The opinion
Case: 22-30327 Document: 79-1 Page: 1 Date Filed: 06/24/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-30327 June 24, 2025
____________
Lyle W. Cayce
Clerk
Larce Spikes,
Plaintiff—Appellee,
versus
Lesley Wheat, Nurse; Paula Stringer, Nurse; Robin
Bowman, Nurse; Conrad McVea, III, also known as Chip
McVea; Janet McVea Williams; Jacob O. McVea,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CV-8164
______________________________
Before Jones, Richman, and Ho, Circuit Judges.
Per Curiam:
Inmate Larce Spikes injured his right hip at the Rayburn Correctional
Center (RCC) in Louisiana. Medical staff treated him for a muscle strain
over the following six weeks, but he was eventually diagnosed with a
fractured hip. Spikes asserted Eighth Amendment claims under § 1983
against the medical staff. Because they have qualified immunity, we
REVERSE the district court’s denial of summary judgment.
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BACKGROUND
At the relevant time, RCC inmates could request medical care
through regular sick calls during limited hours. For cases they believed could
not wait, inmates could initiate emergency visits to the infirmary. Because
Dr. Casey McVea was the only physician, nurses initially examined inmates,
made assessments, and treated patients pursuant to his standing orders.
Dr. McVea reviewed their notes, which he used to schedule appointments
based on each matter’s urgency. For “emergent” conditions like heart attack
or stroke, Dr. McVea testified that he would see patients immediately; for
“urgent” cases, within two weeks; for routine cases, within six weeks. In the
meantime, he could alter treatment plans as each situation developed.
On June 30, 2016, Spikes made an emergency visit to the infirmary in
a wheelchair after experiencing hip and groin pain from lifting weights.
Spikes alleges he told Nurse Paula Stringer that he could not walk. She did
not include this information in her notes and instead documented his vital
signs and her assessment that he had a muscle strain. Per standing orders,
Stringer gave him ibuprofen and analgesic balm. After review, Dr. McVea
signed off on the treatment plan. Stringer saw Spikes during another
emergency visit on July 5. She recorded his vitals, documented his
wheelchair use, and noted his claims of expanding pain. Spikes claims he
dragged himself to the scale; Stringer noted that he reached the scale without
assistance. Spikes says he had limited range of motion in his leg; she noted
that he had full motion. Stringer maintained the same course of treatment
and referred his chart to Dr. McVea. The next day, the doctor reviewed the
notes and increased the ibuprofen dose to 400 milligrams three times a day.
On July 6, Spikes made another emergency visit. A non-defendant
nurse noted his vitals, use of a wheelchair, inability to walk, and claims of pain
radiating from his hip to his knee. She discussed the matter with Dr. McVea,
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who continued the treatment plan, ordered bottom-bunk assignment,
supplied crutches, and scheduled a routine appointment.
On July 14, Nurse Robin Bowman saw Spikes for a routine visit. She
recorded his vitals, wheelchair use, possible hip swelling, heightened pain
from the exam, and complaints of radiating pain and inability to walk. She
continued the treatment plan and ordered a routine appointment with
Dr. McVea. Spikes was given wheelchair access, placed on no-duty status
for five days, and again assigned to a bottom bunk. Dr. McVea reviewed these
notes on July 18. Bowman saw Spikes again during a July 19 routine visit. She
took similar notes and extended the treatment, wheelchair access, bottom
bunk assignment, and no-duty status. Dr. McVea reviewed the notes on July
20 and marked that an appointment was scheduled.
On July 20, Spikes made another emergency visit and was seen by
Nurse Lesley Wheat. She noted his repeat visits, gave him crutches, and
recommended he refrain from sports and weightlifting. After review, Dr.
McVea returned Spikes to regular duty assignment with permission to use
crutches. Wheat reported Spikes for making an emergency visit for a
previously treated injury. He was found guilty of malingering and deprived
of yard time for four weeks.
On August 11, Spikes had his appointment with Dr. McVea.
Dr. McVea performed a physical exam and found no swelling. Dr. McVea
continued Spikes’s bottom bunk assignment, changed his duty status to
require no heavy lifting, ordered lab work to evaluate muscle damage, and
ordered an X-ray. The X-ray revealed a hip fracture, and Spikes was admitted
to a hospital that day. Surgery took place on August 15, 2016. Spikes alleges
that the bones in his hip began healing incorrectly because of the delay,
requiring the surgeon to refracture his hip.
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Spikes brought § 1983 claims against Dr. McVea and Nurses Stringer,
Bowman, and Wheat. Inter alia, he alleged that each defendant violated the
Eighth Amendment by being deliberately indifferent to his medical needs
before and after surgery. The defendants asserted qualified immunity and
moved to dismiss, but the district court denied their motion. After discovery,
the defendants again asserted qualified immunity and moved for summary
judgment. The district court denied their motion as to the above-described,
preoperative events, but granted it as to postoperative events. The
defendants filed an interlocutory appeal. Initially, we affirmed. Spikes v.
McVea (Spikes I), 8 F.4th 428, 436, 440 (5th Cir. 2021). After that decision,
Dr. McVea died. We treated a petition for rehearing en banc as one for panel
rehearing and explained that “the recent death of the doctor makes it all the
more important that the inquiry of qualified immunity not rest on the
collective action of the medical staff, but on the role of each participant.”
Spikes v. McVea (Spikes II), 12 F.4th 833 (5th Cir. 2021) (per curiam), reh’g
denied, 2021 WL 4978586 (5th Cir. Oct. 13, 2021). We vacated the district
court’s judgment and remanded for individualized analyses. On remand, the
district court held that genuine issues of material fact precluded summary
judgment to each defendant. Nurses Stringer, Bowman, and Wheat, and
Dr. McVea’s heirs timely appealed.
STANDARD OF REVIEW
We may review a denial of summary judgment based on qualified
immunity “to the extent it turns on an issue of law.” Mitchell v. Forsyth, 472
U.S. 511, 528–30, 105 S. Ct. 2806, 2816–2818 (1985). Where that denial was
because of genuine issues of material fact, “we do not have jurisdiction to
review the genuineness of any factual disputes but can decide whether the
factual disputes were material.” Kovacic v. Villarreal, 628 F.3d 209, 211 n.1
(5th Cir. 2010). We “consider only whether the district court correctly
assessed ‘the legal significance’ of the facts it ‘deemed sufficiently supported
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for purposes of summary judgment.’” Joseph ex rel. Est. of Joseph v. Bartlett,
981 F.3d 319, 331 (5th Cir. 2020) (quoting Cole v. Carson, 935 F.3d 444, 452
(5th Cir. 2019) (en banc)). In so doing, “we must view the facts and draw
reasonable inferences in the light most favorable to the plaintiff and ask
whether the defendant would be entitled to qualified immunity on those
facts.” Cole, 935 F.3d at 452. As to that question, our review is de novo. Id.
DISCUSSION
“Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts 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.” Ashcroft v. al-Kidd, 563 U.S. 731, 735,
131 S. Ct. 2074, 2080 (2011) (quotation marks and citation omitted). Courts
may address this two-step inquiry in any order, and defendants are entitled
to qualified immunity if the plaintiff fails at either step. Pearson v. Callahan,
555 U.S. 223, 242, 129 S. Ct. 808, 821 (2009). 1
I.
The Eighth Amendment requires the government “to provide
medical care for those whom it is punishing by incarceration.” Estelle v.
Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976). “A prison official’s
_____________________
1
Spikes argues that Spikes I’s holding that he showed violations of his clearly
established rights is the law of the case because Spikes II never explicitly stated that Spikes
I was vacated. But Spikes II necessarily abrogated Spikes I when it vacated the district
court’s denial of qualified immunity at summary judgment—which Spikes I affirmed—and
remanded for an individualized qualified immunity analysis. Finally, as only Spikes II was
included in the judgment, Spikes II alone formed the mandate of the first appeal of this case.
Fed. R. App. P. 41(a). An opinion cannot be law of the case absent an appellate court
mandate. See, e.g., Key Enters. of Del., Inc. v. Venice Hosp., 9 F.3d 893, 898 (11th Cir. 1993)
(en banc) (“[B]ecause the panel’s mandate had not issued, the panel’s decision was never
the ‘law of the case.’”); Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles, 725 F.3d 1194,
1203 (9th Cir. 2013) (same); United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991)
(same).
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deliberate indifference to a substantial risk of serious harm to an inmate
violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828, 114
S. Ct. 1970, 1974 (1994). Deliberate indifference is akin to “subjective
recklessness.” Id. at 839, 114 S. Ct. at 1980. It is a “stringent” and
“extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Just., 239
F.3d 752, 756 (5th Cir. 2001). A plaintiff “must show that the defendant:
(1) was aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists; (2) subjectively drew the inference
that the risk existed; and (3) disregarded the risk.” Cleveland v. Bell, 938 F.3d
672, 676 (5th Cir. 2019) (quotation marks, citation, and alterations omitted).
“Mere negligence, neglect or medical malpractice is insufficient,”
Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979), as is “an incorrect
diagnosis.” Domino, 239 F.3d at 756. If “medical treatment was provided,
even if it was negligent, disagreed-with, and based on a perfunctory and
inadequate evaluation,” there is no violation. Petzold v. Rostollan, 946 F.3d
242, 250 (5th Cir. 2019). We instead require a plaintiff to show that
personnel “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.” Johnson v. Treen, 759
F.2d 1236, 1238 (5th Cir. 1985). Spikes failed to show that here.
Highly instructive here is Estelle v. Gamble, where an inmate sought
treatment 17 times in three months with complaints of back pain after a bale
of cotton fell on him. 429 U.S. at 99, 107, 97 S. Ct. at 288, 292. Doctors
diagnosed him with a back strain and ordered “bed rest, muscle relaxants and
pain relievers,” adjusted medications over time, permitted him to remain in
his cell except for meals and showers, and assigned him to a lower bunk. Id.
at 99, 107, 97 S. Ct. at 288, 292. Gamble was reassigned to light work despite
his unmitigated pain. Id. at 100, 97 S. Ct. at 289. When he refused, doctors
performed more tests and continued trying various pain medications. Id.
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When Gamble still refused, he was disciplined with solitary confinement. Id.
at 101, 97 S. Ct. at 289. Gamble claimed an Eighth Amendment violation
because, inter alia, an X-ray should have been ordered. Id. at 107, 97 S. Ct. at
292–93. The Court rejected this theory because that was a “medical
decision” that did “not represent cruel and unusual punishment.” Id.
A.
With respect to Nurse Stringer, who saw Spikes on his first and
second visits on June 30 and July 5, the district court found genuine fact
disputes as to (1) whether Stringer checked for a hernia, (2) whether she
could have expedited Spikes’s appointment with Dr. McVea, (3) whether
Spikes had full motion in his right leg, and (4) whether he could walk. None
of these are material because, construing them in Spikes’s favor, he cannot
show deliberate indifference. At bottom, Stringer misdiagnosed his fracture
as a muscle strain. This “incorrect diagnosis” is insufficient to show
deliberate indifference, see Domino, 239 F.3d at 756, since some “medical
treatment was provided, even if it was negligent” or “based on a perfunctory
and inadequate evaluation.” Petzold, 946 F.3d at 250 (5th Cir. 2019). Failing
to check for a hernia was not reckless. Failing to expedite the appointment
was not deliberately indifferent because she treated Spikes pursuant to
standing orders and her second report resulted in an increased ibuprofen
dose.
Assuming he could not ambulate, there was no trauma that made a
fracture the obvious diagnosis, nor did his symptoms alone make it obvious.
After all, both visits to Stringer occurred within a week of Spikes’s injury,
and Dr. McVea testified that it can be expected that pain can persist for two
weeks after a muscle strain. See Williams v. City of Yazoo, 41 F.4th 416, 425
(5th Cir. 2022) (discussing “symptoms-only scenarios”). This is a far cry
from cases where medical personnel knowingly failed to treat an inmate’s
chronic illness, see Ford v. Anderson Cnty., 102 F.4th 292, 302, 308 (5th Cir.
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2024), or where personnel ignored an inmate’s immediate complaints of pain
after a surgery, see Harris v. Hegmann, 198 F.3d 153, 159–160 (5th Cir. 1999),
or where the appropriate response to a known serious risk of harm were
obvious, see Austin v. Johnson, 328 F.3d 204, 210 (5th Cir. 2003) (ambulance
called “almost two hours” after a minor vomited, collapsed, and fell
unconscious while performing strenuous exercise).
Spikes finally argues that Stringer was deliberately indifferent by
documenting that he could ambulate when he allegedly could not, which
delayed proper treatment. On this point, he fails to establish causation.
When Spikes visited the infirmary on July 6—one day after his second
examination by Nurse Stringer—his inability to ambulate was accurately
reported to Dr. McVea. But because that did not alter the diagnosis or
expedite his appointment, he cannot show that Nurse Stringer’s alleged
misreporting “resulted in substantial harm.” See Petzold, 946 F.3d at 249.
B.
Much of the same analysis applies to Nurse Bowman’s examinations
on July 14 and July 19. Spikes does not allege any misrepresentation of his
symptoms. Instead, the only genuine fact dispute is whether Bowman could
have expedited Spikes’s appointment with Dr. McVea. But even if she could,
she was not deliberately indifferent. Although Bowman was aware that
Spikes was using a wheelchair for over two weeks post-injury, her actions
were only a continued misdiagnosis of his fracture as a muscle strain. Nurse
Bowman took notes about the visits, maintained his ibuprofen and balm
treatment, and ensured bottom-bunk assignment, wheelchair access, no work
duties, and a scheduled appointment. This is not deliberate indifference
because, absent intervening “dramatic[] increase[s] in severity,” “an official
defers to prior treatment—and doesn’t delay it—when he knows an injured
prisoner has recently received medical care and denies the prisoner’s
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additional treatment request for the same injury.” See Petzold, 946 F.3d at
251 & n.42 (citing Gobert v. Caldwell, 463 F.3d 339, 350–51 (5th Cir. 2006)).
C.
The same analysis largely applies to Nurse Wheat. The only fact issue
is whether she could expedite Spikes’s appointment. Again, that is
immaterial because the root issue was a misdiagnosis. Wheat continued the
same treatment plan that Bowman followed and provided crutches and
advised him to refrain from sports and weightlifting. No dramatically
changed circumstances made it reckless for Wheat to defer to earlier
treatment. Like in Gamble, mere passage of time is insufficient to make a
changed diagnosis obviously necessary. 429 U.S. at 99, 97 S. Ct. at 288.
Also, like in Gamble, Nurse Wheat’s referring Spikes for discipline was not
an Eighth Amendment violation. Id. at 101, 97 S. Ct. at 289. That remains
the case even if the discipline frustrated his attempts to expedite his
treatment, as he continued to have access to his medications. See Thompson
v. Tex. Dep’t of Crim. Just., 67 F.4th 275, 278 (5th Cir. 2023); McGlinchey v.
United States, 996 F.2d 306 (5th Cir. 1993).
D.
Finally, with respect to Dr. McVea, the district court found genuine
disputes as to (1) whether the doctor knew Spikes’s level of pain, inability to
walk, and lack of full motion in his right leg, and (2) whether Dr. McVea could
have expedited Spikes’s appointment. These disputes are immaterial
because “[t]here is a vast difference between an earnest, albeit unsuccessful
attempt to care for a prisoner and a cold hearted, casual unwillingness to
investigate what can be done for a man who is obviously in desperate need of
help.” Fielder, 590 F.2d at 108. Even assuming that Dr. McVea knew of
Spikes’s inability to ambulate and could have expedited the appointment, he
was not deliberately indifferent because he continued to treat Spikes from the
time of the injury until the eventual appointment. As Spikes made successive
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trips to the infirmary, Dr. McVea increased the dose of ibuprofen, limited his
work duties, assigned him to a bottom bunk, provided him with crutches and
a wheelchair, and ensured he had an appointment. While he eventually re-
assigned Spikes to limited work duties, that does not change that he
attempted to treat what he believed was a muscle sprain.
Spikes counters that Dr. McVea must have subjectively known that
the injury was not a muscle sprain. The only fact supporting that inference
is his knowledge that Spikes’s pain was severe and persistent such that he
could not walk. But that is an issue of misdiagnosis, and Dr. McVea had
numerous reasons not to suspect fracture: He considered Spikes’s normal
vital signs as suggestive of less-than-severe pain and his lack of trauma as
indicative of a less serious injury. Even if there was “a significant risk that
[Dr. McVea] should have perceived but did not,” that “cannot under our
cases be condemned.” Farmer, 511 U.S. at 838, 114 S. Ct. at 1979; see also
Stewart v. Murphy, 174 F.3d 530, 534–36 (5th Cir. 1999). Dr. McVea never
“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.” Johnson, 759 F.2d at 1238.
Like in Gamble, the failure to order an X-ray earlier was but a matter of
mistaken medical judgment that cannot support a finding of deliberate
indifference. 429 U.S. at 107, 97 S. Ct. at 292–93.
Because none of the defendants was deliberately indifferent, we
REVERSE.
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