Opinion

Robert Thompson v. T Crnkovich

Court
Court of Appeals for the Fifth Circuit
Filed
Oct 9, 2019
Status
Unpublished
Nature of suit
Prisoner w/ out Counsel
Cited by
0 cases
Authority
More cited than 9.2%

noting “the decision whether to provide additional treatment is a classic example of a matter for medical judgment” that does not establish deliberate indifference (internal quotations and citation omitted)

How later courts described this case

  • noting “the decision whether to provide additional treatment is a classic example of a matter for medical judgment” that does not establish deliberate indifference (internal quotations and citation omitted)

Written by the judges who cited it.

The opinion

Case: 18-11438 Document: 00515151726 Page: 1 Date Filed: 10/09/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-11438 October 9, 2019

Summary Calendar

Lyle W. Cayce

Clerk

ROBERT ALAN THOMPSON,

Plaintiff - Appellant

v.

T CRNKOVICH, HSA, FPC Big Spring,

Defendant - Appellee

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 1:16-CV-55

Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.

PER CURIAM: *

Proceeding pro se and in forma pauperis, Robert Alan Thompson, federal

prisoner # 17709-280, challenges the district court’s granting Crnkovich’s

summary-judgment motion, based on qualified immunity. (Thompson did not

respond to the motion.)

As in district court, Thompson claims Crnkovich, the Health Services

Administrator (HSA) at the facility in which he is confined, violated his Eighth

* 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.

Case: 18-11438 Document: 00515151726 Page: 2 Date Filed: 10/09/2019

No. 18-11438

Amendment rights by being deliberately indifferent to his serious medical

needs: Crnkovich did not approve him for total knee-replacement surgery; and

she did not provide him with a walker.

A federal prisoner may bring an action, pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

for an Eighth-Amendment claim based on cruel-and-unusual punishment. See

Ziglar v. Abbasi, 137 S. Ct. 1843, 1854–55 (2017) (citing Carlson v. Green, 446

U.S. 14, 19 (1980)). Prisoners have a clearly-established Eighth-Amendment

right not to be denied, by deliberate indifference, attention to serious medical

needs. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (citations omitted);

see also Gobert v. Caldwell, 463 F.3d 339, 345 & n.13 (5th Cir. 2006) (citations

omitted). To prevail on such a claim, a prisoner must show that 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 any serious medical needs”. Domino v. Tex. Dep’t of

Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (citation omitted). It “is an

extremely high standard to meet”. Id. The prisoner must show that he was

“exposed to a substantial risk of serious harm” and that prison officials “were

actually aware of the risk, yet consciously disregarded it”. Lawson v. Dallas

Cty., 286 F.3d 257, 262 (5th Cir. 2002) (citations omitted).

Additionally, “[p]ersonal involvement is an essential element of a civil

rights cause of action”. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)

(citation omitted). Defendant “must be either personally involved in the acts

causing the deprivation of a person’s constitutional rights, or there must be a

causal connection between an act of the [defendant] and the constitutional

violation sought to be redressed”. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir.

1983) (citation omitted).

2

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No. 18-11438

A summary judgment is reviewed de novo. Austin v. Kroger Tex., L.P.,

864 F.3d 326, 328 (5th Cir. 2017) (per curiam) (citation omitted). “The 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). In that regard, the court must view all

facts and draw all reasonable inferences in the light most favorable to the non-

moving party. Austin, 864 F.3d at 328–29 (citation omitted). When “the record

taken as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial”. Scott v. Harris, 550 U.S. 372, 380

(2007) (internal quotations and citation omitted). Additionally, although

Thompson did not respond to Crnkovich’s summary-judgment motion in

district court, this does not alone justify summary judgment. See Hibernia

Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279

(5th Cir. 1985) (citation omitted).

Importantly, “qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known”. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks and citation omitted). “The qualified immunity defense has

two prongs: 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.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citation

omitted). “A court may rely on either prong of the defense in its analysis.” Id.

(citation omitted). When, however, defendant has asserted qualified immunity

in a summary-judgment motion, as here, “the burden then shifts to the

plaintiff, who must rebut the defense by establishing a genuine fact issue as to

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No. 18-11438

whether the official’s allegedly wrongful conduct violated clearly established

law”. Id. (citation omitted).

The summary-judgment evidence shows a consulting surgeon

recommended Thompson receive knee-replacement surgery. When such

surgery, considered “medically acceptable – not always necessary” by the

Federal Bureau of Prisons (BOP), is recommended, the relevant institution’s

Utilization Review Committee (URC) must review the recommendation and

decide whether to approve it. The URC, which includes the institution’s HSA

(in this instance, Crnkovich), may seek secondary review of the

recommendation by BOP regional-level medical staff.

The URC, including Crnkovich, referred Thompson’s case for secondary

review. Regional-level medical staff disapproved the surgery and called for

conservative management of Thompson’s condition through weight loss, pain

management, and activity restrictions. Crnkovich, therefore, lacked the

necessary personal involvement in the claimed constitutional deprivation,

because she was not involved in the decision made by the BOP’s regional

medical staff.

Even assuming arguendo Crnkovich had the requisite personal

involvement in the denial, the record reflects nothing more than a

disagreement over Thompson’s treatment plan. Both elective surgery and the

nonsurgical management techniques chosen here are permitted by the BOP’s

Clinical Practice Guidelines for treating Thompson’s condition, and his

disagreement with his treatment plan is insufficient to establish a

constitutional violation. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.

1991) (per curiam).

Regarding Thompson’s not being provided a walker, he was issued a cane

in July 2015. The BOP considers a cane, like a walker, durable medical

4

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No. 18-11438

equipment available for treating Thompson’s condition. The denial of

Thompson’s request for a walker, either in addition to or instead of a cane,

therefore does not rise to the level of a constitutional violation. See Gobert, 463

F.3d at 346 (noting “the decision whether to provide additional treatment is a

classic example of a matter for medical judgment” that does not establish

deliberate indifference (internal quotations and citation omitted)).

Moreover, Crnkovich lacked authority to issue a walker absent an order

for one, which had not been given, and absent directly evaluating Thompson

herself or consulting with a lower-level practitioner presently evaluating

Thompson. As an HSA, Crnkovich is an administrator, and she does not

routinely perform any clinical services. Without the requisite authority,

Crnkovich cannot be found to have been deliberately indifferent toward

Thompson’s alleged needs. See Marquez v. Woody, 440 F. App’x 318, 323 (5th

Cir. 2011) (per curiam) (holding a prison official was not deliberately

indifferent for not issuing dentures where the official “did not have the

authority to physically give [the prisoner] dentures or to change the policy on

dentures”).

Finally, Thompson also contends on appeal he was overmedicated,

without regard to prior medical diagnoses. Although Thompson mentions

being overmedicated in passing within his district-court briefing, he did not

raise any concern over his prior diagnoses there, and he cannot on appeal

attack the grant of summary judgment “by raising distinct issues that were

not before the district court”. John v. State of La. (Bd. of Trs. for State Colls.

and Univs.), 757 F.2d 698, 710 (5th Cir. 1985). Moreover, to the extent

Thompson has claimed, both here and in district court, he was generally

overmedicated, he does not allege Crnkovich was involved.

AFFIRMED.

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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