkt. 41, at 10-18).

II. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that a reviewing

court “shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986). Under the well-established summary-judgment standard, a fact is

“material” if its resolution in favor of one party might affect the outcome of the suit

under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a

verdict for the nonmoving party. Id. If the movant demonstrates the absence of a

genuine issue of material fact, the burden shifts to the non-movant to go beyond

the pleadings and provide “specific facts showing the existence of a genuine issue

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986) (emphasis omitted).

A reviewing court “must view the evidence introduced and all factual

inferences from the evidence in the light most favorable to the party opposing

summary judgment[.]” Smith v. Regional Trans. Auth., 827 F.3d 412, 417 (5th Cir.

2016). However, a non-movant cannot avoid summary judgment simply by

presenting “conclusory allegations and denials, speculation, improbable

inferences, unsubstantiated assertions, and legalistic argumentation.” Jones v.

Lowndes Cnty., Miss., 678 F.3d 344, 348 (5th Cir. 2012) (citations and internal

quotation marks omitted). In other words, the non-movant’s burden is not met by

the manufacture of “some metaphysical doubt as to the material facts.”

Matsushita, 475 U.S at 586; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (stating that a non-movant cannot demonstrate a genuine issue of

material fact with conclusory allegations, unsubstantiated assertions, or only a

scintilla of evidence) (citations and internal quotation marks omitted).

The court is mindful of the fact that the plaintiff proceeds pro se in this case.

Courts are required to give a pro se litigant’s contentions, however inartfully

pleaded, a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Haines v. Kerner, 404

U.S. 519, 520 (1972) (noting that allegations in a pro se complaint are held to less

stringent standards than formal pleadings drafted by lawyers). The traditional

standard of leniency toward pro se pleadings, however, does not excuse a pro se

plaintiff from “the burden of opposing summary judgment through the use of

competent summary judgment evidence.” Malcolm v. Vicksburg Warren Sch.

Dist. Bd. of Trustees, 709 F. App’x 243, 246 (5th Cir. 2017) (per curiam) (citing

Davis v. Fernandez, 798 F.3d 290, 293 (5th Cir. 2015) (“Of course, this is not to

say that pro se plaintiffs don’t have to submit competent evidence to avoid

summary judgment, because they do.”)).

III. DISCUSSION

Dr. Hulipas has moved for summary judgment on the issue of qualified

immunity,3 which is “an immunity from suit rather than a mere defense to

liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)). The doctrine of qualified immunity shields

public officials acting within the scope of their authority from claims for monetary

damages so long as “their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Id. at 231

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When properly

applied, it protects ‘all but the plainly incompetent or those who knowingly violate

the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)); see also Carroll v. Carman, 574 U.S. 13, 17 (2014)

(reversing a decision that denied qualified immunity).

A plaintiff seeking to overcome qualified immunity must satisfy a two-prong

inquiry by showing: “(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Al-Kidd, 563 U.S. at 735 (citation omitted). “A good-faith assertion of

qualified immunity alters the usual summary judgment burden of proof, shifting it

to the plaintiff to show that the defense is not available.” King v. Handorf, 821 F.3d

650, 653 (5th Cir. 2016) (citations and internal quotation marks omitted). “The

3 The district court previously dismissed Hampton’s claims against Dr. Hulipas in his official

capacity as a state employee (Dkt. 21, at 11).

plaintiff must rebut the defense by establishing that the official’s allegedly

wrongful conduct violated clearly established law and that genuine issues of

material fact exist regarding the reasonableness of the official’s conduct.” Id. at 654

(quoting Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419

(5th Cir. 2008)). “To negate a defense of qualified immunity and avoid summary

judgment, the plaintiff need not present ‘absolute proof,’ but must offer more than

‘mere allegations.’” Id. (quoting Manis v. Lawson, 585 F.3d 839, 843 (5th Cir.

2009)).

Hampton contends that Dr. Hulipas is liable under 42 U.S.C. § 1983 for

violating his constitutional rights under the Eighth Amendment, which prohibits

cruel and unusual punishment. Dr. Hulipas argues that he is entitled to qualified

immunity and dismissal of the complaint against him because Hampton does not

demonstrate that a violation of the Eighth Amendment occurred. To prevail on a

claim in this context a prisoner must demonstrate that a prison medical provider

has acted with “deliberate indifference” to a “serious medical need” in a manner

that constitutes “the unnecessary and wanton infliction of pain[.]” Estelle v.

Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted);

see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (emphasizing that “only the

unnecessary and wanton infliction of pain implicates the Eighth Amendment”)

(quoting Wilson v. Seiter, 501 U.S. 294, 297 (1988)). To establish the requisite

deliberate indifference under the Eighth Amendment a prisoner must show that

the defendant was both (1) aware of facts from which an inference of an excessive

risk to the prisoner’s health or safety could be drawn, and (2) subjectively drew an

inference that such potential for harm existed. See Farmer, 511 U.S. at 837;

Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (reciting the deliberate-

indifference standard articulated in Farmer).

The Eighth Amendment’s deliberate-indifference standard is an “extremely

high” one to meet. Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756

(5th Cir. 2001). A failure to act “unaccompanied by knowledge of a significant risk

of harm” is insufficient to establish a constitutional violation. Farmer, 511 U.S. at

837-38. It is not enough to identify a significant risk that the official “should have

perceived but did not.” Id. at 838. “Actions and decisions by officials that are

merely inept, erroneous, ineffective or negligent” do not amount to deliberate

indifference. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). A

showing of deliberate indifference to medical needs requires the prisoner to submit

evidence that prison medical providers “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.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (citation and

internal quotation marks omitted). The Fifth Circuit has further emphasized

allegations of “delay in medical care can only constitute an Eighth Amendment

violation if there has been deliberate indifference that results in substantial harm.”

Rogers v. Boatright, 709 F3d 403, 410 (5th Cir. 2013) (emphasis in original)

(quoting Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)); see also Mendoza

v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).

Hampton contends that Dr. Hulipas violated the Eighth Amendment by not

requesting an immediate referral for an appointment with the dermatology

department when Hampton submitted his sick-call request on May 31, 2016.

Instead, Dr. Hulipas advised Hampton to wait for his scheduled appointment on

September 6, 2016, without conducting a physical examination before he

determined that Hampton could wait to see a specialist. Hampton accuses Dr.

Hulipas of “negligence” and alleges that his symptoms of sarcoidosis “aggressively

progressed” as a result of the delay (Dkt. 23, at 11).

Allegations of negligence or medical malpractice are not sufficient to

establish a violation of the Eighth Amendment and are not actionable under 42

U.S.C. § 1983. See Estelle, 429 U.S. at 106 (“[A] complaint that a physician has

been negligent in diagnosing or treating a medical condition does not state a valid

claim of medical mistreatment under the Eighth Amendment.”); Gibbs v.

Grimmette, 254 F.3d 545, 549 (5th Cir. 2001) (observing that “mere negligence in

failing to supply medical treatment” is insufficient to establish deliberate

indifference) (citations omitted); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.

1991) (per curiam) (stating that allegations of “[m]ere negligence, neglect or

medical malpractice” do not give rise to a cause of action under 42 U.S.C. § 1983).

The medical records do not support a claim that Dr. Hulipas was negligent

or that he intentionally disregarded a serious risk of harm when he reviewed the

sick-call request submitted on May 31, 2016, and determined that Hampton could

wait to be seen until his scheduled appointment in September. In his sick-call

request of May 31, 2016, Hampton complained of skin lesions and other symptoms

he feared were spreading because his medication was “not working” (Dkt. 42-3, at

65). When considering that sick-call request, Dr. Hulipas was aware of Hampton’s

diagnosis of sarcoidosis of the skin without systemic involvement and the

recommended plan of treatment, which consisted of applying topical cream to the

affected area (Dkt. 42-3, at 29-30). Dr. Hulipas was also aware that Hampton was

being followed for his condition by specialists with both the ENT dermatology

departments, who had examined Hampton in the months preceding the sick-call

request submitted on May 31, 2016, and determined that Hampton’s condition was

responding to treatment with topical cream.

The medical records confirm that Hampton was seen by the dermatology

department on March 1, 2016, where the specialist observed that his symptoms

were responding to the topical cream and that he did not need to return for six

months. Hampton has alleged that he was told to notify unit providers of any “new

abnormal changes” in his condition to obtain “an earlier Dermatology visit before

September, 2016” (Dkt. 1-1, at 1). However, he provides no competent summary-

judgment evidence in support of this contention. As Dr. Bowers notes, the records

contain no instruction from the specialist that Hampton return to the dermatology

department sooner if his skin lesions flared up (Dkt. 42-3, at 6). Rather, the

treatment notes from Hampton’s examination reflect that the specialist was more

concerned about symptoms of heart arrhythmia, which did not recur (Dkt. 42-3, at

55). Apart from these concerns, the specialist indicated that Hampton did not need

to return to the dermatology department until September (Id.). Hampton’s sick-

call request of May 31, 2016, did not include complaints of chest pain or heart

palpitations of the sort identified as a potential concern by the dermatologist who

treated Hampton on March 1, 2016 (Dkt. 42-3, at 65).

The medical records also confirm that Hampton saw a specialist with the

ENT department on April 22, 2016 (Dkt. 42-3, at 60-63). The ENT specialist noted

inflammation on the columella or bridge of Hampton’s nose and the roof of his

mouth, but also noted that Hampton did not complain of any pain from his skin

lesions, which were “resolving” or responding to the topical cream (Id. at 60).

Other than inflammation that was responding to the topical treatment, the records

from this examination reflect no signs of worsening symptoms of sarcoidosis.

The sick-call request that Hampton submitted on May 31, 2016, which

concerned skin lesions on the bridge of his nose and inside of his mouth, described

symptoms similar to those observed by the specialist on that occasion and the ENT

specialist on April 22, 2016. Medical records of care provided after May 31, 2016,

support Dr. Hulipas’s determination that Hampton could wait to keep his

scheduled appointment in September and did not need an earlier referral. In that

respect, the sick-call requests that Hampton submitted in June and July 2016,

requested refills of allergy medicine and nasal spray, but made no mention of

complications from sarcoidosis and contained no complaints of pain (Dkt. 42-3,

at 69). Hampton did not request for additional care from the medical department

or mention of any pain or symptoms associated with sarcoidosis until he submitted

a sick-call request on August 10, 2016 (Id. at 73).4

Hampton claims that by August 10, 2016, his nose was separating from his

face and that a lay person could have seen that he needed an emergency referral to

a specialist (Dkt. 47, at 29-30). The medical records do not support this allegation.

The medical provider who examined Hampton at the Darrington Unit on August

11, 2016, treated him for inflammation on the bridge between his nostrils, but did

not observe anything that warranted an expedited appointment with a specialist

(Dkt. 42-3, at 74-75). As a result, the provider encouraged Hampton to keep his

upcoming scheduled appointment with the dermatology department (Id.).

When Hampton was seen for his scheduled appointment with the

dermatology department on September 6, 2016, the examining physician noted a

flare of his condition that was isolated to several small nodules and skin lesions,

but observed that there were no symptoms associated with progression of

4 On June 5, 2016, Hampton filed a Step 1 Offender Grievance Form (#2016155022), claiming that

Dr. Hulipas had delayed his access to care for a deviated septum, acute sinus infection, and

sarcoidosis by failing to recommend an earlier appointment with the dermatology department in

response to the sick-call request that he submitted on May 31, 2016. Dkt. 42-5, at 3. On June 28,

2016, the grievance investigator confirmed that Hampton had an upcoming appointment with a

specialist and advised Hampton to submit another sick-call request if he had “any other medical

issues[.]” Id. at 4. Hampton filed a Step 2 grievance to challenge that result on July 13, 2016. Id.

at 6. The official who reviewed the Step 1 and Step 2 grievances responded on August 26, 2016,

that unit providers have “no control over scheduling” appointments for specialists at the hospital

in Galveston, but that Hampton had appointments scheduled with the dermatology department in

September and with the ENT department in October. Id. at 6. There is no evidence that Dr.

Hulipas was ever made aware of these grievances.

sarcoidosis to systemic involvement of any other organ and no signs supporting

Hampton’s claim that his nose was disfigured as the result of delay in receiving

care for his chronic condition (Id. at 81-84). Records of the follow-up examination

on September 21, 2016, confirmed no spread of the disease beyond Hampton’s skin

(Id. at 90-94).

In Dr. Bowers’ opinion, Dr. Hulipas complied with UTMB policies and

followed the appropriate standard of care when he determined on May 31, 2016,

that an expedited appointment with the dermatology department was not needed

(Dkt. 42-3, at 7). In making that determination, Dr. Hulipas confirmed that

Hampton had an appointment with a specialist at the dermatology department

that was scheduled for September. The medical records reviewed by Dr. Hulipas

reflected that Hampton had been receiving care for his chronic condition and that

the symptoms referenced in his sick-call request were substantially similar to those

observed during his examination by specialists at the dermatology department on

March 1, 2016, and the ENT department on April 22, 2016. Hampton did not

complain of any pain from the lesions or heart arrhythmia that could indicate

worsening symptoms of sarcoidosis. Viewing all of the facts in the light most

favorable to Hampton, as non-movant, he does not raise a genuine issue of

material fact demonstrating that Dr. Hulipas was aware of objective facts posing

an excessive risk to Hampton’s health when he considered the sick-call request on

May 31, 2016, or that Dr. Hulipas subjectively drew an inference that such a risk

existed on that occasion, but deliberately disregarded that risk by failing to order

an expedited referral to the dermatology department.

To the extent that Hampton disagrees with the determination that Dr.

Hulipas made on May 31, 2016, that he could wait to see a specialist until

September 6, 2016, a prisoner’s disagreement or difference of opinion with a

medical provider’s judgment is not sufficient to state an actionable claim under the

Eighth Amendment. See Estelle, 429 U.S. at 107 (explaining that a physician’s

decision that treatment is not indicated “is a classic example of a matter for medical

judgment”). Even if the determination was mistaken, a claim of negligence or

medical malpractice does not rise to the level of deliberate indifference or cruel and

unusual punishment in violation of the Eighth Amendment. See id. at 106; see also

Domino, 239 F.3d at 756 (“It is indisputable that an incorrect diagnosis by prison

medical personnel does not suffice to state a claim for deliberate indifference.”)

(citation omitted).

Because there is no evidence that Dr. Hulipas deliberately ignored a serious

risk of harm by failing to request an earlier appointment with a specialist on May

31, 2016, Hampton’s arguments are insufficient to raise a genuine issue of material

fact on whether a constitutional violation occurred and he has not overcome Dr.

Hulipas’ entitlement to qualified immunity. Therefore, the defendant’s motion for

summary judgment will be granted and this case will be dismissed.

IV. CONCLUSION AND ORDER

Based on the foregoing, the court grants Dr. Edgar Hulipas’ motion for

summary judgment (Dkt. 42) and dismisses this case with prejudice.

The Clerk is directed to provide a copy of this memorandum opinion and

order to the parties of record.

November 6th

SIGNED at Galveston, Texas, on , 2019.

_________________________

JEFFREY VINCENT BROWN

UNITED STATES DISTRICT JUDGE