The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 11, 2003
__________________________ Charles R. Fulbruge III
Clerk
No. 02-41175
__________________________
KEITH ALBERT SHAFER,
Plaintiff-Appellee,
versus
EDUARDO CARMONA, Warden; ET AL,
Defendants,
EDUARDO CARMONA, Warden,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(No. M-99-CV-323)
___________________________________________________
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Eduardo Carmona (“Warden Carmona” or
“warden”), the warden of the Segovia Unit of the Texas Department
of Criminal Justice, Institutional Division, appeals the district
court’s denial of his motion for summary judgment based on
qualified immunity. We reverse.
I. FACTS AND PROCEEDINGS
In this 42 U.S.C. § 1983 case, Plaintiff-Appellee Keith Albert
* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Shafer (“Shafer”) alleges that Warden Carmona was deliberately
indifferent to his serious medical needs. Shafer sustained a
fractured wrist when he was assaulted by another inmate during what
Shafer describes as a racially-motivated altercation. He was
immediately transported to a local hospital, where his wrist was
splinted.1 On a standard “patient post-care instruction” form,
Shafer’s treating physician recommended that he “call and make an
appointment with [his] family physician within one day[].” Shafer
alleges that the emergency room doctor also recommended surgery “at
that time” but that unnamed “prison officials” insisted he return
to the Segovia Unit.
On his return to the Segovia Unit, Shafer was examined by
prison medical personnel, and a prison doctor prescribed pain
medication, apparently without examining Shafer. A physician’s
assistant examined Shafer again the next day, and he was treated by
prison medical staff again two days later. Five days after that,
he complained of pain and was examined by a prison doctor who
recommended immediate transfer for surgery. Shafer was transferred
to the University of Texas Medical Branch and underwent orthopedic
surgery the following day —— a total of nine days after the
original incident.
1
The record does not conclusively establish how Shafer’s arm
was immobilized (i.e., in a cast or splint). Shafer has maintained
that the arm was merely placed in a splint, but his medical records
alternately reference a “splint” and a “cast.” This minor factual
discrepancy has no bearing on the result of this appeal.
2
In the meantime, prison personnel expressed concern that
Shafer was not safe in his current unit, as he would not be able to
defend himself if involved in another physical conflict. A memo
(or email) sent to another prison official over the warden’s name,2
explained that Shafer had been attacked by another prisoner and had
“received preliminary care at our local free world hospital and is
pending a transfer to a TDCJ-ID Medical Facility for follow up
care.” The memo recommended that Shafer “not be returned to his
unit upon completion of his medical treatment.”
Shafer filed suit, pro se, alleging, inter alia, that the
nine-day delay in treatment evidences Warden Carmona’s “deliberate
indifference” to Shafer’s serious medical needs. According to
Shafer, as a result of his injuries he has suffered physical pain
and mental anguish, endured multiple surgeries, and lost the use of
his left wrist. The matter was referred to a magistrate judge who
appointed counsel for Shafer. The warden filed a motion for
summary judgment, arguing, in pertinent part, that he was entitled
to qualified immunity because he had no personal involvement in
Shafer’s treatment and because Shafer had failed to establish an
Eighth Amendment violation.
After briefing, the magistrate judge issued a report
recommending that the motion be granted with respect to all of
2
The memorandum indicates that it was sent by an
administrative assistant, under the “authority” of Warden Carmona.
For purposes of this appeal, we assume the memorandum was authored
by Warden Carmona, as Shafer maintains.
3
Shafer’s claims, with the exception of the deliberate indifference
claim against Warden Carmona. Over the warden’s objection, the
district court adopted the recommendation of the magistrate judge
and denied Warden Carmona’s motion for summary judgment on Shafer’s
deliberate indifference claim. Warden Carmona timely appealed.
II. LAW & ANALYSIS
A. Jurisdiction
A district court’s order denying qualified immunity is
immediately appealable if based on a conclusion of law.3 We have
interlocutory jurisdiction to “take, as given, the facts that the
district court assumed when it denied summary judgment and
determine whether these facts state a claim under clearly
established law.”4
B. Standard of Review
We review a grant of summary judgment de novo, applying the
same standard as the district court.5 A motion for summary
judgment is properly granted only if there is no genuine issue as
to any material fact.6 An issue is material if its resolution
3
Palmer v. Johnson, 193 F.3d 346, 350 (5th Cir. 1999).
4
Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th
Cir. 1996)(internal quotations omitted).
5
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
6
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
4
could affect the outcome of the action.7 In deciding whether a
fact issue has been created, we view the facts and the inferences
to be drawn therefrom in the light most favorable to the nonmoving
party.8 The nonmoving party, however, cannot satisfy his summary
judgment burden with conclusional allegations, unsubstantiated
assertions, or only a scintilla of evidence.9
C. Qualified Immunity
Qualified immunity “shields a state official from personal
liability for damages under 42 U.S.C. § 1983 when the official’s
exercise of discretionary authority results in a violation of an
individual’s federal constitutional or statutory rights, unless at
the time and under the circumstances of the challenged conduct all
reasonable officials would have realized that it was proscribed by
the federal law on which the suit is founded.”10 The bifurcated
test for qualified immunity requires examination of (1) whether the
plaintiff has alleged a violation of a clearly established
constitutional right; and (2) if so, whether the defendant’s conduct
7
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
8
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
9
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc).
10
Palmer, 193 F.3d at 351 (internal quotations omitted); see
also Austin v. Johnson, 328 F.3d 204, 207 (5th Cir.
2003)(explaining that “[q]ualified immunity is an entitlement not
to stand trial or face the other burdens of litigation”)(quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
5
was objectively unreasonable in the light of the clearly established
law at the time of the incident.11
In this case, Shafer alleges that he was denied adequate
medical care in violation of the Eighth Amendment.12 To establish
this threshold Eighth Amendment violation, Shafer must demonstrate
that Warden Carmona was “deliberately indifferent to his serious
medical needs.”13 Deliberate indifference is “an extremely high
standard”14 that encompasses “only unnecessary and wanton infliction
of pain repugnant to the conscience of mankind.”15 Negligent
medical care does not give rise to a § 1983 claim, and a delay in
medical care is actionable only “if there has been deliberate
indifference, which results in substantial harm.”16
The Supreme Court has adopted a subjective standard for
deliberate indifference. “[A] prison official cannot be found
11
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 755
(5th Cir. 2001).
12
See Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.
1999)(explaining that the “cruel and unusual punishments” clause of
the Eighth Amendment “has been interpreted to mandate the provision
of medical care to [prisoners]”).
13
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.
1997)(citing Estelle v. Gamble, 429 U.S. 97, 100 (1976)).
“[D]eliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.” Estelle, 429 U.S. at 104
(internal citation omitted).
14
Domino, 239 F.3d at 756.
15
McCormick, 105 F.3d at 1061.
16
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
6
liable under the Eighth Amendment...unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.”17 In short, deliberate indifference
requires a “showing that the official was subjectively aware of the
risk”18 of serious harm.
This “extremely high,” subjective standard has not been met in
the instant case. The magistrate judge’s recommendation that Warden
Carmona’s motion for summary judgment be denied was based
exclusively on the memo, purportedly sent by the warden, relating
that Shafer had been attacked, had been treated at a local hospital,
and was awaiting transfer to the medical branch. From this memo,
the magistrate judge deduced that the warden was aware that Shafer
had been instructed to make a doctor’s appointment within one day
but nevertheless delayed treatment for nine days.
Whether the warden knew of the emergency room doctor’s generic
directive is immaterial to our qualified immunity determination.
To prevail on his deliberate indifference claim, Shafer must “raise
genuine issues as to facts which, if true, would clearly evince the
17
Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Lawson
v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002)(“The deliberate
indifference standard is a subjective inquiry; the plaintiff must
establish that the jail officials were actually aware of the risk,
yet consciously disregarded it.”).
18
Id. at 829 (emphasis added).
7
medical need in question and indicate that the denial of treatment
was much more likely than not to result in serious medical
consequences, and additionally that the defendant[] had sufficient
knowledge of the situation so that the denial of medical care
constituted wanton disregard”19 of his rights. Even when we assume,
arguendo, that the warden personally authored (or even was aware of)
the memo, it establishes at most that the warden had knowledge of
(1) the original altercation; (2) Shafer’s treatment at a local
hospital; and (3) the fact that Shafer was awaiting transfer for
further treatment. There is no record evidence indicating that the
warden knew that Shafer was in need of immediate surgery or that a
delay in treatment was likely to lead to serious medical
consequences.
Shafer has failed to establish a genuine issue of material fact
regarding his Eighth Amendment claim of deliberate indifference
against Warden Carmona. He has “submitted no evidence that [the
warden has] ever 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.”20 Although Shafer alleges that the emergency room
doctor recommended immediate surgery and that Warden Carmona was
aware of this medical need, he points to no medical records or other
19
Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985)(emphasis added).
20
Johnson, 759 F.2d at 1238.
8
evidence to support his contention; and our independent review of
the record reveals none. As Shafer has not demonstrated a violation
of a clearly established constitutional right, we do not reach the
issue of the objective reasonableness of Warden Carmona’s conduct
and conclude that the warden is entitled to qualified immunity.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s
denial of Warden Carmona’s motion for summary judgment and remand
for entry of judgment consistent with this opinion.
REVERSED and REMANDED.
9