finding that officers were not deliberately indifferent because they “were not empowered to take action contrary to doctor’s orders,” and thus “their inability to alleviate” inmate’s pain was not “a grievance of constitutional magnitude”
How later courts described this case
- finding that officers were not deliberately indifferent because they “were not empowered to take action contrary to doctor’s orders,” and thus “their inability to alleviate” inmate’s pain was not “a grievance of constitutional magnitude”
- holding that nurses did not deny plaintiff treatment or ignore his complaints of pain because “they had no authority to prescribe drugs or embark on a different course of treatment”
- holding that a defendant who had “no authority to prescribe drugs or embark on a different course of treatment” was not deliberately indifferent
- holding that defendant who had “no authority to prescribe drugs or embark on a different course of treatment” was not deliberately indifferent
Written by the judges who cited it.
The opinion
Case: 08-20817 Document: 00511020913 Page: 1 Date Filed: 02/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 4, 2010
No. 08-20817 Charles R. Fulbruge III
Clerk
WILLIAM JAMES THAYER,
Plaintiff - Appellant
v.
MARY ADAMS, Nurse Manager; KRISTI FLISOWSKI, LVN; MARGIE
GONZALES, LVN; KATHLEEN A ROGERS,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-920
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff William James Thayer appeals the district court’s entry of
summary judgment in favor of Defendants Mary Adams, Kristi Flisowski and
Margie Gonzales on Thayer’s deliberate indifference claim arising under 42
U.S.C. § 1983. Thayer is an inmate in the custody of the Texas Department of
Criminal Justice (TDCJ). He alleges that defendants inflicted wanton and
unjustifiable pain and suffering upon him by failing to respond to his serious
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-20817 Document: 00511020913 Page: 2 Date Filed: 02/04/2010
No. 08-20817
medical needs in violation of the Eighth Amendment to the U.S. Constitution.
For the reasons stated herein, we affirm the district court’s decision.
I. FACTS AND PROCEDURE
Thayer’s Allegations
Thayer was scheduled to have knee replacement surgery on March 28,
2005, while in custody of TDCJ. The procedure was halted and Thayer was
discharged from the University of Texas Medical Branch (UTMB) because he
had an anaphylactic response to a medication. Thayer received 23 staples in his
knee and was remanded to the Ellis Unit of TDCJ. Upon arriving at Ellis Unit
on the evening of March 28, Thayer was assigned to a cell up a flight of stairs
and was given no blankets or sheets. He required the assistance of other
inmates to reach his cell because he could not climb stairs alone. He could not
sleep because he was cold and in pain. The next day, March 29, Thayer went to
the infirmary for “emergency treatment,” but stated that he was denied
treatment by defendants Flisowski and Gonzales, who were nurses employed by
TDCJ. Thayer was able to receive pain medication from the pill window.
Thayer alleged, however, that he received inadequate treatment or no treatment
at all between March 29, 2005, and April 2, 2005. He says his pain medication
was discontinued at the direction of defendant Adams. He sued, alleging that
Flisowski, Gonzales, and Adams acted with deliberate indifference to his pain
and legitimate medical needs. Thayer sought declaratory and injunctive relief,
as well as punitive damages. He moved for appointment of counsel, which the
district court denied.
The Attorney General advised the court that defendants Flisowski and
Gonzales were no longer employed by UTMB. Adams answered, denied
wrongdoing, and asserted her entitlement to official immunity, immunity under
the Eleventh Amendment, and qualified immunity. Adams moved for summary
judgment, stating that she was not the nurse manager of the Ellis Unit while
2
Case: 08-20817 Document: 00511020913 Page: 3 Date Filed: 02/04/2010
No. 08-20817
Thayer was housed there. Rather, she was manager of the Estelle Unit, and had
no responsibility over the Ellis Unit until she was transferred there on August
1, 2005. She also stated that she never received Thayer’s emergency grievances.
Adams submitted personnel records and a sworn affidavit in support of these
assertions.
Declarations by Thayer and Other Inmates
In response to Adams’s motion, Thayer filed a declaration reiterating the
assertions from his complaint. Thayer stated that, on the morning of March 29,
2005, he presented himself, with the help of fellow inmates, to the infirmary,
where Flisowski and Gonzales were working. After Thayer explained to them
his condition, including his return from the hospital, his cell assignment, and
“being in severe pain,” both said that they were too busy to help, even though
“all they were doing was sitting at the desk talking.” Thayer then filed
emergency grievances. The next day, March 30, 2005, Thayer went to the pill
window, “and was told [his] medication had been discontinued.” He went to the
infirmary, where Flisowski told him Adams had ordered his medication
discontinued. Thayer explained his situation once more to Flisowski and asked
her to look into his file. She did so, but said she could do nothing for him at that
time. Thayer next states: “I was helped back to my cell which I stayed in
because I couldn’t get around and the pain I was in was so severe. Inmates gave
me food because I couldn’t make it to the chow hall.” Finally, Thayer was
examined on April 2, 2005, by a nurse Connell, who is not a defendant. Connell
called a doctor, who reinstated Thayer’s pain medication. Thayer’s dressing was
changed for the first time on April 2, 2005. He had swelling and bruises on his
leg, but no infection.
Thayer also submitted the declaration of Marc Ashbrook, a fellow TDCJ
inmate, who repeated many of Thayer’s assertions. Ashbrook said that on
March 29, Flisowski and Gonzales were too busy to help Thayer, even though
3
Case: 08-20817 Document: 00511020913 Page: 4 Date Filed: 02/04/2010
No. 08-20817
both were just “sitting at the desk at the infirmary.” On March 30, Ashbrook
overheard Flisowski tell Thayer that Adams had discontinued Thayer’s pain
medication. Ashbrook stated: “Plaintiff was in so much pain he couldn’t
understand why they, the nurses and medical staff, were doing this to him when
it was so obvious that he needed medical attention.” Thayer also submitted
medical records to the district court, which confirmed that he was scheduled for
a knee replacement at UTMB. The operation was halted because Thayer had a
“possible anaphylactic reaction” and became “severely hypotensive” after he was
placed under general anesthesia and an incision was made on his leg. The
records also show that Thayer was prescribed Tylenol with Codeine when he was
discharged from UTMB. Notes from his April 2, 2005, examination reflect his
assertion that “pain medication was discontinued and motrin ordered.” The
records also show that Thayer’s surgery was rescheduled for the following week,
and reflect his assertion that he “ha[d] been told not to take anything with
motrin and aspirin prior to surgery.” His “[i]ncision line [was] clean and dry,”
but he had swelling and bruises from the knee to the ankle.
The district court considered Adams’s motion and Thayer’s response, and
held that summary judgment was inappropriate. The court concluded that “a
fact issue remains about whether Nurse Adams had any personal involvement
in the discontinuation of Thayer’s pain medication or in the supervision of others
who were charged with providing him with medical care.” The court also noted
that Flisowski and Gonzales had not been served and that neither had filed an
answer. Because they no longer worked for TDCJ, these defendants could not
be represented by the Attorney General without their express consent. The
court stated it would order service on Flisowski and Gonzales separately.
Finally, the court allowed Thayer to correspond with three inmates who had
witnessed Thayer’s treatment for the purpose of obtaining a declaration or
affidavit.
4
Case: 08-20817 Document: 00511020913 Page: 5 Date Filed: 02/04/2010
No. 08-20817
Thayer then filed a request for production of documents. He asked to be
provided with copies of grievances, complaints, and related documents filed
against the defendants, their work histories, policies, a health care manual,
“[a]ny and all orders Medical Supervisor Mary Adams made during her
employment with UTMB & TDCJ,” the grievance manual, and several other
similar documents. Adams opposed the motion. The district court denied the
motion because Thayer had not requested leave to conduct additional discovery,
because he had not shown how his requests related to his claims, and because
Adams had asserted the defense of qualified immunity.
Flisowski answered. She denied refusing to treat Thayer, or that she had
any role in discontinuing his pain medication. She raised, inter alia, the
defenses of sovereign immunity under the Eleventh Amendment and qualified
immunity.
Thayer then filed declarations by Michael Hooks and William E. Hancock,
Jr. Hooks said he helped Thayer to the pill window, where “the pill window
nurse” told him that his medication had been discontinued. Hooks then repeated
many of the same assertions that Thayer and Ashbrook made, including that
Flisowski and Gonzales did not treat Thayer on March 29, despite not being busy
at the time; that Flisowski stated on March 30 that Adams had ordered Thayer’s
pain medication discontinued; and that Thayer was in obvious pain. Hancock’s
declaration provided general assertions that Flisowski and Gonzales did not
provide adequate medical treatment to inmates. Hancock stated that he once
spoke with Thayer while Thayer was in the infirmary; Thayer told Hancock that
“his knee was always hurting him badly and she would give him Ibuprofin for
the pain, but refused to give him anything stronger.” Hancock did not state
when this conversation took place.
The district court then ordered the office of the Attorney General of Texas,
counsel for defendants Adams and Flisowski, to file a report under Martinez v.
5
Case: 08-20817 Document: 00511020913 Page: 6 Date Filed: 02/04/2010
No. 08-20817
Aaron, 570 F.2d 317 (10th Cir. 1978), or in the alternative, to file a motion for
summary judgment within 60 days.
Defendants’ Summary Judgment Motion and Thayer’s Response
Adams and Flisowski then moved for summary judgment.1 They
submitted Thayer’s medical records and an affidavit from Nurse Mary Gotcher
in support of the motion. Defendants asserted that Thayer was prescribed
Tylenol #3 with Codeine when he was discharged from UTMB, and that this
drug must be picked up from the pill window. When Thayer arrived at the Ellis
Unit on March 28, 2005, UTMB physician Dr. Glenda Adams changed his
medication from Tylenol #3 to Motrin. Inmates are allowed to keep Motrin with
them and are not required to go to the pill window to get this drug. Medical
personnel examined Thayer on April 2, 2005, and noted that his incision was
“clean and dry.” Thayer complained about the change in medication. A member
of the nursing staff contacted a doctor, who ordered that the prescription for
Tylenol #3 be reinstated. Thayer underwent surgery on April 15, 2005, and was
discharged with prescriptions for Tylenol #3 and a blood thinner. He received
these medications. The defendants argued that they were entitled to qualified
immunity because they were not personally involved with changing Thayer’s
prescription, his assignment to a certain cell, or his not receiving blankets and
sheets. They alternatively argued that these actions did not amount to
deliberate indifference. They contended that Thayer’s suit was barred by
Eleventh Amendment immunity to the extent he sought to recover against them
in their official capacities.
1
Gonzales did not join in this motion. The Attorney General’s office stated that “this
office has not been in contact with Margie Gonzales, despite our efforts to do so. She has not
requested representation, and to our knowledge, has not been served with process.” The
Attorney General reiterated these assertions in its letter brief on behalf of Appellees Adams
and Flisowski.
6
Case: 08-20817 Document: 00511020913 Page: 7 Date Filed: 02/04/2010
No. 08-20817
The documents submitted by the defendants supported their factual
assertions. Medical records show that Thayer was admitted to UTMB on March
21, 2005, and was discharged on March 28, 2005, with a prescription for Tylenol
with Codeine (Tylenol #3). Dr. Adams prescribed Motrin for him when he
arrived at the Ellis Unit and discontinued the Tylenol #3. Thayer had surgery
in April 2005 and was discharged with prescriptions for Tylenol #3 and
injections of Lovenox, an anticoagulant.
Gotcher was the Nursing Director at UTMB, Correctional Managed Care,
and she supervised nursing personnel at 43 TDCJ facilities. She reviewed
Thayer’s records before giving her affidavit, and she was familiar with UTMB
policies and procedures concerning nursing care. Gotcher confirmed that
“Adams did not work at the Ellis Unit during the time frame of this lawsuit and
would have had no personal involvement in the medical care of an inmate at the
Ellis Unit.” Rather, Adams was the Cluster Nurse Manager of the Estelle Unit
at this time. Because Flisowski and Gonzales were LVNs, their “scope of
practice” did not include ordering “any treatment or medication for any patient.”
Gotcher noted that Dr. Adams changed Thayer’s prescription from Tylenol #3
four times a day to Motrin as needed, and Dr. Adams’s order specified that
Thayer was to be permitted to keep Motrin on his person. This change allowed
Thayer to keep his medication with him, rather than having to ambulate to the
pill window. “The Dr. Adams referred to in Thayer’s medical record is Dr.
Glenda Adams, not Cluster Nurse Manager Mary Adams.” Thus, “[i]f someone
informed Mr. Thayer that his medications had been changed by ‘Adams,’ that
reference would be to Dr. Glenda Adams, who did change his Tylenol #3
prescription to Motrin.” Due to the change in medications ordered by Dr.
Adams, Flisowski and Gonzales could not have given Thayer Tylenol #3.
Thayer responded to the motion for summary judgment and offered his
own declaration and medical records in support of the response as well as
7
Case: 08-20817 Document: 00511020913 Page: 8 Date Filed: 02/04/2010
No. 08-20817
declarations from Ashbrook, Hooks, Hancock, and inmate Daniel Straw. Thayer
insisted that the defendants “refused [him] all and any kind of medical
treatment” and thus acted with deliberate indifference.
The District Court’s Ruling
The district court granted defendants’ motion for summary judgment and
dismissed Thayer’s suit. The district court first determined that the defendants
were entitled to Eleventh Amendment immunity insofar as Thayer sought
damages against them in their official capacities. The court next concluded that
the defendants were entitled to qualified immunity. The district court noted
that Thayer’s “chief complaint” was that Nurse Adams denied him pain
medication by changing his prescription from Tylenol #3 to Motrin, and that
Thayer also complained that Nurses Flisowski and Gonzales “denied him care
for pain after his prescription was changed” and did not give him fresh
bandages. The court concluded that “the record shows that none of the
defendants named in the complaint were involved in the decision to change
Thayer’s medication.” Rather, the decision was made by Dr. Glenda Adams.
The district court noted that Thayer had submitted a copy of a grievance that he
filed on March 31, 2005. In this grievance, he averred that someone in the
infirmary told him that “Dr. Adams at U.T.M.B. discontinued medication.” The
court held that Thayer’s claim concerning the defendants’ alleged interference
with his “prescribed medication regime” failed because the evidence showed that
the defendants were not personally involved with that decision.
The district court recounted that Thayer’s records showed that, upon
discharge from UTMB on March 28, 2005, he was to use crutches, follow up with
UTMB in two weeks, maintain a regular diet, and get Tylenol #3. No orders
were given for any particular follow up care at Ellis Unit; no restrictions were
placed upon Thayer’s cell assignment; no order was made for a dressing or
bandage change; and no order was given for an anticoagulant. Dr. Adams then
8
Case: 08-20817 Document: 00511020913 Page: 9 Date Filed: 02/04/2010
No. 08-20817
changed the pain medication to Motrin. The court concluded that the defendants
did not have the power to override Dr. Adams’s orders and that they did not act
with deliberate indifference to Thayer’s serious medical needs with respect to his
medication.
Insofar as Thayer complained that his wound was not examined and his
bandages were not changed, the district court concluded that he had not shown
that the defendants were deliberately indifferent. Thayer’s wound was clean
and dry on April 2, 2005, and his surgery was successfully performed that same
month. Thayer did not show that he suffered any harm due to the defendants’
failure to change his bandages or examine his wound. The court also concluded
that the evidence did not show that defendants’ actions were objectively
unreasonable. Rather, “the medical records reflect that Thayer was treated
according to the discharge instructions issued by UTMB on March 28, 2005.”
The district court further noted that, although Gonzales was not served
and had not answered, the same analysis that applied to Thayer’s claims against
the other defendants likewise applied to Thayer’s claims against her. See Lewis
v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) (allowing non-answering defendants
to benefit from grant of appearing defendants’ summary judgment motion). The
district court thus dismissed Thayer’s claims against Gonzales. Thayer filed a
timely notice of appeal.
II. DELIBERATE INDIFFERENCE CLAIMS
We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment is appropriate if the record discloses “that there is no
genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c)(2). The proponent of the
motion typically bears the burden of showing a lack of evidence to support his
opponent’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
9
Case: 08-20817 Document: 00511020913 Page: 10 Date Filed: 02/04/2010
No. 08-20817
movant meets his initial burden, the burden shifts to the nonmovant to set forth
specific facts showing the existence of an issue for trial. Id. at 324. The
nonmovant cannot satisfy his summary judgment burden “with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence.”
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation
marks and citations omitted).
We approach summary judgment differently when qualified immunity is
at issue. See id. In this context, “[t]he moving party is not required to meet its
summary judgment burden for a claim of immunity.” Id. (internal quotation
marks and citation omitted). Rather, the movant need only plead her good-faith
entitlement to qualified immunity, whereupon “the burden shifts to the plaintiff
to rebut it.” Id. (internal quotation marks, citation, and emphasis omitted); see
also Gates v. Texas Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 419
(5th Cir. 2008) (noting that, when a government official pleads qualified
immunity, the 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”).
A.
Thayer argues that the evidence shows that the defendants were
personally involved in denying him care and acted with deliberate indifference
by “refusing any kind of medical treatment.” He reiterates his contention that
Adams did not respond to his emergency grievance and discontinued his Tylenol
#3. The defendants contend that the district court properly granted judgment
in their favor.
Thayer does not address, and has thus abandoned, the issue whether the
district court erred by determining that the defendants were entitled to Eleventh
Amendment immunity. See Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007)
10
Case: 08-20817 Document: 00511020913 Page: 11 Date Filed: 02/04/2010
No. 08-20817
(noting that even pro se litigants must brief arguments in order to preserve
them). Thayer thus has shown no error in connection with the district court’s
determinations that the defendants were entitled to immunity with respect to
his claims against them in their official capacities and that their motion for
summary judgment should have been granted as to these claims. See id.
B.
To determine whether officials are entitled to qualified immunity for a
constitutional violation, we conduct a familiar two-step analysis. See Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 129 S.
Ct. 808, 813 (2009); see also Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir.
2009). We first determine whether the plaintiff has alleged a violation of a
constitutional right; “if so, we turn to whether the officers’ conduct was
objectively reasonable in light of clearly established law at the time the
challenged conduct occurred.” Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir.
2005) (citing Anderson v. Creighton, 483 U.S. 635, 639 (1987)). We apply an
objective standard, “based on the viewpoint of a reasonable official in light of the
information then available to the defendant and the law that was clearly
established at the time of the defendant’s actions.” Freeman v. Gore, 483 F.3d
404, 411 (5th Cir. 2007). We have the discretion to decide which qualified
immunity prong to address first, “in light of the circumstances in the particular
case at hand.” Collier, 569 F.3d at 217.
Prison officials violate the Eighth Amendment’s prohibition against cruel
and unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an “unnecessary and wanton
infliction of pain.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation
marks, citation, and emphasis omitted). A prison official acts with deliberate
indifference if he “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
11
Case: 08-20817 Document: 00511020913 Page: 12 Date Filed: 02/04/2010
No. 08-20817
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Failed treatments, negligence, and
medical malpractice are insufficient to give rise to a successful claim of
deliberate indifference to serious medical needs. Gobert, 463 F.3d at 346. A
prisoner who merely disagrees with the course of treatment provided, or
contends that he should have received additional treatment, likewise does not
raise a viable deliberate indifference claim. Id.; see also Domino v. Texas Dep’t
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
To prevail on a claim of deliberate indifference to medical needs, the
plaintiff must establish that the defendant denied him treatment, purposefully
gave him improper treatment, or ignored his medical complaints. Gobert, 463
F.3d at 346; Domino, 239 F.3d at 756. “Medical records of sick calls,
examinations, diagnoses, and medications may rebut an inmate’s allegations of
deliberate indifference.” Gobert, 463 F.3d at 346 n.24 (quoting Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995)). “Deliberate indifference is an
extremely high standard to meet.” Id. at 346 (internal quotation marks and
citation omitted). In a situation where the deficiencies in medical treatment
were minimal, continuing pain alone does not constitute a constitutional
violation. Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992). A delay in
treatment likewise does not violate the Eighth Amendment unless there has
been deliberate indifference that results in substantial harm. Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Nevertheless, if a prisoner
establishes deliberate indifference to his serious medical needs, he may recover
damages for pain he suffered during the delay of treatment. See Easter v.
Powell, 467 F.3d 459, 464-65 (5th Cir. 2006).
12
Case: 08-20817 Document: 00511020913 Page: 13 Date Filed: 02/04/2010
No. 08-20817
C.
Thayer has not shown that the defendants acted with deliberate
indifference to his serious medical needs concerning his cell assignment, lack of
blankets, lack of Tylenol #3, lack of anticoagulant injections, or lack of bandage
changes. A review of the record establishes that Nurse Mary Adams never saw
Thayer and took no actions in relation to his treatment. Adams was not
assigned to the Ellis Unit and had no supervisory authority to respond to
Thayer’s complaints or grievance forms, which would not have been submitted
to her. To the extent that Thayer argues that a change to his medication was
ordered by Nurse Adams, rather than Dr. Adams, the record refutes this
assertion.2 See Gobert, 463 F.3d at 346 n.24. Thayer has not demonstrated that
the district court erred in dismissing his claims against Adams.
There was likewise no error in the district court’s dismissal of Thayer’s
claims that Flisowski and Gonzales failed to treat him. We must conclude, after
carefully reviewing the record, that Flisowski’s and Gonzales’s actions did not
show deliberate indifference, and were not “objectively unreasonable in light of
clearly established law at the time of the conduct in question.” See Freeman, 483
F.3d at 411. Thayer says Flisowski and Gonzales denied him treatment and
ignored his complaints of pain. However, they had no authority to prescribe
drugs or embark on a different course of treatment. Moreover, Thayer’s
assertions are belied in part by his statement that Flisowski examined his
records on March 30, 2005, and concluded that she could not give him Tylenol
#3 in light of Dr. Adams’s orders. Thayer has never asserted that he asked the
2
To the extent Thayer avers that his declarations, when coupled with those of other
inmates, raise a genuine issue of material fact as to his claim against Nurse Adams, he is
mistaken. None of these individuals claims to have heard or otherwise witnessed Nurse
Adams change Thayer’s medication. They either allege that they heard someone else aver that
Nurse Adams had taken this action or assert that Nurse Adams took this action without
explaining how they learned of Nurse Adams’s involvement. Thayer thus offers only hearsay
and assertions lacking any indicia of personal knowledge.
13
Case: 08-20817 Document: 00511020913 Page: 14 Date Filed: 02/04/2010
No. 08-20817
defendants for Motrin, that they refused to give him this drug, or that they
otherwise hampered his receipt of this medication. While Thayer complains that
his dressing was not changed, this was not prescribed, and Thayer suffered no
infection or lasting harm. Because Gonzales and Flisowski were not empowered
to take action contrary to doctor’s orders, their inability to alleviate Thayer’s
pain is not a grievance of constitutional magnitude. See Gobert, 463 F.3d at 346;
cf. Easter, 467 F.3d at 464-65 (denying qualified immunity where nurse failed
to follow a prescribed course of treatment that called for the administration of
nitroglycerin to inmate when he experienced chest pain); Harris v. Hegmann,
198 F.3d 153, 159-60 (5th Cir. 1999) (denying qualified immunity to doctor and
nurses who ignored inmate’s “urgent and repeated requests for immediate
medical treatment for his broken jaw and his complaints of excruciating pain”).
III. DISCOVERY MATTERS
Thayer says the district court hamstrung his ability to prove his case by
denying his discovery request on the basis that defendants had invoked qualified
immunity. “We review the district court’s decision to preclude further discovery
prior to granting summary judgment for abuse of discretion.” Krim v. BancTexas
Group, Inc., 989 F.2d 1435, 1441 (5th Cir. 1993) (citations omitted). Thayer has
shown no error in connection with the district court’s discovery ruling. The
defense of qualified immunity protects officials “from the concerns of litigation,
including avoidance of disruptive discovery.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1953 (2009) (quotation omitted). In accordance with this principle, a defendant
who invokes qualified immunity “is entitled to dismissal before the
commencement of discovery” if the plaintiff’s assertions fail to “state a claim of
violation of clearly established law.” Vander Zee v. Reno, 73 F.3d 1365, 1368
(5th Cir. 1996) (internal quotation marks and citation omitted). Even limited
discovery on the issue of qualified immunity “must not proceed until the district
court first finds that the plaintiff’s pleadings assert facts which, if true, would
14
Case: 08-20817 Document: 00511020913 Page: 15 Date Filed: 02/04/2010
No. 08-20817
overcome the defense of qualified immunity.” Wicks v. Miss. State Employment
Servs., 41 F.3d 991, 994 (5th Cir. 1995) (emphasis omitted). Thayer does not
identify, and a review of his complaint does not reveal, allegations sufficient to
raise a specific factual issue concerning the legality of the defendants’ behavior
such that he would be entitled to discovery. Thayer has shown no error in
connection with the district court’s discovery decision.
IV. APPOINTMENT OF COUNSEL
Finally, Thayer argues that he should have received appointed counsel
because his case is complex and he is ignorant of the law. Indigent plaintiffs
proceeding under § 1983 are not entitled to appointed counsel absent exceptional
circumstances, and we review the denial of such a motion for a clear abuse of
discretion. Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir.), cert. denied, 128 S.
Ct. 707 (2007); Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006). Factors
used to determine whether the appointment of counsel is appropriate in a civil
case include “the type and complexity of the case,” the plaintiff’s ability to
present his case, the plaintiff’s ability to investigate his case, and the level of
skill needed to present evidence and cross-examine witnesses. Baranowski, 486
F.3d at 126 (quotation omitted). Thayer has not shown that his case is
exceptional. He has investigated and presented the facts of his case well, and
has ably identified the controlling legal standards. The district court did not
abuse its discretion by declining to appoint counsel to represent Thayer. See id.;
Williams, 466 F.3d at 335.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
15