Joseph v. Jefferson

Case: 20-40498 Document: 00516541803 Page: 1 Date Filed: 11/10/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

November 10, 2022

No. 20-40498 Lyle W. Cayce

Clerk

Demetrius Sherman Joseph, Sr.,

Plaintiff—Appellant,

versus

William R. Jefferson, Jr.; Christopher A. Wood;

Annuncia Wright; Mark A. Callahan; Francisco Garcia;

Brandon Howard,

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:17-CV-235

Before Stewart, Willett, and Oldham, Circuit Judges.

Per Curiam:*

Demetrius Sherman Joseph, Sr., an inmate in custody of the Texas

Department of Criminal Justice (“TDCJ”), brought this 42 U.S.C. § 1983

suit against several prison officers alleging they used excessive force against

*

Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.

Case: 20-40498 Document: 00516541803 Page: 2 Date Filed: 11/10/2022

No. 20-40498

him. He also brought claims against a nurse at the University of Texas

Medical Branch at Galveston alleging that she failed to provide adequate

medical treatment. The district court severed the excessive force claims

against the officers into a separate action and granted the nurse’s motion for

summary judgment. For the following reasons, we affirm.

I. Factual & Procedural Background

Joseph alleges that several TDCJ officers used excessive force against

him during incidents that took place in February 2017. According to Joseph,

the first incident took place on February 14 while he was waiting for a

physical. He alleges that, while seated in a chair, he got into an argument and

subsequent altercation with officer William R. Jefferson, Jr., who punched

him in the head, ear, neck, side, and cheek. He further alleges that officers

Donnell D. Franklin and Christopher A. Wood then held him down, kicked

and punched him, and slammed him to the floor. As a result, he claims that

he suffered bruises and contusions, lacerations, and aggravation of an existing

back condition.

After the incident, licensed vocational nurse Annuncia Wright

attended to Joseph. Joseph alleges that Wright failed to examine his back for

injuries, concealed his injuries to protect the officers, failed to prescribe him

pain medication, failed to refer him for follow-up treatment, and failed to

properly document his injuries. Wright’s medical charts, on the other hand,

indicate that she documented her treatment of Joseph, recorded his

complaints of pain, observed no visible injuries or signs of respiratory

distress, and concluded that no further treatment was necessary.

Joseph further alleges that he was assaulted for a second time later that

day in his cell by officers Jefferson and Mark A. Callahan. He alleges that the

two officers kicked him on the ground and then dragged him to a bunk. From

there, he claims that Jefferson punched, kicked, and stomped him on his

2

Case: 20-40498 Document: 00516541803 Page: 3 Date Filed: 11/10/2022

No. 20-40498

back, side, head, and legs. Joseph complains that this incident was not

reported, and that Wright did not examine him until two weeks later. Joseph

avers that when Wright did examine him, she downplayed his injuries and

failed to examine his back, though she referred him to a medical provider.

Joseph also alleges that he was sprayed with chemical agents the

following morning. Wright attended to Joseph after this incident, took his

vital signs, visually inspected him for injuries, documented his complaints,

and noted no visible injuries but that he appeared to be in respiratory distress.

Due to his respiratory distress, she directed security to take him for further

medical evaluation.

Two days later, Joseph was seen by licensed practical nurse Kathryn

Claud for the reported use of force incident that occurred on February 14.

Claud observed small scrapes on his wrists, a small scrape on the back of his

head, as well as redness, heat, and swelling on a surgical scar on Joseph’s

back. She then consulted with a doctor who ordered an x-ray of his lower back

and Tylenol for pain. The x-ray showed no abnormalities and that the

hardware in Joseph’s back was intact.

Finally, Joseph appears to allege that he was subjected to a third use

of force on February 28 that was never reported. The record indicates that

Wright examined him on his day. She noted in his medical chart that he had

no visible new injuries or respiratory distress but that he had complained of

backpain and had been x-rayed.

In June 2017, Joseph filed a pro se complaint under 42 U.S.C. § 1983

alleging that the TDCJ officers’ conduct constituted excessive force and that

Wright failed to provide adequate medical treatment in violation of his

constitutional rights. He sought declaratory, injunctive, and compensatory

relief.

3

Case: 20-40498 Document: 00516541803 Page: 4 Date Filed: 11/10/2022

No. 20-40498

Wright moved for summary judgment, arguing that the Eleventh

Amendment barred Joseph’s claims for monetary damages against her in her

official capacity and that she was entitled to qualified immunity. The

magistrate judge agreed that Wright was entitled to qualified immunity and

recommended granting her motion for summary judgment. Joseph objected

to the magistrate judge’s recommendation. The district court then severed

the excessive force claims into a separate action and adopted the magistrate

judge’s recommendation to grant summary judgment in favor of Wright on

Joseph’s claims against her. Joseph appealed.

II. STANDARD OF REVIEW

As a preliminary matter, we note that the district court severed the

excessive force claims against Jefferson, Wood, Callahan, Garcia, and

Howard into a separate action. “Severance under Rule 21 creates two

separate actions or suits where previously there was but one. Where a single

claim is severed out of a suit, it proceeds as a discrete, independent action,

and a court may render a final, appealable judgment in either one of the

resulting two actions[.]” United States v. O’Neil, 709 F.2d 361, 368 (5th Cir.

1983). Accordingly, before this court is only Joseph’s appeal of the district

court’s grant of summary judgment in favor of Wright on grounds of qualified

immunity. Since final judgment was entered on those claims, we conclude

that we have jurisdiction to review that order.

We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. Caldwell v. KHOU-TV, 850

F.3d 237, 241 (5th Cir. 2017). Summary judgment is appropriate “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).

A fact is material if it could “affect the outcome of the suit under the

governing law[.]” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A

4

Case: 20-40498 Document: 00516541803 Page: 5 Date Filed: 11/10/2022

No. 20-40498

dispute is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Id. We view all evidence “in the light

most favorable to the nonmoving party and draw[] all reasonable inferences

in that party’s favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013).

“[C]onclusional allegations and unsubstantiated assertions may not be relied

on as evidence by the nonmoving party.” Carnaby v. City of Houston, 636 F.3d

183, 187 (5th Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986). “A panel may affirm summary judgment on any ground supported by

the record, even if it is different from that relied on by the district court.”

Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012) (internal

quotation marks and citation omitted).

III. DISCUSSION

When a government official performs discretionary functions, they

are generally shielded from civil liability if “their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Under the test for qualified immunity, we ask “(1) whether the plaintiff has

alleged a violation of a clearly established constitutional right; and (2) if so,

whether the defendant’s conduct was objectively unreasonable in the light of

the clearly established law at the time of the incident.” Domino v. Tex. Dept.

of Crim. Justice, 239 F.3d 752, 755 (5th Cir. 2001) (quoting Hare v. City of

Corinth, 135 F.3d 320, 325 (5th Cir. 1998) (en banc)).

The Eighth Amendment “impos[es] a duty on prison officials to

‘ensure that inmates receive adequate . . . medical care.’” Easter v. Powell,

467 F.3d 459, 463 (5th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825,

832 (1994)). A prison official violates this duty when his or her “conduct

demonstrates deliberate indifference to a prisoner’s serious medical needs,

5

Case: 20-40498 Document: 00516541803 Page: 6 Date Filed: 11/10/2022

No. 20-40498

constituting an ‘unnecessary and wanton infliction of pain.’” Id. (quoting

Wilson v. Seiter, 501 U.S. 294, 297 (1991)).

To prevail on his claim of deliberate indifference, Joseph must show

that Wright had actual knowledge of a substantial risk of harm and

disregarded that risk. See id. He cannot do so.

We begin with Joseph’s argument that Wright was deliberately

indifferent because she delayed providing him medical treatment. A delay

will constitute an Eighth Amendment violation “if there has been deliberate

indifference [that] results in substantial harm.” Easter, 467 F.3d at 463.

According to Joseph, Wright did not see him for two weeks after the second

use of force incident that took place on February 14. The record evidence,

however, reveals that Wright attended to Joseph the following day (February

15) after he alleged that he was sprayed with chemicals and another nurse

attended to him two days later (February 17). During Wright’s examination

of Joseph on the 15th, she took his vital signs, visually inspected him for

injuries, documented his complaints, and noted no visible injuries. She

observed that he appeared to be in respiratory distress, however, so she sent

him for further medical evaluation. When Joseph was seen by the second

nurse on February 17, she confirmed in her records that he only had a few

small scrapes on his wrists and head with some swelling on the surgical scar

on his back. He was prescribed Tylenol and a subsequent x-ray of his back

showed no abnormalities. These records rebut Joseph’s argument that

Wright was deliberately indifferent by delaying medical treatment. See

Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (“Medical records of

sick calls, examinations, diagnoses, and medications may rebut an inmate’s

allegations of deliberate indifference.”).

We next turn to Joseph’s argument that Wright was deliberately

indifferent by failing to examine his back and prescribe him pain medication.

6

Case: 20-40498 Document: 00516541803 Page: 7 Date Filed: 11/10/2022

No. 20-40498

Wright’s motion for summary judgment included the medical records from

the three times she saw Joseph. During those interactions, she noted Joseph’s

complaints, examined him for injuries, and provided her assessment.

According to Wright’s notes, she often observed no visible injuries or signs

of respiratory distress. On at least two occasions, however, she referred him

for further medical evaluation after determining that it was warranted.

Consequently, these records also rebut Joseph’s argument that Wright was

deliberately indifferent by declining to further examine his back or prescribe

him pain medication. See Banuelos, 41 F.3d at 235.

Based on this evidence, Joseph has failed to show that Wright was

deliberately indifferent to his serious medical needs. Instead, the competent

summary judgment evidence shows that Wright evaluated Joseph and

provided an assessment that she determined to be appropriate. Though

Joseph disagrees with Wright’s decision not to further examine his back or

prescribe him pain medication, his mere disagreement with her treatment

decisions does not rise to the level of a constitutional violation. See Stewart

v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999) (“Disagreement with medical

treatment does not state a claim for Eighth Amendment indifference to

medical needs.”). Because Joseph has failed to show that Wright was

deliberately indifferent to his medical needs, he has not shown a

constitutional violation took place. Accordingly, the district court did not err

in holding that Wright was entitled to qualified immunity. See Domino, 239

F.3d at 755.

IV. CONCLUSION

The district court’s summary and final judgments in favor of Wright

are AFFIRMED. All pending motions are DENIED.

7