Travis Blank v. Harold Eavenson

Case: 12-10484 Document: 00512280730 Page: 1 Date Filed: 06/19/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 19, 2013

Nos. 12-10484 c/w 12-10539

Lyle W. Cayce

Clerk

TRAVIS HUNTER BLANK,

Plaintiff-Appellant,

v.

HAROLD EAVENSON; BOB GUZIK; MEDICAL DOCTOR LES

SANDKNOP,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Texas

U.S.D.C. No. 3:11-cv-1327-K-BK

Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit

Judges.

PER CURIAM:*

Plaintiff-Appellant, Travis Blank appeals from the district court’s grant

of Defendants-Appellees’ motions to dismiss, and subsequent entries of final

judgment. Blank proceeds on appeal pro se. For the reasons provided herein,

we AFFIRM the final judgments of the district court.

I. FACTS1

*

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.

1

For the limited purposes of this appeal, we treat as true all well-pleaded factual

allegations in Blank’s complaint. The live complaint for purposes of this appeal is the

Case: 12-10484 Document: 00512280730 Page: 2 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

Blank is a federal prisoner, convicted of the possession and transportation

of child pornography. While in pre-trial detention, Blank was temporarily

housed at the Rockwall County Jail (the “Jail”), in the vicinity of Dallas, Texas,

pursuant to an arrangement with the U.S. Bureau of Prisons.

Defendant-Appellee, Harold Eavenson is the Sheriff of Rockwall County.

Defendant-Appellee, Bob Guzik is the Jail’s administrator. While not a county

employee like Eavenson and Guzik, Defendant-Appellee, Les Sandknop, D.O.

serves as the Jail’s contractual primary care physician.

Blank suffers from “Crohn’s disease,” a chronic inflammatory bowel

disorder. Upon his arrest and detention on June 30, 2009, Blank informed the

Jail’s medical intake staff of his condition. The charge nurse, Linda Bell, R.N.

learned of Blank’s condition shortly after his arrival.2

In his complaint, Blank alleges that Bell systematically denied him access

to his personal gastrointestinal specialist, and to his pre-detention regiment of

Crohn’s medications on his desired timetable. As a result, Blank alleges that he

suffered “serious complications,” including “heavy internal bleeding.” After an

August 5, 2009 hearing before the U.S. District Court for the Eastern District of

Texas in the child pornography proceedings, the magistrate judge ordered the

amended complaint Blank filed on November 28, 2011. Blank’s appellate briefs contain

additional factual allegations that did not appear in his pleadings. We do not credit these

additional allegations on appeal. See Vornado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)

(per curiam) (citations omitted).

2

Bell is not a party to this appeal. However, Blank named Bell as a defendant in the

district court proceedings. Along with Eavenson, Guzik, and Sandknop (the “current

Appellees”), Bell moved for dismissal. The district court granted dismissal with prejudice to

the three current Appellees, and later granted their subsequent motions for entry of final

judgment. However, unlike the current Appellees’ motions, Bell’s motion turned on her

assertion of qualified immunity. The district court denied Bell’s motion without prejudice, and

granted Bell’s alternative motion, pursuant to Federal Rule of Civil Procedure (“FRCP”) 7(a),

for Blank to file a reply concerning qualified immunity. While Blank failed to file that reply,

the district court proceedings involving Bell continue to the present date.

2

Case: 12-10484 Document: 00512280730 Page: 3 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

U.S. Marshals to ensure that Blank’s Crohn’s disease was “thoroughly addressed

and properly treated” while Blank remained in the Jail’s custody.

Thereafter, the Jail arranged for Sandknop to examine Blank on August

11, 2009, August 26, 2009, February 23, 2010, and March 9, 2010. Blank alleges

that Sandknop—who is not a gastrointestinal specialist—removed him from his

pre-detention Crohn’s medications, failed to conduct a full physical examination,

and failed to prescribe appropriate replacement Crohn’s medications. While

Sandknop drew a blood sample during the February 23 examination, Blank

alleges that the doctor failed to check him for intestinal swelling. While

Sandknop prescribed medications for Blank’s symptoms, Blank alleges that

Sandknop refused to refer him to a specialist.

At another child pornography hearing before the Eastern District of Texas,

the magistrate judge ordered that Blank be examined by his personal specialist.

Blank alleges that Bell failed to comply with the magistrate judge’s order. On

March 13, 2010, Blank was admitted to the local emergency room with a fever

of 104.2° F. The on-call doctor advised that Blank be examined by a

gastrointestinal specialist within three days.

Nine days later, on March 22, 2010, Blank was taken to a gastrointestinal

specialist (not his personal specialist). Rockland County Sheriff’s Deputies

escorted Blank to the examination. There, the specialist advised that Blank be

admitted to a hospital for uninterrupted treatment. Blank alleges that Bell

declined to comply with the specialist’s advice.

On April 5, 2010, Bell again was admitted to the local emergency room,

this time with severe dehydration, malnourishment, hemorrhaging, and anemia.

Bell remained admitted through April 13, 2010, where he was fed by intravenous

drip.

On April 14, 2010, upon learning of the Jail’s handling of Blank’s medical

condition, the magistrate judge ordered Blank’s release—with

3

Case: 12-10484 Document: 00512280730 Page: 4 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

monitoring—pending his trial on the child pornography charges. Upon his

monitored release, Blank was examined by his personal gastrointestinal

specialist, who advised Blank that he had suffered permanent scarring of his

small intestine and permanent damage to his kidneys. Allegedly, the specialist

also advised Blank that Sandknop had prescribed him improper medications for

his symptoms.

II. PROCEEDINGS

On June 17, 2011, Blank filed the instant suit in the U.S. District Court

for the Northern District of Texas, pursuant to 42 U.S.C. § 1983, alleging that

Sandknop and Bell had been deliberately indifferent to the risks posed by his

Crohn’s disease. Blank further alleged that Eavenson and Guzik had

inadequately trained and supervised Bell and Sandknop. Finally, Bell alleged

that Eavenson and Guzik had failed to create or enforce a policy of adequate

supervision of Bell and Sandknop. Put differently, Blank’s final allegation was

that Eavenson and Guzik had implemented a policy of deliberate indifference to

the risks posed by Bell and Sandknop’s inadequate supervision of him.3

Sandknop moved to dismiss, arguing that, at best, Blank had stated a

claim for medical negligence, and that Blank had not pled sufficient non-

conclusory allegations to meet the relatively heightened standard to state a

claim for deliberate indifference to medical risk.4 Eavenson and Guzik also

moved to dismiss, arguing that vicarious liability cannot lie in Section 1983

actions. With respect to Blank’s claims for inadequate training/supervision,

3

To be clear, the distinction between (i) Blank’s claims against Eavenson and Guzik

for inadequate training/supervision; and (ii) Blank’s claims against Eavenson and Guzik for

deliberate indifference to inadequate supervision, hinged on the defendants’ personal

participations in the alleged behaviors. We address this distinction in greater detail below.

Blank proceeded against all four defendants in their individual capacities for money damages.

4

Sandknop also argued that he had not acted under color of state law. The district

court rejected this argument, which Sandknop does not pursue on appeal.

4

Case: 12-10484 Document: 00512280730 Page: 5 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

Eavenson and Guzik argued that Blank had insufficiently alleged their personal

involvement and that, in general, his allegations were vague and conclusory.

With respect to Blank’s claims for deliberate indifference to inadequate

supervision, Eavenson and Guzik again argued that Blank’s allegations were

vague and conclusory. Blank filed a seventeen-page response and six-page sur-

reply in opposition to the motions to dismiss, in which he made additional

factual allegations that had not appeared in his pleadings.

In written recommendations dated February 14, 2012, the magistrate

judge issued findings of facts and conclusions of law. Providing Blank leeway as

a pro se litigant,5 the magistrate judge ordered Blank to file an amended

complaint against Sandknop within fourteen days. The magistrate judge

otherwise recommended that the district court grant Eavenson, Guzik, and

Sandknop’s motions to dismiss. Concerning Eavenson and Guzik, the district

court declined to order an amended complaint because Blank already had

“alleged his best case against [those] Defendants, and the undersigned can

conceive of no basis on which he could recover. . . .” While Blank filed timely

objections to the magistrate judge’s recommendations, he failed to file an

amended complaint against Sandknop.

On March 1, 2012, the district court adopted the magistrate judge’s

recommendations. The district court dismissed all claims against Eavenson,

Guzik, and Sandknop with prejudice, and granted those defendants’ subsequent

motions for entry of final judgment.

Blank timely appealed. As explained above in footnote 2, proceedings

against Bell continue in district court. Therefore, Bell is not a party to this

appeal.

III. Standard of Review

5

Blank presently is represented by counsel in the district court proceedings against

Bell.

5

Case: 12-10484 Document: 00512280730 Page: 6 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

We review de novo the district court’s grant of a motion to dismiss.

Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356, 357 (5th Cir. 2012) (per

curiam) (citations omitted). “To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and

internal quotation marks omitted). “The issue is not whether the plaintiff will

ultimately prevail, but whether he is entitled to offer evidence to support his

claim.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)

(citation omitted).

“In analyzing [a] complaint, we will accept all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Id. (citation omitted).

That said, “conclusory allegations will not suffice to prevent a motion to dismiss,

and neither will unwarranted deductions of fact.” U.S. ex rel. Willard v.

Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003) (alteration,

citation, and internal quotation marks omitted). Rather, “[f]actual allegations

must be enough to raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even if doubtful

in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and

footnote omitted).

IV. DISCUSSION

A. Claim Against Sandknop for Deliberate Indifference to Medical

Risk

1. Applicable Law

“A pretrial detainee’s constitutional right to medical care, whether in

prison or other custody, flows from the . . . due process guarantees of the

Fourteenth Amendment.” Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir.

2000) (footnote omitted) (analogizing to a post-trial prisoner’s Eight Amendment

protection from cruel and unusual punishment). “Liability for failing to provide

6

Case: 12-10484 Document: 00512280730 Page: 7 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

such care attaches if the plaintiff can show that a state official acted with

deliberate indifference to a substantial risk of serious medical harm and that

injuries resulted.” Id. (citation omitted).

“Deliberate indifference requires that the official have subjective

knowledge of the risk of harm.” Id. (citation and internal quotation marks

omitted). “Mere negligence will not suffice, and deliberate indifference, i.e., the

subjective intent to cause harm, cannot be inferred from a failure to act

reasonably.” Id. (alterations, citations, and internal quotation marks omitted).

“To show subjective deliberate indifference, a plaintiff must present evidence”:

(i) “that each defendant had subjective knowledge of facts from which an

inference of substantial risk of serious harm could be drawn”; (ii) “that each

defendant actually drew that inference”; and (iii) “that each defendant’s response

to the risk indicates that the [defendant] subjectively intended that harm occur.”

Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (per curiam) (citation and

internal quotation marks omitted).

“Deliberate indifference is an extremely high standard to meet.” Domino

v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). “It is

indisputable that an incorrect diagnosis by prison medical personnel does not

suffice to state a claim for deliberate indifference.” Id. (citation omitted).

“Rather, the plaintiff must show that the officials 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.” Id. (citation and internal quotation marks omitted). A prison medical

official’s “failure to alleviate a significant risk that the official should have

perceived, but did not is insufficient to show deliberate indifference.” Id. (citing

Farmer v. Brennan, 511 U.S. 825, 838 (1994)) (alteration and internal quotation

marks omitted).

7

Case: 12-10484 Document: 00512280730 Page: 8 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

Indeed, “the question whether . . . additional diagnostic techniques or

forms of treatment is indicated is a classic example of a matter for medical

judgment.” Estelle v. Gamble, 429 U.S. 97, 107 (1976). The medical decision not

to order additional diagnostic techniques or forms of treatment does not

represent deliberate indifference to a medical risk. See id. “At most it is medical

malpractice, and as such the proper forum is the state court under the Texas

Tort Claims Act.” Id. (citing Tex. Rev. Civ. Stat. Ann. art. 6252-19, § 3 (West

1976), and noting that “this statute can be used by prisoners to assert

malpractice claims”).6

2. Analysis

The tension of this issue is as follows: It is true that the mere provision

of medical treatment does not per se preclude a finding of deliberate indifference,

and that deliberate indifference may be found if the treatment provided

evidences (i) the conscious disregard of (ii) a serious medical need. See Lawson

v. Dallas Cnty., 286 F.3d 257, 262-63 (5th Cir. 2002).7 Here, the magistrate

judge from the Eastern District of Texas—a layman with respect to the medical

field—found Blank’s need for treatment so apparent that he ordered Blank’s

monitored release from pre-trial detention.

Notwithstanding the magistrate judge’s order, it only ensures that a

deliberate indifference finding is not per se precluded. Blank still must have

6

In 1985, the Texas legislature repealed Article 6252-19, and re-codified it as part of

the newly-enacted Civil Practice and Remedies Code. This repeal and re-codification was part

of “a topic-by-topic revision of the state’s general and permanent statute law without

substantive change.” See Tex. Civ. Prac. & Rem. Code Ann. § 1.001(a) (West 2013). Section

3 of Article 6252-19 was scattered among multiple sections of the Civil Practice and Remedies

Code. See id. Disposition Table. However, the corresponding provision that is applicable here

can be found at Section 101.021. See id. § 101.021 (“Governmental Liability”).

7

“A serious medical need is one for which treatment has been recommended or for

which the need is so apparent that even laymen would recognize that care is required.” Gobert

v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006) (citation omitted).

8

Case: 12-10484 Document: 00512280730 Page: 9 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

pled “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Iqbal, 556 U.S. at 678 (citation and internal quotation

marks omitted).

We assume without deciding that the magistrate judge’s order is

tantamount to a finding that Blank established a sufficient basis for the “serious

medical need” prong from Lawson. Blank, however, still makes no allegation

sufficient to satisfy the “conscious disregard” prong. To state a facially plausible

claim against Sandknop, Blank must satisfy both prongs from Lawson.

Sandknop examined Blank on August 11, 2009, August 26, 2009, February

23, 2010, and March 9, 2010. As documented above, Blank alleges that

Sandknop removed him from his pre-detention Crohn’s medications, failed to

conduct a full physical examination, and failed to prescribe appropriate

replacement Crohn’s medications, causing, inter alia, permanent scarring of

Blank’s small intestine and permanent damage to his kidneys. Additionally,

Blank alleges that Sandknop failed to check him for intestinal swelling and

refused to refer him to a specialist. This is the full extent of the facts Blank

alleges against Sandknop. The remaining facts alleged in Blank’s complaint are

applicable only to Bell.

Without more—even accounting for the fact that Blank is a pro se

litigant—Blank cannot not establish “conscious disregard” on the part of

Sandknop. Like the litigant in Gamble, Blank perhaps could establish serious

medical malpractice in a Texas Tort Claims Act action. However, he may not

use Section 1983 to assert deliberate indifference without stating even a single

non-conclusory allegation of “conscious disregard” of the applicable standard of

care (as opposed to simple deviation—even gross deviation—from that

standard).8

8

This is not to pre-judge the sufficiency of a Section 1983 claim against Bell, against

whom Blank may have sufficiently alleged “conscious disregard.” Since it is not before us, we

9

Case: 12-10484 Document: 00512280730 Page: 10 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

The district court rightly dismissed Blank’s claim against Sandknop for

deliberate indifference to medical risk.

B. Claims Against Eavenson and Guzik

1. Claims for Inadequate Training/Supervision

“Under section 1983, supervisory officials are not liable for the actions of

subordinates on any theory of vicarious liability.” Thompkins v. Belt, 828 F.2d

298, 303 (5th Cir. 1987) (citations omitted). Nevertheless, a supervisor may be

held liable for the actions of subordinates if: (i) “the [supervisor] failed to

supervise or train the [subordinate]”; (ii) “a causal connection existed between

the failure to supervise or train and the violation of the plaintiff’s rights”; and

(iii) “the failure to supervise or train amounted to deliberate indifference to the

plaintiff’s constitutional rights.” Roberts v. City of Shreveport, 397 F.3d 287, 292

(5th Cir. 2005) (citing, inter alia, City of Canton, Ohio v. Harris, 489 U.S. 378

(1989)). A claim for failure to train or supervise still requires “overt personal

participation” by the supervisor—in that the supervisor must have overtly failed

to train or supervise the subordinate, even if it was the subordinate who directly

acted to inflict the constitutional deprivation upon the plaintiff. Cf. Thompkins,

828 F.2d at 304.

Here, Blank did not plead allegations against Eavenson and Guzik

sufficient to form the basis of a claim under Roberts and Thompkins. Rather,

Blank’s allegations require the Court to infer and speculate as to any alleged

failures to train or supervise.

As the Jail’s administrator, perhaps Guzik should have anticipated—or at

least known of—Bell and Sandknop’s alleged misdeeds. After all, Bell was

Guzik’s employee and Sandknop was Guzik’s contractor. Speculation, however,

is not the applicable pleading standard. See Twombly, 550 U.S. at 555 (citations

reach no definitive conclusion as to that question.

10

Case: 12-10484 Document: 00512280730 Page: 11 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

and footnote omitted). Without a single allegation that Guzik had constructive

knowledge of Bell and Sandknop’s alleged failings, let alone that Guzik was

deliberately indifferent to such knowledge or that additional training or

supervision would have made a difference, Blank cannot state a cognizable claim

against Guzik under Roberts and Thompkins.

Any claim against Eavenson is even more speculative. Relative to Guzik,

Eavenson (Rockwall County’s Sheriff) is even further removed from Bell and

Sandknop’s activities at the Jail. Eavenson’s only conceivable connection to

Blank’s complained-of activities is that Sheriff’s Deputies had escorted Blank to

his March 22, 2010 examination by a gastrointestinal specialist, who had

advised that Blank be admitted to a hospital for uninterrupted treatment.

Blank alleges that Bell declined to comply with the specialist’s advice.

Let us assume arguendo, without deciding, that Bell indeed failed to

comply with the specialist’s advice, and that such failure was tortious. Blank

still did not allege that the Sheriff’s Deputies would or should have known that

Bell failed to comply, or that Eavenson would or should have learned that

information from the Deputies. Eavenson is simply too far removed from Bell

and Sandknop’s alleged conduct, at least as stated in Blank’s pleadings.

Accordingly, Blank cannot state a cognizable claim against Eavenson under

Roberts and Thompkins.

The district court rightly dismissed Blank’s claims against Eavenson and

Guzik for inadequate training/supervision.

2. Claims for Deliberate Indifference to Inadequate

Supervision

“Supervisory liability exists even without overt personal participation in

the offensive act if supervisory officials implement a policy so deficient that the

policy itself is a repudiation of constitutional rights and is the moving force of [a]

constitutional violation.” Thompkins, 828 F.2d at 304 (citing, inter alia, Monell

11

Case: 12-10484 Document: 00512280730 Page: 12 Date Filed: 06/19/2013

Nos. 12-10484 c/w 12-10539

v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978)) (footnote and internal

quotation marks omitted).9 In order to be liable on such a theory of deliberate

indifference to inadequate supervision, the supervisory officials must have had

actual or constructive knowledge of the deficient policy at issue. See Bennett,

735 F.2d at 862.

Here, in Paragraph 6 of his complaint, Blank alleged that Eavenson had

violated his Due Process rights “with deliberate indifference” by “fail[ing] to

create a policy to protect those rights” and by “fail[ing] to enforce a policy already

created that would have [protected those rights].” In Paragraph 7 of his

complaint, Blank stated an identical allegation against Guzik. Nowhere in his

complaint, nor in his response/sur-reply to the motions to dismiss, did Blank

meaningfully develop these general allegations.

“[C]onclusory allegations will not suffice to prevent a motion to dismiss,

and neither will unwarranted deductions of fact.” Willard, 336 F.3d at 379

(alteration, citation, and internal quotation marks omitted). Therefore, the

district court rightly dismissed Blank’s claims against Eavenson and Guzik for

deliberate indifference to inadequate supervision.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the final judgments of the district

court.

9

A policy includes a “persistent, widespread practice of [municipal] officials or

employees, which, although not authorized by officially adopted and promulgated policy, is so

common and well settled as to constitute a custom that fairly represents municipal policy.”

See Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per curiam).

12