Lavergne v. Lavespere

Case: 24-30317 Document: 48-1 Page: 1 Date Filed: 04/11/2025

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 24-30317

____________ FILED

April 11, 2025

Brandon Scott Lavergne, Lyle W. Cayce

Clerk

Plaintiff—Appellant,

versus

Randy Lavespere, Doctor/Medical Director- Louisiana State

Penitentiary; Cindy Park, Nurse Practitioner- Louisiana State

Penitentiary; Brady Boudin, Respiratory Specialist - Louisiana

State Penitentiary; Jacob C. Johnson, Hospital Administrator -

Louisiana State Penitentiary,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:21-CV-344

______________________________

Before Dennis, Haynes, and Engelhardt, Circuit Judges.

Per Curiam: *

Brandon Scott Lavergne filed a pro se 42 U.S.C. § 1983 suit against

medical personnel at the Louisiana State Penitentiary (“LSP”); namely, Dr.

Randy Lavespere, a former LSP medical director; hospital administrator

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 24-30317

Jacob C. Johnson; nurse practitioner Cindy Park; and respiratory specialist

Brady Baudin. Alleging that the defendants acted with deliberate

indifference to his serious medical needs by failing to treat his sleep apnea,

Lavergne requested injunctive relief and damages. The district court

dismissed some of the claims and granted the defendants’ motion for

summary judgment on the remaining claims. We AFFIRM.

I. Background

Lavergne filed his complaint in 2021 and supplemented it with a

verified statement in February 2022. 1 Lavergne arrived at LSP in 2012 with

a continuous positive airway pressure machine (“CPAP”) for treating sleep

apnea, a condition with which he had recently been diagnosed. LSP

apparently denied Lavergne use of the CPAP machine, which led him to file

a separate lawsuit in 2013 against LSP personnel alleging a violation of his

Eighth Amendment rights. 2 In August 2014, Dr. Lavespere ordered a sleep

study for Lavergne, which apparently showed that he did not have

obstructive sleep apnea. Afterward, Dr. Lavespere informed Lavergne that

he would not receive a new CPAP based on the results of the sleep study.

According to Lavergne, the 2014 study was flawed.

Between 2015 and 2017, Lavergne sporadically complained about

sleep apnea. Each time, LSP medical staff evaluated him and determined

that either Lavergne denied specific symptoms of sleep apnea or his physical

examinations were unremarkable.

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1

The magistrate judge later struck an amended complaint that Lavergne filed in

November 2021.

2

A jury found that Lavergne’s constitutional rights were violated. See generally

Lavergne v. Cain, No. 13-233 (M.D. La. Sept. 28, 2016). But the defendants in that case did

not raise a qualified immunity defense, and the case never reached us on appeal.

2

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Eventually, a new sleep study was ordered for Lavergne in 2018, and

he received a pre-study checkup with Baudin.

Later that year, Lavergne was placed in solitary confinement, which

caused him to gain weight and allegedly worsened his sleep apnea. Prison

officials knew that weight gain could have this effect, as evidenced by their

responding to grievances about untreated sleep apnea by advising Lavergne

to maintain a healthy weight.

Another sleep study was ordered for Lavergne in 2019, but it did not

occur. Johnson ordered a sleep study in 2020 in response to an

administrative remedy procedure, but this resulted only in another checkup

with Baudin. Dr. Hal MacMurdo, 3 a doctor at LSP, allegedly told Lavergne

that Dr. Lavespere was blocking his sleep studies, but that Dr. MacMurdo

did not know why. Although Park told Lavergne in April 2021 that she would

ensure he underwent a sleep study within two weeks, that assurance proved

hollow. Lavergne allegedly sent several letters to Dr. Lavespere and Johnson

requesting assistance but received no response. Meanwhile, he allegedly

suffered from symptoms such as chronic fatigue, blurry vision, coughing at

night, and decreased focus.

Finally, in January 2022, Baudin gave Lavergne a harness he could use

to perform an “at home” sleep study. Lavergne used the harness as

instructed, and the results indicated that he had obstructive sleep apnea.

Baudin provided a variable positive airway pressure machine as treatment.

Baudin allegedly admitted to Lavergne that the “at home” test had been

available for at least five years. Lavergne then filed suit.

_____________________

3

Lavergne and the magistrate judge spelled his name as “McMurdo.” Because

the defendants, with whom he is more closely associated, spell his name as “MacMurdo,”

that is the spelling we use.

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In the current lawsuit, Dr. Lavespere, Johnson, and Park filed a

motion to dismiss the claims against them; Baudin had not yet been served

with the complaint. The district court granted the motion in part, dismissing

Lavergne’s claims against Johnson and Park as well as his claim for injunctive

relief and his official-capacity claims for money damages. The district court

also held that Lavergne failed to state a claim to the extent he alleged that he

was entitled to a response to his informal complaints about untreated sleep

apnea. It declined to dismiss the claim that Dr. Lavespere acted with

deliberate indifference.

The remaining parties—Dr. Lavespere and Baudin—filed cross

motions for summary judgment. The magistrate judge recommended

denying Lavergne’s motion and granting that of Dr. Lavespere and Baudin,

concluding that they were entitled to qualified immunity. The district court

adopted the magistrate judge’s recommendation, overruled Lavergne’s

objections, and dismissed the case with prejudice. Lavergne timely appealed.

II. Jurisdiction & Standard of Review

The district court had subject matter jurisdiction over this § 1983 case

pursuant to 28 U.S.C. § 1331. Because the district court’s summary

judgment order was a final order, we have jurisdiction over Lavergne’s

appeal. 28 U.S.C. § 1291; see also Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d

875, 879 (5th Cir. 2014) (explaining that when a final judgment is appealed

“all interlocutory orders of the district court leading up to the judgment

merge into the final judgment and become appealable at that time”

(quotation omitted)).

We review de novo the district court’s partial dismissal under Federal

Rule of Civil Procedure 12(b)(6). Ramming v. United States, 281 F.3d 158, 161

(5th Cir. 2001) (per curiam). Orders granting summary judgment are also

reviewed de novo. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754

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(5th Cir. 2011). Because Lavergne is pro se, we construe his filings liberally.

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

III. Discussion

“A prison official violates the Eighth Amendment’s prohibition

against cruel and unusual punishment when his conduct demonstrates

deliberate indifference to a prisoner’s serious medical needs, constituting an

unnecessary and wanton infliction of pain.” Easter v. Powell, 467 F.3d 459,

463 (5th Cir. 2006) (per curiam) (internal quotation marks and citation

omitted). A state actor is deliberately indifferent to a serious medical need

or risk of serious harm if he is “actually aware of the risk, yet consciously

disregard[s] it.” Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002).

A plaintiff must show that “officials refused to treat him, ignored his

complaints, intentionally treated him incorrectly,” or otherwise “clearly

evince[d] a wanton disregard for any serious medical needs.” Domino v. Tex.

Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001) (quotation omitted).

This “is an extremely high standard to meet.” Id. In addition, where a claim

of deliberate indifference is based on a delay in medical care, the plaintiff

must show that the delay “result[ed] in substantial harm.” Easter, 467 F.3d

at 463 (quotation omitted).

A. Partial dismissal under Rule 12(b)(6)

Lavergne first challenges the district court’s dismissal of his deliberate

indifference claim against Park and Johnson. 4

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4

Even construing Lavergne’s appellate brief liberally, he does not seem to

challenge the district court’s dismissal under Rule 12(b)(1) of his § 1983 claim for money

damages against defendants in their official capacities. We therefore need not address that

holding.

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On a Rule 12(b)(6) motion to dismiss for failure to state a claim, we

accept all well-pleaded facts as true, construing all reasonable inferences in

the light most favorable to the plaintiff. White v. U.S. Corrs., L.L.C., 996 F.3d

302, 306–07 (5th Cir. 2021). “But we do not accept as true conclusory

allegations, unwarranted factual inferences, or legal conclusions.” Id. at 307

(quotation omitted). “To survive a Rule 12(b)(6) motion to dismiss, a

complaint does not need detailed factual allegations, but must prove the

plaintiff’s grounds for entitlement to relief—including factual allegations in

a complaint that when assumed to be true raise a right to relief above the

speculative level.” Id. (quotations omitted).

The magistrate judge concluded that, with regards to Park and

Johnson, Lavergne “failed to allege any action or inaction on the part of either

defendant that shows that either defendant 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 his serious medical

needs.” To the contrary, Lavergne alleged that Park called Baudin to

schedule a sleep study, and Johnson ordered a sleep study in response to

Lavergne’s grievance.

Lavergne argues that Park and Johnson “had a chance to force”

Baudin “to give [him] a sleep study in 2018 and 2019 and did not.” He cites

Inmates of Occoquan v. Barry, 717 F. Supp. 854 (D.D.C. 1989) for support.

But that case is different. It involved a prison’s systemic failure “in the areas

of sanitation, bathroom facilities, fire safety, health care, and staffing” that

rose to the level of an Eighth Amendment violation. Id. at 869. Even if we

were bound by Inmates of Occoquan, which we are not, nowhere does it say

that acting in response to an inmate’s medical needs but neglecting to force

those in charge to take further action meets the “extremely high standard”

of deliberate indifference. Domino, 239 F.3d at 756; see Lawson, 286 F.3d at

262–63 (“Deliberate indifference cannot be inferred from a prison official’s

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mere failure to act reasonably, i.e., it cannot be inferred from negligence

alone.”). Accordingly, we agree with the district court’s dismissal of

Lavergne’s deliberate indifference claims against Park and Johnson.

B. Summary judgment

We turn next to the district court’s grant of summary judgment to Dr.

Lavespere and Baudin based on qualified immunity.

On a motion for summary judgment, we view the evidence in the light

most favorable to the nonmoving party, although “conclusional allegations

and unsubstantiated assertions may not be relied on as evidence.” Carnaby

v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is

properly granted when “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). A fact dispute is “material” if the evidence would allow a

reasonable jury to find in favor of the nonmoving party. Cuadra v. Hous.

Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010). If a moving party meets

its initial burden, the burden shifts to the nonmoving party to “identify

specific evidence in the record and articulate the manner in which that

evidence supports that party’s claim.” Duffie v. United States, 600 F.3d 362,

371 (5th Cir. 2010) (quotation omitted).

“A qualified immunity defense alters the typical summary judgment

burden of proof” because the plaintiff has the burden of rebutting it. Luna v.

Davis, 59 F.4th 713, 715 (5th Cir. 2023) (per curiam). “The defense has two

prongs, both of which must be rebutted to overcome qualified immunity:

whether an official’s conduct violated a constitutional right of the plaintiff;

and whether the right was clearly established at the time of the violation.”

Id. (internal quotation marks and citation omitted).

For qualified immunity, “a law is clearly established if it is sufficiently

clear that a reasonable official would understand that what he or she is doing

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violates that right.” Easter, 467 F.3d at 465 (cleaned up) (quoting Anderson

v. Creighton, 483 U.S. 635, 640 (1987)). “This is not to say that an official

action is protected by qualified immunity unless the very action in question

has previously been held unlawful . . . but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640.

The district court granted summary judgment to Baudin and Dr.

Lavespere because, among other things, Lavergne did not adequately rebut

the defendants’ qualified immunity defense as to the substantial harm

requirement. On appeal, Lavergne argues that he demonstrated substantial

harm because he suffered from “headaches, body aches, mental confusion,

and extreme exhaustion” allegedly caused by sleep apnea.

Lavergne has not cited, nor have we independently located, a

published opinion in which we have previously addressed whether some or

all of Lavergne’s symptoms constitute substantial harm. We do, however,

have one unpublished opinion in which we dismissed a plaintiff’s deliberate

indifference appeal because the record evidence failed to “reflect[] that [the

plaintiff] suffered substantial harm as a result of not receiving CPAP

treatment” for his sleep apnea. Washington v. Thomas, 264 F.3d 1140 (5th

Cir. June 18, 2021) (per curiam) (unpublished). The district court and the

defendants also cite a handful of lower court opinions holding that symptoms

from moderate sleep apnea caused by a delay in receiving a CPAP do not

constitute substantial harm in the Eighth Amendment context. 5

Accordingly, as to the substantial harm requirement, we are unable to say that

the remaining defendants’ “conduct was objectively unreasonable in the

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5

See, e.g., Bollig v. Colo. Dep’t of Corrs., No. 1:20-cv-01004-DDD-SKC, 2023 WL

2467336, at *3 (D. Colo. Mar. 2, 2023); Santana v. Watson, No. 13 Civ. 1549(SAS), 2014

WL 1803308, at *5 (S.D.N.Y. May 6, 2014); Nesmith v. S. Health Partners, No. 11-425, 2012

WL 426606, at *4 (W.D. Pa. Jan. 10, 2012).

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light of the clearly established law at the time of the incident.” Domino, 239

F.3d at 755 (quotation omitted); see also Easter, 467 F.3d at 465 (explaining

that “in the light of pre-existing law the unlawfulness must be apparent”

(emphasis added)). 6

The dissenting opinion would hold otherwise. Citing Easter, it argues

that if chest pain was enough for substantial harm in that case, it is clearly

established that Lavergne’s symptoms constituted substantial harm. But the

dissenting opinion’s description of Easter leaves out some important details.

There, the plaintiff was denied treatment despite having a “history of serious

heart problems”—including a previous heart attack—and suffering “severe

chest pain” to the point that “blood vessels in his left eye had burst, causing

it to fill with blood.” Easter, 467 F.3d at 461 (emphasis added). That is a

different situation than the one we have here. 7

The dissenting opinion also states that we should not affirm on this

basis in part because this precise issue wasn’t fully briefed below. But the

briefing below placed the full qualified immunity issue squarely before the

district court. As stated above, it is the plaintiff’s burden to rebut both prongs

of qualified immunity at the summary judgment stage. Luna, 59 F.4th at 715.

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6

Lavergne raises several other issues that we need not discuss because they do not

affect our affirmance on these grounds.

7

The dissent’s reliance on Petzgold v. Rostollan, 946 F.3d 242 (5th Cir. 2019) is also

unconvincing. First, Petzgold’s substantial harm discussion was dicta located in a footnote.

Id. at 249 n.30. Second, the plaintiff in that case had to live with an untreated broken ankle,

which again, is different from the situation here. Id. Finally, contrary to the dissenting

opinion’s contention, we have never said that any additional pain equals substantial harm.

See id. at 249 (“[T]he prisoner must prove that the delay in or denial of medical treatment

resulted in substantial harm, such as additional pain.” (emphasis added)); Alderson v.

Concordia Par. Corr. Facility, 848 F.3d 415, 422 (5th Cir. 2017) (per curiam) (“The pain

suffered during a delay in treatment can constitute a substantial harm.” (emphasis added)).

“Any pain” and “substantial harm” are plainly not synonymous.

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Because Lavergne did not meet that burden, we affirm the district court’s

grant of summary judgment based on qualified immunity rather than delay

that conclusion. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)

(“[W]e repeatedly have stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.”); Pearson v. Callahan,

555 U.S. 223, 237 (2009) (noting that qualified immunity is “an immunity

from suit rather than a mere defense to liability”).

IV. Conclusion

For the reasons discussed, we AFFIRM the district court’s dismissal

of the claims against Park and Johnson and its grant of summary judgment to

Baudin and Dr. Lavespere.

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James L. Dennis, Circuit Judge, concurring in part and dissenting in

part:

The majority opinion’s affirmation of summary judgment for Dr.

Lavespere and Baudin on Lavergne’s delayed medical treatment deliberate

indifference claim fails as a matter of procedure and law. I respectfully dissent

in part. 1

First, the majority opinion erroneously affirms the district court’s

judgment on a ground heretofore never raised in this litigation—and then

continues to err by faulting Lavergne (who is self-represented and

incarcerated) for failing to brief the issue that only the majority has raised.

Specifically, the majority concludes Dr. Lavespere and Baudin are entitled to

qualified immunity on the second prong 2 because “Lavergne has not cited . .

. a published opinion in which we have previously addressed whether some

or all of Lavergne’s symptoms constitute substantial harm.” Ante, at 8. Yet

that is not why the district court found these defendants were entitled to

qualified immunity. “[T]he district court found the first step of the qualified

immunity analysis was not satisfied since Lavergne did not prove the conduct

of Dr. Lavespere and Brady Baudin violated his Eighth Amendment rights.”

The district court said exactly nothing about the second qualified immunity

prong. For good reason: no one argued in the court below that the substantial

harm issue was not clearly established. And no one argues otherwise on

appeal. True enough, we “may affirm a grant of summary judgment on any

_____________________

1

I concur only to the extent the majority opinion affirms the Federal Rule of Civil

Procedure 12(b)(6) dismissal of Parker and Johnson.

2

“Public officials are entitled to qualified immunity unless the plaintiff can plead

specific allegations, demonstrating (1) the violation of a constitutional right that (2) was

clearly established at the time of the alleged misconduct.” Linicomn v. Hill, 902 F.3d 529,

533 (5th Cir. 2018).

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ground[] supported by the record,” but only when that ground was

“presented to the district court.” Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d

808, 812 (5th Cir. 2010) (Haynes, J.); Wantou v. Wal-Mart Stores Tex.,

L.L.C., 23 F.4th 422, 430 (5th Cir. 2022) (Engelhardt, J.). It is therefore

both unfair and incorrect to affirm the entry of summary judgment on a

ground the majority has raised sua sponte for the first time in its opinion.

Second, beyond the glaring procedural infirmity, the majority opinion

is mistaken that the substantial harm issue is not clearly established. “To

establish liability based on a delay in medical treatment, a plaintiff must show

deliberate indifference to serious medical needs that resulted in substantial

harm.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 422 (5th Cir.

2017) (emphasis added) (citing Easter v. Powell, 467 F.3d 459, 464 (5th Cir.

2006)). Since at least 2006, it has been clearly established in the Fifth Circuit

that any additional pain attributable to delayed medical treatment constitutes

“substantial harm.” See, e.g., id. (relying on Easter, a 2006 published opinion,

and noting “Fifth Circuit precedent does not limit substantial harm to

lifelong handicap or permanent loss”); id. (again relying on Easter and

emphasizing that “our precedent allows recovery for pain suffered during a

delay in treatment caused by deliberate indifference” and “[t]he pain

suffered during a delay in treatment can constitute a substantial harm and

form the basis for an award of damages”); Petzold v. Rostollan, 946 F.3d 242,

249 (5th Cir. 2019) (relying on Alderson and stating that “the prisoner must

prove that the delay in or denial of medical treatment resulted in substantial

harm, such as suffering additional pain”); Austin v. City of Pasadena, 74 F.4th

312, 328 (5th Cir. 2023) (“The detainee need not die, or be permanently

injured, before an actionable claim arises for delayed [medical] treatment;

rather, a plaintiff may recover for pain suffered during a delay in treatment

caused by deliberate indifference.”); Thomas v. Mills, 614 F. App’x 777, 777–

78 (5th Cir. 2015) (vacating dismissal of § 1983 deliberate indifference claim

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based on the defendant’s failure to replace an individual’s CPAP machine for

five months; noting the delay caused the detainee to suffer “choking and

gasping for air throughout the night”). Because the “substantial harm” bar

is not particularly high, our court has found the requirement satisfied when

an inmate suffered chest pain, Easter, 467 F.3d at 465, and, in another case,

“pain over the weekend,” Petzold, 946 F.3d at 250 n.30.

Here, Lavergne presented evidence that the delayed medical

treatment caused him, in 2018 and later, to suffer disrupted sleep, extreme

exhaustion, gasping for air, daytime fatigue, blurred vision, headaches, body

aches, increased heart rate and blood pressure, and depression. The majority

opinion counters that it is unable to locate a published opinion specifically

dealing with these symptoms. But the notion that the law can only be clearly

established when there is a published opinion concerning an inmate’s

particular symptoms contradicts precedents dictating that the “focus” of the

qualified immunity analysis is whether the official had “fair notice” that his

conduct was unlawful. Mullenix v. Luna, 577 U.S. 7, 11 (2015); Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (explaining that the “focus” of qualified

immunity analysis is “whether the offic[ial] had fair notice that her conduct

was unlawful”); Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en

banc) (“The sine qua non of the clearly-established inquiry is ‘fair

warning.’”). As we held in Easter, the clearly-established-law requirement

does not mean “that an official action is protected by qualified immunity

unless the very action in question has previously been held unlawful; but it

[does mean] that in the light of pre-existing law the unlawfulness must be

apparent.” 467 F.3d at 465 (quotation omitted) (emphasis added). “The law

can be clearly established ‘despite notable factual distinctions between the

precedents relied on and the cases then before the Court, so long as the prior

decisions gave reasonable warning that the conduct then at issue violated

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constitutional rights.’” Trammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017)

(quoting Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013)).

Applying those precepts here, if “pain over the weekend” (Petzold,

946 F.3d at 250 n.30) and “chest pain” (Easter, 467 F.3d at 465)—and, more

broadly, any “additional pain” attributable to delayed treatment (Petzold,

946 F.3d at 249)—is “substantial harm,” then a reasonable official should

know that disrupted sleep, extreme exhaustion, gasping for air, daytime

fatigue, blurred vision, headaches, body aches, increased heart rate and blood

pressure, and depression constitutes substantial harm too. Easter, 467 F.3d

at 465. 3

Turning to the prong of qualified immunity that the district court did

reach—whether there was a violation of a constitutional right—the lower

court simply concluded that Lavergne’s sleep apnea symptoms did not

constitute “substantial harm” because he didn’t suffer lasting symptoms like

congestive heart failure. Not so. As the above-cited cases illustrate, the

substantial-harm-bar is cleared when delayed medical treatment causes any

additional pain to the inmate. That is exactly what we have here.

* * *

At bottom, of course “Lavergne has not cited . . . a published opinion

in which we have previously addressed whether some or all of Lavergne’s

_____________________

3

The majority opinion relies on Washington v. Thomas, 264 F.3d 1140 (5th Cir.

2001) (unpublished), to support that the substantial harm issue is not clearly established.

Washington provides no succor. That roughly two-paragraph unpublished opinion

concerned a “without merit and therefore frivolous appeal” of an inmate’s claim that

“defendants were deliberately indifferent to his serious medical needs by failing to provide

him with a CPAP . . . machine for his sleep apnea.” Id. at *1. Unlike Lavergne, the plaintiff

in Washington did not even allege that he “suffered substantial harm as a result of not

receiving CPAP treatment,” so the panel found no error in the district court’s Rule

12(b)(6) dismissal. Id.

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symptoms constitute substantial harm.” Ante, at 8. It is not an issue properly

before this court. In any event, the law is clearly established. I would reverse

the district court’s judgment with respect to Dr. Lavespere and Baudin and

remand for further proceedings.

I respectfully but emphatically dissent in part.

15