Petition for Writ of Certiorari — Lannette Linthicum, et al., Petitioners v. Robin Wayne Smith
Supreme Court briefFeb 8, 2023
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No. 22-___
In the Supreme Court of the United States
LANNETTE LINTHICUM, ET AL., PETITIONERS
v.
ROBIN WAYNE SMITH.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
JUDD E. STONE II
Solicitor General
Counsel of Record
JUSTIN W. MANCHESTER
Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Judd.Stone@oag.texas.gov
(512) 936-1700
QU E S TIO NS PR E S E NTE D
This Court has repeatedly held that cases postdating
a government official’s allegedly unlawful acts are of “no
use” in analyzing the clearly established prong of qualified immunity. City of Tahlequah v. Bond, 142 S. Ct. 9,
12 (2021) (per curiam); see also, e.g., Kisela v. Hughes,
138 S. Ct. 1148, 1154 (2018) (per curiam); Brosseau v.
Haugen, 543 U.S. 194, 200 n.4 (2004) (per curiam). The
decision below created an exception from this rule for
caselaw published after the defendant’s acts that discusses pre-existing law. The Fifth Circuit joined the Second, Sixth, Ninth, and Tenth Circuits in embracing this
rule despite this Court’s clear precedent to the contrary.
This Court has also warned lower courts against
“defin[ing] clearly established law at a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500,
503 (2019) (per curiam). And it has summarily reversed
decisions that fail to heed that warning. E.g., Kisela, 138
S. Ct. at 1154-55. Nevertheless, as the dissenting judge
noted, the decision below holds that an authority from an
altogether different factual context clearly established
the constitutional right at issue.
The questions presented are:
1. Whether the Fifth Circuit manifestly departed
from this Court’s precedent by holding that authority
that postdates the defendant’s alleged acts can clearly
establish the law for purposes of overcoming qualified
immunity.
2. Whether the Fifth Circuit defined inmates’ rights
to care for serious medical needs at an impermissibly
high level of generality.
(I)
II
PA RTI E S TO T HE P R O C E E D I NG
Petitioners Lannette Linthicum, Director of Health
Services Division, Texas Department of Criminal Justice; Denise DeShields, Executive Medical Director,
Texas Tech University; Sheri J. Talley, Medical Director, Texas Department of Criminal Justice, were defendants–appellants in the court of appeals.
Respondent Robin Wayne Smith was plaintiff–appellee in the court of appeals.
Dennis Melton, Unit Health Administrator, was an
unserved defendant in the district court.
RE L ATE D P RO C E E D ING S
Smith v. Linthicum, No. 4:19-cv-0787, U.S. District
Court for the Southern District of Texas. Order entered
March 30, 2021.
Smith v. Linthicum, No. 21-20232, U.S. Court of Appeals for the Fifth Circuit. Judgment entered October
12, 2022.
III
TABLE OF CONTENTS
Page
Questions Presented ......................................................... I
Parties to the Proceeding ................................................ II
Related Proceedings ........................................................ II
Table of Authorities ......................................................... V
Opinions Below.................................................................. 1
Jurisdiction ........................................................................ 1
Constitutional and Statutory Provisions Involved ......... 1
Statement .......................................................................... 1
I. Factual Background .............................................. 1
II. Procedural History................................................ 3
Reasons For Granting the Petition ................................. 5
I. The Fifth Circuit’s Holding Is So Contrary
to this Court’s Recent Precedent That
Summary Reversal Is Appropriate...................... 5
A. This Court has never recognized a
clearly established Eighth Amendment
right not to be subject to generally
applicable medical policies .............................. 6
B. The Fifth Circuit violated this Court’s
precedent by relying on circuit authority
postdating the allegedly unlawful conduct .... 9
C. The Fifth Circuit violated this Court’s
precedent by stating the right at issue at
an impermissibly high level of generality .... 17
II. In the Alternative, the Court Should Grant
Plenary Review.................................................... 20
A. The Fifth Circuit is not alone in denying
immunity based on cases postdating a
defendant’s acts ............................................. 21
IV
B. The questions presented are important,
and this case is an excellent vehicle ............. 25
Conclusion ....................................................................... 27
V
TA BLE O F AU T HO R I TIE S
Page(s)
Cases:
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ..................................... 13, 15, 18, 20
Bell v. City of Southfield,
37 F.4th 362 (6th Cir. 2022) ......................................... 14
Blackmore v. Kalamazoo County,
390 F.3d 890 (6th Cir. 2004) .................................. 12, 14
Bond v. City of Tahlequah,
981 F.3d 808 (10th Cir. 2020) ..................... 11-12, 24, 27
Brosseau v. Haugen,
543 U.S. 194 (2004) .......................... I, 6, 9-13, 17, 25-26
Capp v. County of San Diego,
940 F.3d 1046 (9th Cir. 2019) ................................ 22, 23
City & County of San Francisco v. Sheehan,
575 U.S. 600 (2015) ....................................................... 26
City of Escondido v. Emmons,
139 S. Ct. 500 (2019) ............................................... I, 18
City of Tahlequah v. Bond,
142 S. Ct. 9 (2021) (per curiam) ...................... I, 6, 9, 11
Clinkscales v. Pamlico Corr. Facility Med. Dep’t,
No. 00-6798, 2000 WL 1726592
(4th Cir. Nov. 21, 2000) ........................................... 12-13
Colburn v. Upper Darby Township,
838 F.2d 663 (3d Cir. 1988) .......................................... 19
946 F.2d 1017 (3d Cir. 1991) ........................................ 20
Delaughter v. Woodall,
909 F.3d 130 (5th Cir. 2018) ..........................9-20, 26-27
Demaree v. Pederson,
887 F.3d 870 (9th Cir. 2018) ........................................ 23
VI
Page(s)
Cases (ctd.):
District of Columbia v. Wesby,
138 S. Ct. 577 (2018) ...................................... 8, 15-16, 18
Easter v. Powell,
467 F.3d 459 (5th Cir. 2006) .......................... 4, 9, 10, 26
Erickson v. Pardus,
551 U.S. 89 (2007) ....................................................... 7, 9
Estelle v. Gamble,
429 U.S. 97 (1976) ........................................... 6, 8, 16, 17
Farmer v. Brennan,
511 U.S. 825 (1994) ................................................ 6-7, 16
Feminist Majority Found. v. Hurley,
911 F.3d 674 (4th Cir. 2018) ........................................ 15
Garcia v. Blevins,
957 F.3d 596 (5th Cir. 2020), ), cert.
denied, 141 S. Ct. 1058 (2021) ..................................... 14
Garcia v. McCann,
833 F. App’x 69 (9th Cir. 2020) ............................. 23, 27
Gibson v. Collier,
140 S. Ct. 653 (2019) ................................................... 5, 7
Glenn v. Washington County,
673 F.3d 864 (9th Cir. 2011) ........................................ 11
Hughes v. Kisela,
862 F.3d 775 (9th Cir. 2017) .................................. 11, 12
Jones v. Treubig,
963 F.3d 214 (2d Cir. 2020) .......................................... 21
Keith v. Koerner,
843 F.3d 833 (10th Cir. 2016) ...................................... 25
Kisela v. Hughes,
138 S. Ct. 1148 (2018) ...................................... I, 6, 9, 12
VII
Page(s)
Cases (ctd.):
Lachance v. Town of Charlton,
990 F.3d 14 (1st Cir. 2021) ........................................... 25
Lincoln v. Turner,
874 F.3d 833 (5th Cir. 2017) ........................................ 15
Miles v. Rich,
576 F. App’x 394 (5th Cir. 2014) ............................. 9, 26
Mullenix v. Luna,
577 U.S. 7 (2015) ...................................................... 17-18
Ouza v. City of Dearborn Heights,
969 F.3d 265 (6th Cir. 2020) .................................. 21, 27
Paugh v. Uintah County,
47 F.4th 1139 (10th Cir. 2022) ..................................... 24
Perry v. Durborow,
892 F.3d 1116 (10th Cir. 2018) ............................... 24-25
Plumhoff v. Rickard,
572 U.S. 765 (2014) ....................................................... 26
Reed v. Cameron,
380 F. App’x 160 (3d Cir. 2010) .............................. 12-13
Reese v. County of Sacramento,
888 F.3d 1030 (9th Cir. 2018) ...................................... 22
Reichle v. Howards,
566 U.S. 658 (2012) ................................................... 8, 16
Rivas-Villegas v. Cortesluna,
142 S. Ct. 4 (2021) .................................................. 8-9, 19
Sampson v. County of Los Angeles,
974 F.3d 1012 (9th Cir. 2020) ........................... 22-23, 27
Saucier v. Katz,
533 U.S. 194 (2001) ................................................. 13, 18
VIII
Page(s)
Cases (ctd.):
Tan Lam v. City of Los Banos,
976 F.3d 986 (9th Cir. 2020) ................................... 23-24
Taylor v. Barkes,
575 U.S. 822 (2015) .............................................. 7, 19-20
Thibodeaux v. Thomas,
548 F. App’x 174 (5th Cir. 2013) ............................ 12-13
Thomas v. Tice,
948 F.3d 133 (3d Cir. 2020) .......................................... 25
Wesley v. Campbell,
779 F.3d 421 (6th Cir. 2015) ........................................ 22
White v. Pauly,
580 U.S. 73 (2017) .................................................... 25-26
Whitley v. Albers,
475 U.S. 312 (1986) ....................................................... 16
Wilkins v. City of Tulsa,
33 F.4th 1265 (10th Cir. 2022) ..................................... 24
Williams v. Hansen,
5 F.4th 1129 (10th Cir. 2021) ....................................... 14
Wilson v. Layne,
526 U.S. 603 (1999) ....................................................... 14
Wood v. Moss,
572 U.S. 744 (2014) ....................................................... 15
Zion v. County of Orange,
874 F.3d 1072 (9th Cir. 2017) ................................ 23, 24
Constitutional Provisions, Statutes, and Rules:
U.S. Const. amend VIII............................... 3-5, 7, 10, 15-20
28 U.S.C. § 1254(1) ............................................................... 1
42 U.S.C. § 1983 .............................................................. 9, 24
1st Cir. Loc. R. 36.0(a) ....................................................... 14
IX
Page(s)
Constitutional Provisions, Statutes, and Rules (ctd.):
5th Cir. R. 47.5.1 ................................................................. 14
Judge Richard S. Arnold, Unpublished
Opinions: A Comment,
1 J. APP. PRAC. & PROCESS 219 (1999) ....................... 14
Inmate Information Details, TEX. DEP’T OF
CRIM. JUST., https://inmate.tdcj.texas.gov/
InmateSearch/viewDetail.action?sid=
08275188 (last accessed Feb. 4, 2023) .......................... 1
Petition for Writ of Certiorari,
Gibson v. Collier, 140 S. Ct. 653 (2019)
(No. 18-1586), 2019 WL 2711440................................. 57
Eellan Sivaanesan, Spinal Cord Stimulator,
JOHNS HOPKINS MED., https://tinyurl.com/
2aubuf6x (last visited Feb. 4, 2023) .............................. 8
O PI NIO NS BE LO W
The opinion of the court of appeals (Pet. App. 1a-22a)
is not reported but is available at 2022 WL 7284285. The
opinion of the district court (Pet. App. 26a-44a) is not reported but is available at 2021 WL 1742328.
JU R ISD IC T IO N
The Fifth Circuit rendered judgment on October 12,
2022. It denied petitioners’ petition for rehearing en banc
on November 10, 2022. This Court has jurisdiction under
28 U.S.C. § 1254(1).
C O N STI TU TI O N AL A ND S TA TU TO RY
PRO V I SIO N S I NV O L V E D
Relevant constitutional and statutory provisions are
reproduced in the appendix. Pet. App. 45a-46a.
ST ATE ME N T
I. Factual Background
Respondent Robin Smith is a Texas inmate who has
a chronic pain condition. Pet. App. 27a. In 2002, years before his incarceration, Veterans Administration physicians treated Smith’s condition by surgically implanting
a device, called a spinal-cord stimulator (“SCS”), that
sends low levels of electricity to his spinal cord. Pet. App.
2a, 28a. Smith used the SCS device to manage his pain in
2014 when he was sentenced to 35 years imprisonment
for continuous sexual abuse of a child under the age of
fourteen. Pet. App. 28a. 1
In 2015, Smith complained that his SCS malfunctioned at times, causing him discomfort. Pet. App. 28aSee also Inmate Information Details, TEX. DEP’T OF CRIM.
JUST., https://inmate.tdcj.texas.gov/InmateSearch/viewDetail.action?sid=08275188 (last accessed Feb. 4, 2023).
1
(1)
2
29a. Prison medical personnel treated Smith’s pain with
medication and granted him work restrictions. Pet. App.
4a, 29a. In addition, Smith’s doctors explored the replacement of Smith’s SCS device between 2016 and 2018.
Pet. App. 30a-33a. Smith claimed that the Veterans Administration had approved the replacement of his device
in 2011, but that scheduling difficulties prevented him
from receiving the surgery before he was imprisoned in
2014. Pet. App. 28a.
While in prison, Smith received a number of referrals
for SCS-replacement surgery. The first was rejected by
non-party Dr. Benjamin J. Leeah, Northern Regional
Medical Director of the Texas Tech University Health
Sciences Center, on February 1, 2016. Pet. App. 30a. Dr.
Leeah described the procedure as “most[] likely . . . medically beneficial but not medically necessary.” Id.
In August 2016, Petitioner Dr. Sheri Talley, a management-level official serving as the Southern Regional
Director of the Texas Tech University Health Sciences
Center, also rejected the request to refer for surgery, explaining:
We don’t service, place, replace batteries, or remove any of those stimulators. It will still be there
when his sentence is over. We don’t even have a
specialist on contract, such as a pain specialist
that he can be sent to anyway. He’ll be treated for
his chronic pain the same way all of our patients
are treated.
Pet. App. 31a.
Another doctor treating Smith sought a surgical consultation referral in October 2016. Id. Dr. Talley responded:
3
General surgery stated that [patient] didn’t have
physiological basis for his pain. Pain specialty not
available. Treat chronic pain at the local level.
Id. (alteration in original). Smith’s doctor revisited the
question with Dr. Talley again in January 2017. Pet. App.
32a. Dr. Talley’s response in February 2017 reiterated
her earlier direction:
Care, upkeep, removal of pain stimulators will not
occur while offender is in TDCJ. Batteries will not
be replaced. Please manage pain according to
[Disease Management Guidelines].
Id.
In February 2018, following another surgery request,
Dr. Talley again directed Smith’s physicians to treat
Smith as they would any other pain patient:
Care, upkeep, and/or removal of pain stimulators
will not occur while offender is in TDCJ. Batteries
will not be replaced. Please manage pain at unit
according to policy.
Pet. App. 33a n.36. Consistent with Dr. Talley’s direction, Smith’s physicians treated his pain with pain medication. He alleges the pain worsened over time. See, e.g.,
Pet. App. 32a, 34a.
II. Procedural History
On March 4, 2019, Smith filed a section 1983 suit in
the U.S. District Court for the Southern District of
Texas alleging that Dr. Talley’s denial of SCS-replacement surgery violated the Eighth Amendment. In addition to Dr. Talley, Smith sued Petitioners Dr. Lannette
Linthicum, the Director of the Health Services Division
of the Texas Department of Criminal Justice, and Dr.
Denise DeShields, the Executive Medical Director for
the Texas Tech University Health Science Center. Pet.
4
App. 1a. Smith sued Drs. Linthicum and DeShields under a supervisory theory of liability, alleging that Dr.
Talley enforced a categorical policy against SCS-replacement surgery for which Drs. Linthicum and DeShields
also bore responsibility. Pet. App. 4a. After Smith filed
suit, his SCS device was surgically removed for unrelated reasons. Pet. App. 19a n.2.
In the district court, Petitioners asserted qualified
immunity in a motion for summary judgment. Pet. App.
26a, 42a. The district court rejected Petitioners’ qualified
immunity arguments in a three-sentence analysis concluding that “it was clearly established that ‘a prison inmate could demonstrate an Eighth Amendment violation
by showing that a prison official 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.’” Pet. App. 42a (quoting Easter v. Powell, 467
F.3d 459, 464 (5th Cir. 2006) (per curiam)).
A divided panel of the Fifth Circuit affirmed the district court’s denial of qualified immunity. Pet. App. 2a.
The majority concluded that “one particular decision” by
the Fifth Circuit, Delaughter v. Woodall, 909 F.3d 130,
137-39 (5th Cir. 2018), clearly established the right in
question. Pet. App. 12a. Delaughter denied qualified immunity to prison officials who delayed a needed surgery
for financial reasons. Pet. App. 13a (citing Delaughter,
909 F.3d at 137-39).
Judge Duncan concurred in part and dissented in
part. Pet. App. 17a-22a. He concluded that Delaughter
could not have put Petitioners on notice because it was
decided after Dr. Talley’s last-reported denial of the
5
surgery. Pet. App. 21a-22a. 2 In addition, he distinguished
Delaughter from Smith’s claim because “[n]o evidence
suggests the policy against SCS devices was driven by
cost.” Pet. App. 20a. The panel was unanimous in its
agreement that fact disputes precluded judgment on the
merits of Smith’s Eighth Amendment claim. Pet. App.
19a.
Petitioners sought rehearing en banc, which was denied. Pet. App. 24a.
RE A SO NS FO R GR A NTI NG T HE PE TI TIO N
I. The Fifth Circuit’s Holding Is So Contrary to this
Court’s Recent Precedent That Summary
Reversal Is Appropriate.
The Fifth Circuit denied qualified immunity and held
that a single circuit case—Delaughter—clearly established that a prisoner has a right to be considered for a
medical treatment even when that treatment is not permitted by medical policy. This Court has never recognized such a right—to the contrary, it has refused to
grant review where such a right was demanded. See Gibson v. Collier, 140 S. Ct. 653 (2019) (denying a petition
for a writ of certiorari). Nevertheless, the Fifth Circuit
held that such a right was so clearly established that Petitioners could be held liable for monetary damages. This
was error twice over. First, Delaughter could not put Petitioners on notice of the law because it was decided after
the allegedly unlawful conduct. Second, even if Delaughter could be considered in the qualified immunity analysis, the Fifth Circuit stated the right at issue at too high
a level of generality. Under this Court’s precedent, such
Dr. Talley’s February 2018 rejection, which was cited by the
district court but not the court of appeals, also preceded Delaughter
(by about nine months). See Pet. App. 33a n.36.
2
6
errors merit summary reversal. E.g., City of Tahlequah,
142 S. Ct. at 12; Kisela, 138 S. Ct. at 1153; Brosseau, 543
U.S. at 200 & n.4.
A. This Court has never recognized a clearly
established Eighth Amendment right not to be
subject to generally applicable medical
policies.
According to the panel majority, Petitioners are subject to suit for monetary damages because they applied
“a blanket and non–medically considered policy” to deny
a prisoner an invasive medical treatment that falls outside the scope of the practices of the prison-contracted
physicians. Pet. App. 14a (footnote omitted). The panel
made no attempt to cite this Court’s precedent as clearly
establishing such a right. Instead, it applied “one particular decision” of its own, Pet. App. 12a—even though it
acknowledged that this “Court has explicitly left open
the question of whether Circuit law alone can clearly establish the law for qualified immunity purposes,” Pet.
App. 12a n.5. This was error.
1. This Court’s precedent clearly establishes inmates’ rights against having their “serious medical
needs” met with “deliberate indifference.” See Estelle v.
Gamble, 429 U.S. 97, 104 (1976). But deliberate indifference is an incredibly high burden to meet; “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.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994). This Court has always
held that mere medical malpractice or inadvertent failure to proscribe adequate care is not deliberate indifference. Estelle, 429 U.S. at 105-06. And critically, a disagreement over “a matter for medical judgment” is not
deliberate indifference. Id. at 107. To be liable, the
7
medical official must knowingly “disregard[] an excessive risk to inmate health or safety.” Farmer, 511 U.S.
at 837.
But this Court has expressly held that this broad rule
does not put officers on notice of the type of policies prisons must implement to ensure safety. For example, this
Court has held that a right to adequate suicide screening
is not clearly established because “[n]o decision of this
Court even discusses suicide screening or prevention
protocols.” Taylor v. Barkes, 575 U.S. 822, 826 (2015)
(per curiam).
This Court has never adopted a rule that prisons may
not adopt rules of general applicability for inmate care.
To the contrary, this Court has been asked to hold that
the Eighth Amendment prohibits prisons from applying
uniform medical policies that do not contemplate a prisoner’s preferred form of treatment. Petition for Writ of
Certiorari, at i, Gibson, 140 S. Ct. 653 (2019)
(No. 18-1586), 2019 WL 2711440, at *i (seeking certiorari
from this Court on a question presented of whether a
“claim for deliberate indifference . . . can be disposed of
without any individualized medical evaluation”). This
Court has declined to adopt such a rule. See Gibson, 140
S. Ct. 653 (denying the petition). And this Court has cautioned that departing from prison medical policy can be
deliberate indifference. See Erickson v. Pardus, 551 U.S.
89, 91 (2007) (per curiam) (holding that an inmate’s allegation that hepatitis C treatment was withheld “in violation of Department protocol” was sufficient to withstand
a motion to dismiss).
2. Under this Court’s precedent, this was an easy
case. Far from refusing to treat Smith, Petitioners repeatedly instructed Smith’s doctors to manage his pain
in “the same way all of our patients are treated,” Pet.
8
App. 3a, namely “at the local level,” Pet. App. 31a, and
“according to [Disease Management Guidelines].” Pet.
App. 32a. Even if Smith had received the SCS-replacement surgery he desired, medications would likely have
been necessary. See, e.g., Eellan Sivaanesan, Spinal
Cord Stimulator, JOHNS HOPKINS MED., https://tinyurl.com/2aubuf6x (last visited Feb. 4, 2023). This
course of treatment was evidently more conservative
than Smith would have preferred, but this Court’s
caselaw clearly establishes that such a choice was “a matter for medical judgment.” See Estelle, 429 U.S. at 107.
The Fifth Circuit held that Dr. Talley’s decision was
not medical judgment because it held her decision arguably involved a categorical policy against SCS replacement. Pet. App. 14a. But because no precedent of this
Court establishes the requirements for a prison’s medical policy, the Fifth Circuit instead relied on its own
precedent for the proposition that a medical officer could
not deny treatment based purely on medical policy.
This reliance on a single circuit-court precedent is itself troubling. The Court has repeatedly reserved the
question of whether a circuit may rely on its own precedent when analyzing clearly established law. See, e.g.,
Reichle v. Howards, 566 U.S. 658, 665 (2012) (assuming
“arguendo that controlling Court of Appeals’ authority
could be a dispositive source of clearly established law”);
District of Columbia v. Wesby, 138 S. Ct. 577, 591 n.8
(2018) (reserving the question of whether Circuit precedent may “qualify as controlling authority for purposes
of qualified immunity”); Rivas-Villegas v. Cortesluna,
142 S. Ct. 4, 8 (2021) (per curiam) (assuming “that Circuit
precedent can clearly establish law”). And it was particularly inappropriate for the Fifth Circuit to charge a
state officer with liability for applying policies that this
9
Court’s precedent would have held her liable for disregarding. Cf. Erickson, 551 U.S. at 91 (withholding treatment required by departmental policy may be deliberate
indifference).
B. The Fifth Circuit violated this Court’s
precedent by relying on circuit authority
postdating the allegedly unlawful conduct.
But “[e]ven assuming that Circuit precedent can
clearly establish law for purposes of § 1983,” Rivas-Villegas, 142 S. Ct. at 8, Delaughter could not have done so
here because it was not decided until after the alleged
misconduct. This Court has repeatedly held that cases
decided after a defendant’s allegedly unlawful conduct
“are of no use in the clearly established inquiry.”
Brosseau, 543 U.S. at 200 n.4; see also City of Tahlequah,
142 S. Ct. at 12; Kisela, 138 S. Ct. at 1154. The reason is
plain: “Because the focus is on whether the officer had
fair notice that her conduct was unlawful, reasonableness
is judged against the backdrop of the law at the time of
the conduct.” Brosseau, 543 U.S. at 198. “[A] reasonable
officer is not required to foresee judicial decisions that
do not yet exist;” thus, authority postdating an officer’s
acts is ignored. Kisela, 138 S. Ct. at 1154.
1. The Fifth Circuit’s opinion does not seriously dispute that its only relevant authority is Delaughter. It references two earlier decisions: Easter v. Powell, 467 F.3d
459 (2006) (per curiam), and Miles v. Rich, 576 F. App’x
394 (5th Cir. 2014) (per curiam). But, as Judge Duncan
explained in dissent, neither creates clearly established
law under this court’s jurisprudence. Pet. App. 22a n.4.
Assuming Fifth Circuit precedent can clearly establish law for this purpose, its Miles decision does not because it states on its face that it “is not precedent,” 576
F. App’x at 394 n.*, so it cannot enter the qualified
10
immunity analysis, Pet. App. 22a n.4; see also infra part
I.B.2.b.
Easter is also irrelevant. The panel majority cited
Easter because the defendant there “failed to follow a
prescribed course of treatment.” Pet. App. 14a (quoting
Easter, 467 F.3d at 464). But Smith does not allege that
Dr. Talley failed to follow a prescribed course of treatment. Indeed, Dr. Talley is a regional director responsible for approving referrals made by Smith’s treating
physicians. Pet. App. 3a & n.2. The Easter defendant was
a nurse who allegedly failed to follow a prison doctor’s
prescription to provide the plaintiff with nitroglycerin
when he complained of chest pain. 467 F.3d at 464. Thus,
Easter establishes only that medical providers may be
held liable for departing from medical policy. As already
explained, this type of precedent did not put Petitioners
on notice that the alleged policy against surgical replacement of SCS devices violated the Eighth Amendment.
Delaughter is the only authority the Fifth Circuit
cited as clearly establishing a right against having certain treatments barred by medical policy. Because even
the majority found it was “of course notable that
Delaughter was decided . . . after” the allegedly unconstitutional acts, Pet. App. 12a-13a n.6, this Court’s precedent squarely holds that such a decision cannot reflect
clearly established law for the purposes of qualified immunity analysis, e.g., Brosseau, 543 U.S. at 200 n.4.
2. Instead of disregarding Delaughter as irrelevant,
the Fifth Circuit concluded that Delaughter still had the
“capacity to give ‘reasonable warning’ for two reasons.”
Pet. App. 12a-13a n.6. First, the majority claimed that
the “legal developments” discussed in Delaughter “were
already long in motion” when Dr. Talley acted. Pet. App.
13a n.6. Second, the majority concluded that Dr. Talley
11
could have changed her decision—that is, ordered the
surgery—after the Fifth Circuit decided Delaughter. Id.
Neither justification squares with this Court’s qualified
immunity decisions. See Pet. App. 19a-22a.
a. Authority postdating a defendant’s conduct is not
relevant even if, in the Fifth Circuit’s words, that authority “codified legal developments that were already long
in motion,” Pet. App. 13a n.6, or “strengthened existing
law,” Pet. App. 14a. To say the law needed to be
“strengthened,” id., is to confess that the law did not
clearly exist before Delaughter. Delaughter “of course[]
could not have given fair notice” to defendants who acted
before it existed. Brosseau, 543 U.S. at 200 n.4.
Indeed, this Court has implicitly rejected this “codification” justification before—and done so through summary reversal. For example, in Bond v. City of
Tahlequah, 981 F.3d 808 (10th Cir. 2020), the Tenth Circuit claimed it could rely on authority “decided after the
underlying events” so long as the authority discussed
other cases “issued before the officers’ actions.” Id.
at 825. This Court rejected the Tenth Circuit’s analysis,
holding that an opinion “decided after the shooting at issue, is of no use in the clearly established inquiry.” City
of Tahlequah, 142 S. Ct. at 12.
So too in Kisela v. Hughes. There the Ninth Circuit
concluded that actions in 2010 violated clearly established law even though it concluded the “most analogous”
decision was not decided until 2011. Hughes v. Kisela,
862 F.3d 775, 783 & n.2 (9th Cir. 2017) (discussing Glenn
v. Washington County, 673 F.3d 864, 864 (9th Cir. 2011),
as “illustrative” of clearly established law). Even then,
the court acknowledged, the relevant decision was “illustrative,” not “indicative of the clearly established law in
2010.” Id. at 783 n.2. This Court again reversed, noting
12
that “[t]he panel failed to explain the difference between
‘illustrative’ and ‘indicative’ precedent, and none is apparent.” Kisela, 138 S. Ct. at 1154. Even “illustrative”
precedent is “‘of no use in the clearly established inquiry.’” Id. (quoting Brosseau, 543 U.S. at 200 n.4).
Here, the Fifth Circuit’s error goes well beyond the
Tenth or Ninth Circuits’ mistakes. The Tenth Circuit in
City of Tahlequah held the relevant decision merely
“bolstered” the “conclusion” that a different case clearly
established the law. See City of Tahlequah, 981 F.3d
at 826. In Kisela, the Ninth Circuit considered the relevant decision “illustrative” of a trend in caselaw. See
Kisela, 862 F.3d at 783 & n.2. But here, the Fifth Circuit
identified Delaughter not merely to bolster or illustrate,
but as the “one particular decision” clearly establishing
the relevant right. Pet. App. 12a. Kisela and City of
Tahlequah foreclose the Fifth Circuit’s approach.
b. The “codification” justification also fails on its
own terms. The panel majority emphasized that a
Delaughter footnote states that the Fifth Circuit “ha[d]
previously suggested that a non-medical reason for delay
in treatment constitutes deliberate indifference, and several of our sister circuits ha[d] held so explicitly.” Pet.
App. 13a n.6 (quoting Delaughter, 909 F.3d at 138 n.7).
For support, Delaughter cited an unpublished decision of
the Fifth Circuit, two out-of-circuit unpublished decisions, and one out-of-circuit published decision. Pet. App.
13a-14a (citing Thibodeaux v. Thomas, 548 F. App’x 174,
175 (5th Cir. 2013) (per curiam); Reed v. Cameron, 380
F. App’x 160, 162 (3d Cir. 2010) (per curiam); Blackmore
v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004);
Clinkscales v. Pamlico Corr. Facility Med. Dep’t,
No. 00-6798, 2000 WL 1726592, at *2 (4th Cir. Nov. 21,
13
2000) (per curiam) (unpublished)). Yet “suggest[ions]”
do not clearly establish law for two reasons.
First, this Court has repeatedly held that the right
must be so clearly defined as to be “beyond debate.” E.g.,
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). This means
that the qualified immunity “inquiry ‘must be undertaken in light of the specific context of the case, not as a
broad general proposition.’” Brosseau, 543 U.S. at 198
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Yet
the panel cited the Delaughter footnote cases only for the
broad general proposition that a “nonmedical reason for
delay in treatment constitutes deliberate indifference.”
See Pet. App. 13a-14a. The Panel cited Delaughter, and
no other case, for specific facts and context. See id. Without those facts—which were published after the time of
the relevant conduct—the constitutional question was
not “beyond debate.”
Second, the Delaughter authorities did not put Petitioners on notice of anything. The Fifth Circuit’s
Thibodeaux decision states on its face that it “is not precedent.” 548 F. App’x at 174 n.*. The unpublished decisions of the Third and Fourth Circuits also state, respectively, that they are “not precedential” and “not binding
precedent.” 3 A reasonable officer would not read such
The opinions published by the courts of appeals on their websites bear these disclaimers. See Reed v. Cameron, No. 09-1804, at 1
(3d Cir. May 17, 2010) (per curiam), http://www2.ca3.uscourts.gov/
opinarch/091804np.pdf; Clinkscales v. Pamlico Corr. Facility Med.
Dep’t, No. 00-6798, at 1 (4th Cir. Nov. 21, 2000) (per curiam), https://
www.ca4.uscourts.gov/opinions/006798.U.pdf. The versions published by West state that they are unpublished. Reed, 380 F. App’x
160; Clinkscales, 2000 WL 1726592, at *1.
3
14
cases for clearly established law when they explicitly
warn readers that they do not set law. 4
Even if a reasonable officer looked past the disclaimers atop unpublished decisions, it remains doubtful that
a reasonable officer would even access such decisions.
While these cases appear on the courts of appeals’ websites, the court’s decision to not publish a case is, by its
name, a choice to limit its circulation to the public. “It
means that the opinion is not mailed (or otherwise transmitted) to West Publishing Company or any other legal
publisher with the intention that it be printed in a book
commercially available.” Judge Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. APP. PRAC. & PROCESS 219, 220 (1999); see also 1st Cir. Loc. R. 36.0(a).
Consistent with these realities, numerous courts of appeals (including the Fifth Circuit) have held that unpublished decisions cannot clearly establish the law for
purposes of qualified immunity. See, e.g., Bell v. City of
Southfield, 37 F.4th 362, 368 (6th Cir. 2022); Williams v.
Hansen, 5 F.4th 1129, 1132 (10th Cir. 2021); Garcia v.
Blevins, 957 F.3d 596, 602 (5th Cir. 2020), cert. denied,
141 S. Ct. 1058 (2021).
The final case cited by Delaughter, a precedential decision of the Sixth Circuit, also could not put Petitioners
on notice of the law. See Delaughter, 909 F.3d at 138 n.7
(citing Blackmore, 390 F.3d at 899). Although this Court
has suggested that a robust “consensus of cases of persuasive authority” might under certain circumstances
clearly establish law for this purpose, Wilson v. Layne,
526 U.S. 603, 617 (1999), it has since recognized that the
Courts of appeals’ local rules reinforce the conclusion that reasonable officers would not think these opinions “in any way interest”
them: if they did, the opinions “should be published.” E.g., 5th Cir.
R. 47.5.1.
4
15
question remains open, see, e.g., Wesby, 138 S. Ct. at 591
n.8. And no circuit has held that a single decision of one
sister circuit can do so. See, e.g., Feminist Majority
Found. v. Hurley, 911 F.3d 674, 706 (4th Cir. 2018) (three
circuits insufficient); Lincoln v. Turner, 874 F.3d 833,
850 (5th Cir. 2017) (two circuits insufficient). A reasonable officer is not expected to have knowledge of every
published decision of every court of appeals, or to conform his conduct to the most expansive interpretation of
the law appearing in the Federal Reporter.
Even if Delaughter’s cited authorities bore the requisite factual similarity to Petitioners’ alleged conduct,
they were incapable of giving Petitioners fair notice.
3. The Fifth Circuit also erred in relying on subsequent authority where the plaintiff alleges “ongoing . . . harm” that defendants could have stopped after
Delaughter was decided. Pet. App. 12a n.6. That is so for
three reasons.
First, Smith has never argued that Delaughter triggered an obligation for Dr. Talley to take action and
“stop[] withholding” Smith’s surgery. Id. Instead, the
only live claim in his complaint seeks damages based on
Dr. Talley’s pre-Delaughter refusals. It was Smith’s burden to plead a route around qualified immunity. See alKidd, 563 U.S. at 735. And it was reversible error for the
Fifth Circuit to hold that he met that burden based on a
theory he never asserted. See Wood v. Moss, 572 U.S.
744, 757-58 (2014) (explaining the complaint must state
the violation on its face).
Second, even if he had included that allegation in his
complaint, by turning the focus to Dr. Talley’s inaction
after the Fifth Circuit decided Delaughter, the panel majority implies that it may be an Eighth Amendment violation to not revisit and reverse previous decisions that
16
would have been handled differently under the new legal
rule. See Pet. App. 12a n.6. This is irreconcilable with the
notion that “deliberate indifference” is a standard that
“describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. “It is obduracy and
wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Whitley v. Albers, 475 U.S.
312, 319 (1986). Dr. Talley’s failure to sua sponte review
her previous medical decisions for compliance with the
Fifth Circuit’s new case—if that is even deemed a failure
given that health conditions change—is at most negligence or inadvertence. See Estelle, 429 U.S. at 106. Smith
cannot prove an Eighth Amendment claim on Petitioners’ post-Delaughter conduct alone. See Farmer, 511
U.S. at 835.
Third, the panel majority created a mismatch by relying on post-Delaughter facts for its analysis of the second prong of qualified immunity and different, preDelaughter facts for the first prong. There is supposed
to be symmetry: that is, the two-pronged qualified immunity analysis begins with a determination of whether
the officers “violated a federal statutory or constitutional
right.” Wesby, 138 S. Ct. at 589. It concludes by considering whether “the unlawfulness of their conduct was
‘clearly established at the time.’” Id. (quoting Reichle,
566 U.S. at 664) (emphasis added). Instead, the Fifth Circuit relied on pre-Delaughter conduct to satisfy the first
prong and post-Delaughter conduct for the second.
Specifically, on the first prong, the Fifth Circuit held
that “[t]wo statements by [Dr.] Talley stood out” as evidence of a constitutional violation. Pet. App. 8a. Both
statements preceded Delaughter. The Fifth Circuit and
district court “found a genuine dispute of fact as to
17
whether [Dr.] Talley’s categorical refusal of Smith’s
pleas for SCS-replacement surgery violated the Eighth
Amendment.” Id. (emphasis added). Those “refusals” all
precede Delaughter, and the amended complaint does
not identify a single post-Delaughter instance of Petitioners rejecting surgery.
On the second prong, the Fifth Circuit held that the
continued treatment of Smith’s condition through medication—or, as the Fifth Circuit framed it, Dr. Talley’s
failure to “stop[] withholding” the surgery after
Delaughter—allegedly violated clearly established law.
Pet. App. 13a n.6. There is no allegation that Dr. Talley
rejected a surgery referral post-Delaughter. And the
Fifth Circuit found that omission itself violated the Constitution. But, if failure to order an invasive surgery
based on a two-year old referral constitutes deliberate
indifference, but see Estelle, 429 U.S. at 106, there are
going to be a lot more deliberate-indifference claims being litigated in federal court.
In sum, the Fifth Circuit in effect found that Smith
had overcome qualified immunity because the cases that
preceded
Delaughter
adequately
foreshadowed
Delaughter’s ruling. Such reasoning is squarely foreclosed by this Court’s qualified-immunity jurisprudence.
E.g., Brosseau, 543 U.S. at 200 & n.4.
C. The Fifth Circuit violated this Court’s
precedent by stating the right at issue at an
impermissibly high level of generality.
Even if Delaughter could enter the qualified immunity analysis, it is insufficiently factually analogous to
Smith’s claim to satisfy this Court’s test for clearly established law. “The dispositive question is ‘whether the
violative nature of particular conduct is clearly established.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per
18
curiam) (quoting al-Kidd, 563 U.S. at 742)). Courts
should not “define clearly established law at a high level
of generality.” City of Escondido, 139 S. Ct. at 503. Instead, “[t]he rule’s contours must be so well defined that
it is ‘clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’” Wesby, 138 S.
Ct. at 590 (quoting Saucier, 533 U.S. at 202).
1. Delaughter does not clearly establish the right
underlying Smith’s claim. The panel majority read
Delaughter to give “reasonable warning that any policy
of categorically denying SCS replacements without regard to an inmate’s serious medical need constitutes
Eighth Amendment deliberate indifference.” Pet. App.
12a. But as Judge Duncan explained, “Delaughter is
quite different from this case” and did not establish the
wrongness of Petitioners’ alleged blanket policy. Pet.
App. 19a-20a.
Delaughter held that the Eighth Amendment prevents officers from delaying necessary medical treatment for financial reasons. 909 F.3d at 138-39. The
Delaughter plaintiff’s “claim ar[ose] from the fact he
ha[d] yet to receive a prescribed course of treatment; it
d[id] not arise from his subjective opinion of the sufficiency of his medical treatment that is either contradicted or unsupported by medical professionals.” Id. at
138. By contrast, Smith’s claim springs from Dr. Talley’s
judgment that chronic pain can be treated without the
surgical replacement of SCS devices. As Judge Duncan
explained, “[t]he policy prefers one treatment for chronic
pain (pain medications) over another” (SCS-replacement
surgery). Pet. App. 20a-21a. Unlike Delaughter, “[n]o evidence suggests the policy against SCS devices was
driven by cost.” Pet. App. 20a.
19
Whereas Delaughter observed that “[n]o party
point[ed] to evidence that any medical professional ha[d]
disagreed with” the plaintiff’s need for surgery, 909 F.3d
at 138, Smith repeatedly points to emails containing such
disagreement. The same emails that Smith uses to support his claim reflect Dr. Talley’s judgment that multiple
treatments exist to treat pain and that patients who had
a SCS device implanted before their incarceration do not
receive special treatment. And as already discussed,
emails submitted by Smith show that Dr. Talley actually
directed treatment for Smith’s pain through other
means. See supra part I.A.2. Further distinguishing
Delaughter, Dr. Talley ordered multiple courses of pain
treatment for Smith while the Delaughter defendant ordered nothing for the plaintiff. See Pet. App. 21a. This
“isn’t the money-over-medicine calculus Delaughter
turned on.” Id.
2. This Court has repeatedly summarily reversed
where lower courts have wrongly held that factually dissimilar cases gave defendants fair notice. See, e.g., Rivas-Villegas, 142 S. Ct. at 8-9. It should do so again.
For example, in Taylor, this Court summarily reversed the denial of qualified immunity in another
Eighth Amendment challenge to prison policies. The
Third Circuit held that two of its cases clearly established a right to the proper implementation of adequate
suicide-prevention protocols. 575 U.S. at 826-27. This
Court examined both cases, concluding that neither case
“clearly established the right at issue.” Id. at 826. One
case “said that if officials ‘know or should know of the
particular vulnerability to suicide of an inmate,’ they
have an obligation ‘not to act with reckless indifference
to that vulnerability.’” Id. (quoting Colburn v. Upper
Darby Township, 838 F.2d 663, 669 (3d Cir. 1988)). That
20
case was sufficiently distinguishable from the Taylor
plaintiff’s claim because it “did not say . . . that detention
facilities must implement procedures to identify such
vulnerable inmates, let alone specify what procedures
would suffice.” Id. at 827.
The second case also failed to put the Taylor defendants on notice of a constitutional right to the implementation of suicide-prevention protocols because it only “reiterated that officials who know of an inmate’s particular
vulnerability to suicide must not be recklessly indifferent
to that vulnerability.” Id. (citing Colburn v. Upper Darby
Township, 946 F.2d 1017, 1023 (3d Cir. 1991)). That case
“did not identify any minimum screening procedures or
prevention protocols that facilities must use.” Id.
Here, as in Taylor, Delaughter failed to give Petitioners fair notice that the Eighth Amendment bars blanket
policies against the surgical replacement of SCS devices.
Delaughter held that officers may not delay necessary
surgeries for financial reasons, but it did not
“place[] . . . beyond debate” the question whether a
prison may maintain blanket policies against particular
treatments for other reasons. Taylor, 575 U.S. at 825
(quoting al-Kidd, 563 U.S. at 741). And here, as in Taylor, the Court should summarily reverse the Fifth Circuit’s decision to allow this case to proceed.
II. In the Alternative, the Court Should Grant Plenary
Review.
As explained above, the Fifth Circuit’s reliance on
Delaughter directly contravenes this Court’s qualified
immunity jurisprudence, and summary reversal is warranted. In the alternative, the questions presented are
worthy of this Court’s plenary review. The issues of
whether post-conduct authority may enter the clearly established inquiry and the appropriate level of generality
21
has caused serial errors in the courts of appeals. Further, issues of qualified immunity are important to society as a whole, and this case is an excellent vehicle.
A. The Fifth Circuit is not alone in denying
immunity based on cases postdating a
defendant’s acts.
If this Court does not summarily reverse, it should
grant plenary review because a growing number of circuits have adopted various exceptions to this Court’s rule
that authority postdating the defendant’s acts cannot
overcome qualified immunity. Specifically, the Second,
Sixth, Ninth, and Tenth Circuits have all relied on cases
published after the defendant’s conduct and justified
their citations by claiming those cases discuss pre-existing law. The First Circuit has approved of the same rule
in dicta. At the same time, different recent decisions in
the Ninth and Tenth Circuits have agreed with Petitioners that subsequent authority does not enter the clearly
established inquiry even if such cases describe pre-existing law.
1. The Second Circuit has stated that it will “consider[] cases published after the conduct at issue that do
not establish a right in the first instance, but rather address whether a right was clearly established by case authority before the time of such conduct.” Jones v. Treubig, 963 F.3d 214, 227 (2d Cir. 2020) (emphasis omitted).
Jones held that two cases post-dating the defendant’s allegedly unlawful act in 2015 had “precedential force” on
the clearly established prong because they concluded
that the right at issue was clearly established for conduct
in 2008 and 2013, respectively. Id.
2. The Sixth Circuit, Ouza v. City of Dearborn
Heights, 969 F.3d 265, 282 (6th Cir. 2020), quoted a case
decided after the defendant’s allegedly unlawful conduct
22
that said a point of law was “well-settled.” Id. (quoting
Wesley v. Campbell, 779 F.3d 421, 435 (6th Cir. 2015)).
Acknowledging that Wesley was “decided after [the]
Plaintiff’s false arrest,” the panel majority nonetheless
claimed it could rely on the case because it “show[ed]
that later panels” of the court had “also interpreted our
earlier case law” similarly. Id. at 282 n.6. Judge Griffin’s
partial dissent concluded that because the court “issued
Wesley after the events occurred here, . . . it is of no
value to the clearly established calculus.” Id. at 291 n.3
(Griffin, J., concurring in part and dissenting in part).
3. Although these Circuits have adopted the wrong
rule, they have at least been consistent. The Ninth Circuit does not even have that advantage. In 2018, the
Ninth Circuit refused to consider a case postdating the
defendant’s conduct even while hinting that case might
“reflect clearly established case law that pre-date[d]” the
defendant’s conduct. Reese v. County of Sacramento, 888
F.3d 1030, 1039 (9th Cir. 2018). But in the last three
years, the Ninth Circuit has committed the same error
perpetrated by the Fifth Circuit at least three times.
Sampson v. County of Los Angeles, 974 F.3d 1012, 1020
(9th Cir. 2020), held that a 2019 case, Capp v. County of
San Diego, 940 F.3d 1046, 1054 (9th Cir. 2019), clearly
established the right at issue in a case involving 2015 conduct. The Court explained: “Although Capp was decided
in 2019, it held that the right at issue was clearly established by August 2015,” several months before “the relevant date here.” Sampson, 974 F.3d at 1020.
Judge Hurwitz dissented in part. He acknowledged
that “[a]s a matter of pure logic, because Capp found the
asserted constitutional right clearly established at the
time of the official’s actions in that case . . . it ought to
mean that the same right was clearly established several
23
months later, when the allegedly [unlawful] conduct in
this case occurred.” Id. at 1027 (Hurwitz, J., concurring
in part and dissenting in part). But he concluded that
Kisela precluded that inference. Id. at 1027-28. “The
‘clearly established’ inquiry focuses on the judicial opinions extant at the time of the conduct at issue, not on how
subsequent cases characterize pre-existing law.” Id. at
1028. “Decided years after the relevant conduct here,
Capp is of no use.” Id.
Similarly, the qualified immunity analysis in Garcia
v. McCann, 833 F. App’x 69, 71 (9th Cir. 2020), determined that the relevant issue “ha[d] been well-settled
law in this circuit for two decades” because a case decided two years earlier stated “that existing Ninth Circuit precedent” had put an issue “beyond debate.” Id.
(quoting Demaree v. Pederson, 887 F.3d 870, 883 (9th
Cir. 2018) (per curiam)). Judge Collins dissented in part,
calling “the majority’s reliance on Demaree . . . plainly
improper[] because that decision postdates the events in
this case.” Id. at 76 (Collins, J., concurring in part and
dissenting in part). “To the extent that the majority apparently thinks that it can cite Demaree for its explanation of what the earlier law was, that too is wrong: the
Supreme Court reprimanded us for that as well in
Kisela.” Id.
And the Ninth Circuit has also held that courts may
rely on subsequent authority if the cited case concerns
facts from the same time frame as the plaintiff ’s case.
Tan Lam v. City of Los Banos, 976 F.3d 986, 1001-02 (9th
Cir. 2020), relied on that justification for its citation of
Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir.
2017). While admitting “Zion was decided after the
shooting at issue here,” the Ninth Circuit held it could
“still look to Zion” because the case “involve[d]
24
analogous conduct that occurred around the same time
as the underlying incident in the matter before us.” Tan
Lam, 976 F.3d at 1001. Judge Bennett’s dissent disagreed, citing Kisela and explaining that Zion was “of no
use . . . because it was decided after the events here occurred.” Id. at 1012 n.6 (Bennett, J., dissenting).
4. The Tenth Circuit’s case law is similarly confused.
In City of Tahlequah, this Court rejected the Tenth Circuit’s assertion that authority postdating conduct may
bear on the qualified-immunity inquiry if it discusses authority preceding the conduct. See supra part I.B.2.a.
Nevertheless, in the intervening years, the Tenth Circuit
has still held twice that “a case decided after the incident
underlying a § 1983 action can state clearly established
law when that case ruled that the relevant law was
clearly established as of an earlier date preceding the
events in the later § 1983 action.” Paugh v. Uintah
County, 47 F.4th 1139, 1168 n.28 (10th Cir. 2022) (quoting Wilkins v. City of Tulsa, 33 F.4th 1265, 1276 n.8 (10th
Cir. 2022)). Paugh’s qualified-immunity analysis cited a
case that the panel admitted was decided four years after
the underlying facts occurred “because it relied on”
cases “which were decided before” the allegedly illegal
conduct. Id. Similarly, Wilkins, upon which Paugh relied, cited two post-conduct cases that “reenforce[d] that
the law was clearly established” at the relevant time. 33
F.4th at 1276. The court explained that “[a]lthough these
cases were decided after [the relevant time], both recognized the law was clearly established before that date.”
Id. at 1276 n.8.
Against Paugh and Wilkins, the Tenth Circuit correctly rejected the same justification in Perry v. Durborow, 892 F.3d 1116, 1124 (10th Cir. 2018). Perry, which
arose out of 2013 conduct, criticized the district court’s
25
citation of a 2016 case that stated a point of law “ha[d]
been clearly established since 2007.” Id. (citing Keith v.
Koerner, 843 F.3d 833, 850 (10th Cir. 2016)). The Perry
court held that “the district court should have looked
to . . . the cases upon which [the 2016 case] relied in
reaching that conclusion, not to [the 2016 case]’s ‘general
statements of the law.’” Id. (quoting White v. Pauly, 580
U.S. 73, 79 (2017) (per curiam)).
5. Finally, two other circuits have suggested that
they will join this erroneous trend. Specifically, the First
Circuit recently stated in dicta that “a plaintiff may rely
on cases published after the date of his incident where
the cases reiterate or summarize clearly established law
at the time of the plaintiff ’s incident.” Lachance v. Town
of Charlton, 990 F.3d 14, 27 (1st Cir. 2021). And a concurring opinion filed in Thomas v. Tice, 948 F.3d 133, 148
(3d Cir. 2020) (Greenaway, J., concurring in part and dissenting in part), concluded that a case postdating the relevant conduct “demonstrate[d]” that the law was clearly
established because “it relies on an array of cases decided well before the instant case.” Id. That five circuits
have made this error, and two indicated that they want
to do so, is strong evidence that the Court should grant
review and reaffirm that cases decided after the conduct
at issue “are of no use in the clearly established inquiry.”
Brosseau, 543 U.S. at 200 & n.4
B. The questions presented are important, and
this case is an excellent vehicle.
The questions presented merit review because they
recur with frequency, as shown by the number of courts
of appeals that have confronted them. See supra part
II.A. Because cases involving qualified immunity are legally complex and often take years to litigate (as here),
courts are often presented with citations to cases
26
postdating the defendant’s acts. And the cited decisions
reflect confusion over the status of such authorities under this Court’s precedents. 5
Further, this Court regularly finds it necessary to
summarily “revers[e] federal courts in qualified immunity cases.” White, 580 U.S. at 79. Correcting errant denials of qualified immunity “is important to ‘society as a
whole,’” id. (quoting City and County of San Francisco
v. Sheehan, 575 U.S. 600, 611 n.3 (2015)), because it protects the public interest in a workforce that can do its job
free of the fear that objectively good-faith efforts to apply state law might later prove to be unconstitutional.
Moreover, because the immunity from suit is “irretrievably lost” once officers have stood trial, Plumhoff v.
Rickard, 572 U.S. 765, 772 (2014), this Court should exercise its supervisory powers to grant qualified immunity at the summary-judgment stage.
This case is an excellent vehicle to clarify the status
of cases postdating a defendant’s acts in the clearly established inquiry. This Court’s previous cases addressing this issue have focused on other issues, see, e.g.,
Kisela, 138 S. Ct. at 1153; Brosseau, 543 U.S. at 200, but
all members of the panel majority acknowledged that the
timing question predominates in this case, Pet. App. 12a
n.6, 21a-22a.
Moreover, the timing question is cleanly presented
because the Fifth Circuit identified Delaughter as the
“one particular decision” clearly establishing the right at
issue. Pet. App. 12a. In other cases, the materiality of
Although these cases nominally address only the first question
presented, that is illusory. It is not uncommon for courts to avoid
the timing issue by raising the level of generality at which the analysis is performed—as happened here in the panel majority’s cursory
discussion of Miles and Easter. Supra part I.B.1.
5
27
this error might be unclear if the lower court relied on a
combination of authorities predating and postdating the
acts at issue. See, e.g., Garcia, 833 F. App’x at 71. City of
Tahlequah falls within this category. See City of
Tahlequah, 981 F.3d at 826 (explaining that the lower
court held its earlier decision only “bolstered” the “conclusion” that a different case clearly established the law).
But by anchoring its analysis in Delaughter alone, such
confounding factors are absent from the Fifth Circuit’s
opinion. As a result, this case is an excellent vehicle to
resolve an issue that has percolated enough to generate
split panel-decisions in the Fifth, Sixth, and Ninth Circuits. See Pet. App. 17a; Garcia, 833 F. App’x at 69;
Sampson, 974 F.3d at 1012; Ouza, 969 F.3d at 265. This
percolation will aid this Court’s consideration of the
questions presented.
C O NC LU SIO N
The petition for a writ of certiorari should be granted.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
JUDD E. STONE II
Solicitor General
Counsel of Record
JUSTIN W. MANCHESTER
Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Judd.Stone@oag.texas.gov
(512) 936-1700
FEBRUARY 2023
APPENDIX
TABL E OF C O NTENTS
Appendix A — Opinion, Smith v. Linthicum et al.,
No. 21-20232 (5th Cir. Oct. 12, 2022) ...............................1a
Appendix B — Opinion on Petition for Rehearing,
Smith v. Linthicum et al.,
No. 21-20232 (5th Cir. Nov. 10, 2022) ............................ 23a
Appendix C — Order on Motions for Summary
Judgment, Smith v. Linthicum et al.,
No. 4:19-cv-0787 (S.D. Tex. March 30, 2021) .............. 26a
Appendix D – U.S. Const. amend. VIII ............................. 45a
Appendix E – 42 U.S.C. § 1983 ........................................... 46a
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of
Appeals Fifth Circuit
FILED
October 12, 2022
Lyle W. Cayce
Clerk
No. 21-20232
ROBIN WAYNE SMITH,
Plaintiff—Appellee,
versus
LANNETTE LINTHICUM, DIRECTOR OF HEALTH
SERVICES DIVISION, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; DENISE DESHIELDS, EXECUTIVE
MEDICAL DIRECTOR, TEXAS TECH UNIVERSITY; SHERI
J. TALLEY, MEDICAL DIRECTOR TEXAS DEPARTMENT
OF CRIMINAL JUSTICE,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-787
Before KING, DUNCAN, and ENGELHARDT, Circuit
Judges.
2a
KURT D. ENGELHARDT, Circuit Judge:*
This Eighth Amendment § 1983 case pits a Texas
prisoner with a rare medical condition causing severe
pain against state medical officials whose collective
refusal to approve a pain-alleviating procedure allegedly
constitutes cruel and unusual punishment. The
defendants unsuccessfully invoked qualified immunity in
failed motions for summary judgment. On this
interlocutory appeal, they reassert their entitlement to
qualified immunity. Jurisdictionally cabined by the
procedural posture of this case, we AFFIRM and leave
what appear to be difficult fact questions to the jury.
I
The plaintiff Robin Smith is a Texas prisoner and
Marine Corps veteran who suffers from a rare condition
called loin pain hematuria syndrome (LPHS). Smith’s
LPHS afflicts him with a “constant [and] sharp stabbing
pain in his left loin, abdomen, and groin area that is
exacerbated by almost all everyday physical activities,
including walking.” In 2002, Smith had a spinal cord
stimulator (SCS)1 implanted to ease his pain. In 2003 and
2005, VA physicians adjusted Smith’s SCS to improve its
functionality. In 2011, the VA approved Smith for a fullPursuant 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.
*
“A spinal cord stimulator is an implanted device that sends low
levels of electricity directly into the spinal cord to relieve pain.”
EELAN SIVANESAN, M.D., JOHNS HOPKINS MED., SPINAL CORD
STIMULATOR, https://www.hopkinsmedicine.org/health/treatmenttests-and-therapies/treating-painwith-spinal-cord-stimulators.
1
3a
scale replacement of his by-then-malfunctioning SCS.
Before the procedure could take place, Smith received a
35-year prison sentence without possibility of parole. He
is now slated to be a Texas prison inmate until 2048.
Smith’s altered legal situation did not alter his
unfortunate medical situation. In prison as in society,
Smith’s LPHS continued to ail him, and his suboptimal
SCS continued not to help much. Beginning shortly after
his commitment to Texas Department of Criminal
Justice (TDCJ) custody and repeatedly for the next
several years, Smith complained of severe pain and
sought the SCS replacement the VA had prescribed him
before his legal troubles interfered. On two occasions
most salient here—in August 2016 and October 2016—
defendant Dr. Sheri Talley2 categorically rebuffed
referrals Smith received from third-party medical
professionals for SCS repair or replacement. In response
to a first doctor’s referral, Talley stated flatly:
We don’t service, place, replace batteries, or
remove any of those stimulators. It will still be
there when his sentence is over. We don’t even
have a specialist on contract, such as a pain
specialist that he can be sent to anyway. He’ll be
treated for his chronic pain the same way all of
our patients are treated.
Talley’s response to a second physician’s referral was
equally categorical:
Dr. Talley is the Southern Regional Director of the Texas Tech
University Health Sciences Center and the state official most
directly involved in the TDCJ’s refusal to grant Smith’s ongoing
request for SCS repair or replacement.
2
4a
Care, upkeep, removal of pain stimulators will
not occur while offender is in TDCJ. Batteries
will not be replaced. Please manage pain
according to [Disease Management Guidelines].
For the next few years, prison medical staff did just
that, prescribing a series of “conservative” palliatives
like ibuprofen and work restrictions in lieu of the SCS
replacement that multiple doctors agreed Smith needed.
In “uncontrolled” pain and with little hope of receiving a
working SCS before his projected release in 2048, Smith
filed a pro se § 1983 complaint against—as relevant on
this appeal—Talley and two higher-ups: Dr. Denise
Deshields, the Executive Medical Director of the Texas
Tech University Health Sciences Center (TTUHSC),
and Dr. Lannette Linthicum, the Director of the TDCJ
Health Sciences Division. Smith claims that Talley’s
categorical defiance of his requests for surgical repair or
replacement of his SCS in the face of his deteriorating
medical condition, the lengthy duration of his sentence,
and the counter-recommendations of multiple other
physicians constitutes deliberate indifference to his
serious medical needs in violation of the Eighth
Amendment. He also sues Deshields and Linthicum on a
supervisory liability theory. For relief, he seeks damages
from all three defendants and an injunction ordering the
defendants to allow his transfer to a VA hospital for
“surgery to replace his [SCS].”
In the district court, the defendants filed initial
motions to dismiss that were granted in part. After
answering Smith’s remaining claims, the defendants
moved for summary judgment on qualified immunity
grounds. The district court denied their motions and
withheld qualified immunity, finding triable fact issues
5a
as to “whether Talley acted in deliberate indifference to
[Smith’s] medical needs and whether the Defendants
created and implemented a categorical policy not to treat
medical issues regarding a SCS device that is
malfunctioning regardless of the duration of a prisonerpatient’s incarceration, in deliberate indifference to an
inmate’s serious medical needs.” On this interlocutory
appeal, the defendants reassert their entitlement to
qualified immunity and to summary judgment on Smith’s
claim for injunctive relief.
Hemmed in by the interlocutory nature of the
defendants’ appeal, we agree with the district court on
the lone legal question we have jurisdiction to address.
II
A district court’s denial of qualified immunity at the
summary judgment stage is subject to “circumscribed”
de novo review. Kokesh v. Curlee, 14 F.4th 382, 391 (5th
Cir. 2021). “In a typical summary-judgment case, we
review the district court’s analysis de novo, asking the
same question that the district court did—whether the
movant has shown ‘that there is no genuine dispute as to
any material fact and the movant is entitled to judgment
as a matter of law.’ ” Id. (quoting FED. R. CIV. P. 56(a)).
By contrast, in reviewing a denial of qualified immunity,
we “accept the district court’s determination that there
are genuine fact disputes” and “ask only ‘whether the
factual disputes that the district court identified are
material to the application of qualified immunity.’ ” Id.
(first citing Melton v. Phillips, 875 F.3d 256, 261 (5th Cir.
2017) (en banc); then quoting Samples v. Vadzemnieks,
900 F.3d 655, 660 (5th Cir. 2018)). Accordingly, when a
district court identifies disputes of fact it deems
sufficient to preclude qualified immunity, this court
6a
assesses only whether the resolution of such facts in
either party’s favor would affect the defendants’
entitlement to qualified immunity. Cf. Hamilton v. Segue
Software Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per
curiam) (detailing “materiality” standard) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1996)). We review questions of law in this subset of
qualified immunity cases, not disputed questions of fact.
Materiality, not genuineness. In fact, “[w]e lack
jurisdiction to decide whether the fact disputes the
district court identified are genuine.” Sims v. Griffin, 35
F.4th 945, 949 (5th Cir. 2022) (some emphasis added
some emphasis omitted).
So it goes here—despite some 500 pages of medical
records before us3 and the defendants’ consistent
contention that Smith’s suit is simply rooted in his
otherwise unactionable disagreement with the
alternative LPHS treatments Talley has directed for
him4—that the sole question we have power to address is
Much of these records pertain to Smith’s medical history
before his incarceration. In any event, though, the district court’s
findings control for present purposes. The district court found that
“[t]he medical records reflect that Smith has an existing, albeit
nonfunctional, SCS implanted in his body that was effective in
managing his pain when it was working correctly,” but that the
TDCJ’s refusal to grant him corrective surgery and the total failure
of the prison’s “conservative” pain treatments have “[left] him to
suffer with uncontrolled pain.” Smith v. Linthicum, 2021 WL
1742328, at *4, 6 (S.D. Tex. Mar. 30, 2021).
3
Without question, an inmate’s simple difference in opinion with
prison medical officials denying him his preferred course of
treatment is not actionable under the Eighth Amendment. We have
repeatedly held that “[t]here is no Eighth Amendment claim just
because an inmate believes that ‘medical personnel should have
attempted different diagnostic measures or alternative methods of
4
7a
an entirely legal one: whether a categorical policy
prohibiting any repair or replacement of an implanted
SCS constitutes deliberate indifference to the serious
medical needs of an inmate who requires such repair or
replacement. The district court found a genuine fact
dispute as to whether the defendants maintained such a
policy and whether Smith is such an inmate. Unable to
review those findings, we take them for granted in
tackling the legal question at issue and hold that a
prison’s refusal to repair or replace an inmate’s SCS in
service of a blanket policy to that effect violates the
clearly established law of this Circuit.
A
“Qualified immunity shields public 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.”
Kokesh, 14 F.4th at 391 (cleaned up). This lends itself to
a familiar two-part inquiry. “In the first [inquiry] we ask
whether the officer’s alleged conduct has violated a
federal right; in the second we ask whether the right in
question was ‘clearly established’ at the time of the
alleged violation, such that the officer was on notice of
the unlawfulness of his or her conduct.” Cole v. Carson,
935 F.3d 444, 451 (5th Cir. 2019) (en banc).
We address each question in turn and answer both
affirmatively.
treatment.’ ” Gibson v. Collier, 920 F.3d 212, 221 (5th Cir. 2019)
(quoting Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997)).
8a
1
In 1976, the Supreme Court held that “deliberate
indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976) (plurality opinion)).
This court has long since held that a prisoner “can
demonstrate an Eighth Amendment violation by
showing that a prison official ‘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.’ ” Easter v. Powell, 467 F.3d 459, 464 (5th Cir.
2006) (per curiam) (quoting Domino v. TDCJ, 239 F.3d
752, 756 (5th Cir. 2001)).
Here, the district court found a genuine dispute of
fact as to whether Talley’s categorical refusal of Smith’s
pleas for SCS surgery violated his Eighth Amendment
right to be free from the aforementioned forms of
medical mistreatment. Two statements by Talley stood
out in that regard. First, her statement that: “We don’t
service, place, replace batteries, or remove any of those
stimulators. It will still be there when his sentence is
over.” (Emphasis added.) And second, her statement on
a later occasion echoing that: “Care, upkeep, removal of
pain stimulators will not occur while [Smith] is in
TDCJ.” (Emphasis added.) The district court found that
a jury could reasonably construe these statements as
representative of “more than a mere disagreement about
treatment,” but rather of “a fixed, categorical refusal to
treat a painful medical condition.” Smith v. Linthicum,
2021 WL 1742328, at *6 (S.D. Tex. Mar. 30, 2021). This,
9a
the district court found, was further confirmed by the
fact that “several of [Smith’s] medical providers, who
performed his physical examinations and afforded him
with primary care at the unit level, recommended
referral to pain management and an evaluation
regarding his SCS, but Talley refused the requests . . .
each time.”
We have held that a “serious medical need is one for
which treatment has been recommended,” Gobert v.
Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006), and that
an inmate “can demonstrate an Eighth Amendment
violating by showing that a prison official ‘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 [his] serious
medical needs.’ ” Easter, 467 F.3d at 464 (quoting
Domino, 239 F.3d at 756). If proved at trial, Talley’s
wanton disregard for the “excruciating” pain Smith
claims he may well experience for another quartercentury without corrective SCS surgery would be
textbook deliberate indifference under this caselaw and,
accordingly, a constitutional violation. The district court
found a genuine dispute as to whether such deliberate
indifference is ongoing in this case, so a jury must
ultimately decide if that is in fact true.
Smith’s
claims
against
supervisory-official
defendants Deshields and Linthicum must likewise
proceed to trial because “[s]upervisory 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 the constitutional
violation.’ ” Thompkins v. Belt, 828 F.3d 298, 304 (5th
10a
Cir. 1987) (quoting Grandstaff v. City of Borger, 767 F.2d
161, 169, 170 (5th Cir. 1985)); see also Gates v. Tex. Dep’t
of Prot. & Regul. Servs., 537 F.3d 404, 435 (5th Cir. 2008)
(“A supervisory official may be held liable . . . if . . . he
implements unconstitutional policies that causally result
in the constitutional injury.”). As the district court
concluded, Talley’s statements that “We” don’t fix “any
of those stimulators” show that it may well be the case
here that Talley’s potentially unconstitutional refusals to
treat Smith were made in accordance with a policy
Smith’s supervisors enacted to that effect. See Smith,
2021 WL 1742328, at *6 (“Talley’s categorical denial of
the multiple requests from Smith’s medical providers for
referral or repair of that device creates triable issues of
fact as to whether [TTUHSC] or TDCJ instituted a
policy not to treat SCS issues regardless of the
circumstances and whether that policy was implemented
in deliberate indifference to an inmate like Smith’s
serious medical needs.”). The district court couldn’t rule
that possibility out on summary judgment and we can’t
second guess its determination in that regard, so again,
a jury must decide on a full airing of the facts at trial.
The defendants’ attempt to recharacterize the right
Smith is claiming as one to choose an inmate’s own
course of medical treatment among several viable
alternatives hides the ball and misapprehends the
narrow scope of our present review. Strange as it may
sound, the sole question before us now is not what is
actually happening in Smith’s prison—or how well the
prison’s “conservative” treatment measures are working
on Smith’s LPHS—but instead whether the genuine fact
disputes the district court identified on those matters
11a
have a material effect on the defendants’ entitlement to
qualified immunity. As explained, they do.
2
As for countless plaintiffs before him, the “clearly
established” inquiry is the more challenging one for
Smith. The Supreme Court has repeatedly reaffirmed
the importance of ensuring that state officials in
challenging jobs (and often, though not necessarily here,
making hasty decisions) be afforded every benefit of the
legal doubt before losing their qualified immunity from
§ 1983 suit. Thus, even when an official violates a
plaintiff’s legal rights, she is still entitled to qualified
immunity if her actions were “objectively reasonable
under the circumstances.” Collins v. Ainsworth, 382
F.3d 529, 537 (5th Cir. 2004). To further protect “officers
who reasonably but mistakenly commit a constitutional
violation,” objective reasonableness in this sense is no
tall order. See Bazan ex rel. Bazan v. Hidalgo County,
246 F.3d 481, 537 (5th Cir. 2004). This court deems a
defendant’s actions objectively reasonable “unless all
reasonable officials in the defendant’s circumstances
would have then known that the defendant’s conduct
violated the United States Constitution or the federal
statute as alleged by the plaintiff.” Thompson v. Upshur
County, 245 F.3d 447, 457 (5th Cir. 2001).
Additional guardrails abound. For one, we are “not to
define clearly established law at a high level of
generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
For another, we are instructed to undertake the clearly
established inquiry “in light of the specific context of the
case [and] not as a broad general proposition.” Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). Thus,
“[t]he dispositive question is ‘whether the violative
12a
nature of particular conduct is clearly established.”
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (alteration in
original) (quoting al-Kidd, 563 U.S. at 742). All the while,
it is the plaintiff’s burden to identify a favorable case that
defines the law with sufficient clarity. See, e.g., Vann v.
City of Southaven, 884 F.3d 307, 310 (5th Cir. 2018) (per
curiam).
Still, doing so is not impossible. We’ve held that “[t]he
law can be clearly established ‘despite notable factual
distinctions between the precedents relied on and the
cases then before the Court, so long as the prior
decisions gave reasonable warning that the conduct at
issue violated constitutional rights.’ ” Kinney v. Weaver,
367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope
v. Pelzer, 536 U.S. 730, 740 (2002)).
We hold here that one particular decision of our
court5 reiterated and strengthened existing law such that
the defendants had reasonable warning that any policy
of categorically denying SCS replacements without
regard to an inmate’s serious medical need constitutes
Eighth Amendment deliberate indifference: Delaughter
v. Woodall, 909 F.3d 130, 137–39 (5th Cir. 2018).6 There,
Although the Supreme Court has explicitly left open the
question of whether Circuit law alone can clearly establish the law
for qualified immunity purposes, see Rivas-Villegas v. Cortesluna,
142 S. Ct. 4, 7 (2021) (per curiam) (“assuming” the proposition that
“controlling Circuit precedent clearly establishes law for purposes
of § 1983”), we’ve established a prior practice of assigning our own
decisions such legal weight, see Sims, 35 F.4th at 952 (holding that
“our [i.e., the Fifth Circuit’s] decision in Easter clearly established
[the plaintiff’s] rights before the [defendants] allegedly violated
them”).
5
It is of course notable that Delaughter was decided more than
a year after Talley’s latest-recorded rejection of Smith’s requests
6
13a
we denied prison medical officials qualified immunity
from an inmate’s claim that an unjustified delay in a
surgery he needed was motivated not by medical
disagreement on the prison’s part but instead by
financially motivated deliberate indifference. See id. at
137–39. The prison officials in Delaughter delayed the
inmate plaintiff’s surgery because they didn’t want to
pay for it, not because they disagreed with the plaintiff
as to whether the surgery was medically necessary or
whether an alternative treatment was equally viable. See
id. That kind of delay for a reason other than genuine
medical judgment, the panel mused, “could under certain
circumstances evince a wanton disregard for a serious
medical need.” Id. at 138 (cleaned up). As the panel
further observed, the Fifth Circuit had “previously
suggested,” albeit in an unpublished case, “that a nonmedical reason for delay in treatment constitutes
deliberate indifference, and several of our sister circuits
for an SCS replacement. But we are nonetheless satisfied of its
capacity to give “reasonable warning” here for two reasons. First,
as we discuss below, because Delaughter codified legal
developments that were already long in motion when Talley
categorically denied Smith’s requests in 2016. See Delaughter, 909
F.3d at 138 n.7 (“We have previously suggested that a non-medical
reason for delay in treatment constitutes deliberate indifference,
and several of our sister circuits have held so explicitly.”). And,
second, because of the ongoing nature of the harm Smith claims in
this case; Talley could have stopped withholding Smith’s needed
medical procedure for nonmedical reasons in 2018—when this court
handed Delaughter down—but never chose to do so. This case is
accordingly a far cry from the typical § 1983 case (like, say, a
shooting, an excessively forceful takedown, an illegal search). The
defendants here received reasonable warning that their ongoing
treatment of the plaintiff might be unconstitutional but never
reconsidered the issue.
14a
[had] held so explicitly.” Id. at 138 n.7 (citing Thibodeaux
v. Thomas, 548 F. App’x 174, 175 (5th Cir. 2013) (per
curiam); Reed v. Cameron, 380 F. App’x 160, 162 (3d Cir.
2010) (per curiam); Blackmore v. Kalamazoo County,
390 F.3d 890, 899 (6th Cir. 2004); and Clinkscales v.
Pamlico Corr. Facility Med. Dep’t, 2000 WL 1726592, at
*2 (4th Cir. Nov. 21, 2000) (per curiam).
More significantly, Delaughter merely reiterated and
solidified what has long been the law in this circuit: that
a prison medical official’s decision to deprive an inmate
of a medically needed surgery like Smith’s forbidden
SCS replacement here must be the product of a genuine
and considered medical judgment, not a nonmedical
reason like a refusal to pay (as in Delaughter) or a
blanket and non–medically considered7 policy against the
procedure (as the district court found could genuinely be
the case here). In one such prior case, our circuit found
deliberate indifference when, for nonmedical reasons,
the prison official “failed to follow a prescribed course of
treatment.” Easter, 467 F.3d at 464. In another case,
though unpublished, we held that despite multiple x-rays
and provision of “various pain medications,” a prison’s
arguably incorrect treatment of a prisoner’s medical
need could constitute deliberate indifference where the
This fact is crucial. To be sure, we do not hold today that an
inmate has an Eighth Amendment claim any time a prison refuses
him medical treatment he would prefer to receive, previously received, or would be able to pursue if not incarcerated. We hold
merely that a prison must simply articulate some legitimately considered basis for its alternative medical opinion and treatment regime or for its non–medically indifferent policy against a certain
procedure an inmate may need. Talley’s puzzling (and blunt) failure
to do so here may make this case a one-off.
7
15a
fact issues remaining included the potentially nonmedical nature of the justifications for the lack of other
medical treatment. Miles v. Rich, 576 F. App'x 394, 396
(5th Cir. 2014) (per curiam).
If anything, Smith’s situation here could prove even
worse than the situation this court found
unconstitutional in Delaughter. Whereas Delaughter’s
claim arose from the fact that his medically required
procedure had merely been delayed for nonmedical
reasons, Smith’s claim here raises the possibility that he
is being deprived of any effective treatment whatsoever
for nonmedical reasons. Indeed, the district court here
found a triable issue of fact as to whether Smith’s “SCS
is no longer functioning and [the prison’s alternative]
medications have lost their effectiveness, [thereby]
leaving him to suffer with uncontrolled pain.” Smith,
2021 WL 1742328, at *4. As our review is cabined at this
stage to whether or not the genuine factual disputes
found by the district court are material as a matter of
law, we can go no farther than to say that, if these issues
of fact are resolved in Smith’s favor, they would have a
material impact on the Defendants’ qualified immunity
claim. Likewise, further discovery might support a
renewed motion based on qualified immunity.
III
The district court found that summary-judgment
evidence in this case raised genuine issues of fact
regarding whether a dire medical need of the plaintiff is
going uncorrected for no reason more than a prison
system’s blanket policy against allowing a surgery that
third-party physicians have recommended to address
such need. Without jurisdiction to consider the
genuineness of that fact dispute, we deem it legally
16a
material to the defendants’ ability to successfully invoke
their qualified immunity defense at the summary
judgment stage because such a categorical and non–
medically considered policy would indeed violate our
Circuit’s clearly established law on the Eighth
Amendment if proved at trial. This holding has no effect
on the defendants’ ability to reassert their qualified
immunity defense at trial, where a jury can determine
whether the facts of this case indeed demonstrate the
defendants’ implementation of an unconstitutional
policy.8 That question is not for this panel to decide on
interlocutory review.
The district court’s denial of the defendants’ motions
for summary judgment is accordingly AFFIRMED.
8
See Fifth Cir. Pattern Jury Instruction (Civ. Cases) 10.3.
17a
STUART KYLE DUNCAN, Circuit Judge, concurring in
part and dissenting in part:
Smith claims to suffer from a rare condition—loin
pain hematuria syndrome (“LPHS”)—that sometimes
causes him severe abdominal pain for no identified
physiological cause. He sued Texas prison officials under
the Eighth Amendment for refusing to repair or replace
his malfunctioning spinal cord stimulator (“SCS”), a
device implanted by the Veterans Administration to
alleviate Smith’s pain before Smith’s sentence began.
Finding material fact disputes, the district court denied
the officials qualified immunity. Those fact disputes
deprive us of jurisdiction to decide the merits of Smith’s
Eighth Amendment claim on interlocutory appeal. I
therefore concur in Part II.A.1 of the majority opinion,
with the qualifications noted below. But I respectfully
dissent from Part II.A.2 of the majority opinion, because
Smith fails to show the officials violated clearly
established law. I would therefore reverse the district
court’s judgment denying qualified immunity, except to
the extent that Smith is seeking injunctive relief.1
I.
The gist of Smith’s Eighth Amendment claim is that
the officials showed “deliberate indifference to [his]
Our precedents hold that qualified immunity does not bar
claims for injunctive relief. See Singleton v. Cannizzaro, 956 F.3d
773, 778 n.3 (5th Cir. 2020) (citing Chrissy F. by Medley v. Miss.
Dep’t of Pub. Welfare, 925 F.2d 844, 849 (5th Cir. 1991)); see also
Striz v. Collier, 2022 WL 1421834, at *1 (5th Cir. May 5, 2022)
(unpublished); Sinclair v. Fontenot, 216 F.3d 1080, 2000 WL 729367,
at *3 (5th Cir. 2000) (unpublished).
1
18a
serious medical needs” by enforcing a policy of excluding
SCS devices to treat chronic pain. See Estelle v. Gamble,
429 U.S. 97, 104 (1976). The district court found that fact
disputes prevented it from deciding that claim. It’s
important to specify what those fact disputes were—
especially because there’s no dispute that the prison
tried to treat Smith’s condition with various courses of
pain medication (including codeine, naproxen,
meloxicam, ibuprofen, tramadol, carbamazepine, and
nortripyline). The district court found some evidence,
however, that these medicines weren’t helping Smith and
that a working SCS was the only way of treating LPHS.
That may or may not be true. But if it is, Smith may have
a claim that the officials showed deliberate indifference
by “refus[ing] to treat” his LPHS with the only medically
effective treatment. See Easter v. Powell, 467 F.3d 459,
464 (5th Cir. 2006) (per curiam).
The majority decides only that and nothing more.
Importantly, it does not decide that the Eighth
Amendment requires prisons to let inmates “choose . . .
[their] own course of medical treatment among several
viable alternatives.” Ante at 9. The majority recognizes
that such a holding would fly in the face of settled law.
See ante at 6 n.4 (noting “[w]e have repeatedly held that
‘[t]here is no Eighth Amendment claim just because an
inmate believes that “medical personnel should have
attempted different diagnostic measures or alternative
methods of treatment” ’ ”) (quoting Gibson v. Collier, 920
F.3d 212, 221 (5th Cir. 2019)). To prove deliberate
indifference, Smith must show more than “a genuine
debate . . . within the medical community about the
necessity or efficacy of [SCS]” for treating LPHS.
Gibson, 920 F.3d at 221. He must show “universal
19a
acceptance” that a SCS is the only way to treat that rare
condition. Ibid.
Based on that understanding, I agree that the
genuine factual disputes identified by the district court
deprive us of jurisdiction to decide the merits of Smith’s
Eighth Amendment claim. See, e.g., Ramirez v.
Escajeda, 44 F.4th 287, 291–92 (5th Cir. 2022) (concluding
fact disputes precluded our jurisdiction to decide first
prong of qualified immunity). If Smith can prove that
claim at trial, he may be entitled to injunctive relief.2
II.
But the majority errs by concluding the officials
violated clearly established law. The majority relies on
“one particular decision of our court” to clearly establish
the unreasonableness of the officials’ conduct—
Delaughter v. Woodall, 909 F.3d 130 (5th Cir. 2018). Ante
at 11. Even assuming3 one circuit decision can clearly
The content of any such relief is another matter, however. At
oral argument, both parties represented that Smith’s SCS has been
removed. O.A. Rec. at 13:04–13:30; 22:38–23:02. Given that changed
state of affairs, I express no opinion on whether Smith—assuming
he proves his Eighth Amendment claim—should be granted an
injunction.
2
Both the Supreme Court and our precedents say this is an open
question. See, e.g., Ramirez, 44 F.4th at 293 & n.9 (“[T]he plaintiffs’
argument requires us to assume that Fifth Circuit precedent alone
can clearly establish the law for qualified immunity purposes,
something the Supreme Court has left open.”) (citing RivasVillegas v. Cortesluna, 142 S. Ct. 4, 7 (2021) (per curiam); Betts v.
Brennan, 22 F.4th 577, 584–85 n.6 (5th Cir. 2022); Crittindon v.
LeBlanc, 37 F.4th 177, 199 n.4 (5th Cir. 2022) (Oldham, J.,
dissenting)). I’m aware of no decision from our court that has settled
this issue.
3
20a
establish the law, Delaughter is quite different from this
case.
In Delaughter, a doctor determined a prisoner
required hip replacement and reconstructive surgery, a
diagnosis “no medical professional . . . disagreed with.”
909 F.3d at 138. Yet evidence suggested the surgery was
denied because the Department of Corrections
“refuse[d] to pay for [it]” Id. at 139. If true, that costdriven decision violated the Eighth Amendment by
denying necessary treatment for a “non-medical reason.”
Id. at 138–39 & n.7. And such an “unjustified delay in
obtaining necessary. . . surgery for a prisoner,” we held,
violates clearly established law. Id. at 140 (citations
omitted).
Delaughter doesn’t clearly establish that the officials’
actions in this case were unreasonable. No evidence
suggests the policy against SCS devices was driven by
cost. That was the key in Delaughter. See id. at 139
(“Delaughter testified that Dr. Nipper told them ‘they’—
presumably MDOC—would not pay for his surgery.”);
id. at 139 (delaying surgery “because MDOC refuses to
pay for [it] . . . could under certain circumstances evince
a wanton disregard for a serious medical need”) (cleaned
up). But here the evidence shows the SCS policy was
driven by medicine, not cost. Look at the quotes from Dr.
Talley the majority relies on. Ante at 3. In the first, right
after stating the policy against using “stimulators,” Dr.
Talley says Smith will “be treated for his chronic pain the
same way all of our patients are treated.” In the second,
right after stating TDCJ doesn’t use “pain stimulators,”
Dr. Talley says: “Please manage pain according to
[Disease Management Guidelines].” The policy prefers
one treatment for chronic pain (pain medications) over
21a
another (SRS). That isn’t the money-over-medicine
calculus Delaughter turned on. Moreover, in Delaughter
the prisoner got no treatment; here, Smith has received
numerous courses of pain medication.
Trying to tailor Delaughter to this case, the majority
stretches it beyond its facts. It says Delaughter “clearly
established” that a prison’s decision not to provide
surgery “must be the product of a genuine and
considered medical judgment, not a nonmedical reason
like a refusal to pay . . . or a blanket and non-medically
considered policy against the procedure[.]” Ante at 12.
Delaughter isn’t that broad. As discussed, Delaughter
addressed a prison’s cost-driven decision to deny
necessary surgery, not a failure to use its “genuine and
considered medical judgment.” The Supreme Court has
“repeatedly told courts . . . not to define clearly
established law at a high level of generality.” City of
Escondido v. Emmons, 139 S. Ct. 500, 503 (2019)
(citation omitted). Unfortunately, that’s what the
majority does here. Telling prison doctors they must use
“genuine and considered medical judgment” wouldn’t
have notified these defendants that the SRS policy
violated the Constitution. See, e.g., District of Columbia
v. Wesby, 138 S. Ct. 577, 590 (2018) (“The rule’s contours
must be so well defined that it is clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.”) (cleaned up).
Finally, putting all that aside, there’s the added
problem that Delaughter came out too late to inform Dr.
Talley’s judgment. Dr. Talley last denied Smith’s
request for SCS replacement on February 8, 2017. As the
majority recognizes, Delaughter was published “more
than a year” later on November 19, 2018. Ante at 11 n.6.
22a
The majority says this doesn’t matter because of the
“ongoing nature of the harm Smith claims” and
speculates that “Talley could have stopped withholding
[the SRS replacement] in 2018—when this court handed
Delaughter down—but never chose to do so.” Ibid. I
disagree. Smith seeks damages from Dr. Talley from
something she did that allegedly violated his Eighth
Amendment rights. Nothing in the record suggests Dr.
Talley was presented with, and denied, Smith’s request
for SCS replacement after Delaughter was issued. So,
that decision couldn’t have given Dr. Talley “fair notice
that her conduct was unlawful.” Brosseau v. Haugen, 543
U.S. 194, 198 (2004).4
Accordingly, I would reverse the district court’s
judgment insofar as it denies the defendant officials
qualified immunity. I would remand solely for the
purpose of deciding whether Smith is entitled to
injunctive relief.
The majority also asserts that “Delaughter merely reiterated
and solidified what has long been the law in this circuit[.]” Ante at
12. I disagree. The majority cites two prior decisions but, in my
view, neither clearly establishes the unconstitutionality of Talley’s
conduct. One, Miles v. Rich, 576 F. App’x 394 (5th Cir. 2014) (per
curiam), is unpublished and so “cannot be the source of clearly
established law for qualified immunity analysis.” Salazar v. Molina,
37 F.4th 278, 286 (5th Cir. 2022) (citation omitted). The second,
Easter v. Powell, 467 F.3d 459 (5th Cir. 2006), is distinguishable.
There, an official knew a prisoner with severe chest pain needed his
prescribed nitroglycerin, knew the pharmacy was closed, but
nonetheless “sent Easter back to his cell without providing him any
treatment.” Id. at 463–64. That is different from disagreeing over
treatment options for chronic pain.
4
23a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of
Appeals
FILED
November 10, 2022
Lyle W. Cayce
Clerk
No. 21-20232
ROBIN WAYNE SMITH,
Plaintiff—Appellee,
versus
LANNETTE LINTHICUM, Director of Health Services
Division, Texas Department of Criminal Justice;
DENISE DESHIELDS, Executive Medical Director, Texas
Tech University; SHERI J. TALLEY, Medical Director
Texas Department of Criminal Justice,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-787
ON PETITION FOR REHEARING EN BANC
24a
Before KING, DUNCAN, and ENGELHARDT, Circuit
Judges.
PER CURIAM:
Treating the petition for rehearing en banc as a
petition for panel rehearing (5TH CIR. R. 35 I.O.P.), the
petition for panel rehearing is DENIED. Because no
member of the panel or judge in regular active service
requested that the court be polled on rehearing en banc
(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for
rehearing en banc is DENIED.
25a
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
November 10, 2022
MEMORANDUM TO COUNSEL OR PARTIES
LISTED BELOW:
No. 21-20232
Smith v. Linthicum
USDC No. 4:19-CV-787
Enclosed is an order entered in this case.
Sincerely,
LYLE W. CAYCE, Clerk
By: /s/ Christina C. Rachal
Christina C. Rachal, Deputy Clerk
504-310-7651
Ms. Easha Anand
Ms. Jeanine Marie Coggeshall
Ms. Sheaffer Kristine Fennessey
Mr. Daniel Greenfield
Mr. Nathan Ochsner
Mr. Daniel Syed
Mrs. Karin Dougan Vogel
26a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
United States District
Court Southern District
of Texas
ENTERED
March 30, 2021
Nathan Ochsner, Clerk
ROBIN WAYNE SMITH, §
(TDCJ #01948750)
§
§
Plaintiff,
§
§
v.
§ CIVIL ACTION NO. 4:19§ cv-0787
LANNETTE
§
LINTHICUM, et al.,
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Pending in this pro se state inmate civil rights lawsuit
are motions for summary judgment filed by defendant
physicians Denise Deshields and Sheri Talley (Docket
Entry No. 29) and Lannette Linthicum (Docket Entry
No. 31). Plaintiff Robin Wayne Smith filed responses to
each motion (Docket Entry Nos. 34 & 35). After
Deshields and Tally filed a reply, (Docket Entry No. 36),
Smith responded with a sur-reply, (Docket Entry No.
40). The Court has carefully considered the motions,
27a
responses, replies, sur-reply, evidence in the record, and
applicable law, and concludes as follows.
I. BACKGROUND AND CLAIMS
Plaintiff Robin Wayne Smith (“Smith”) is an inmate
in custody of the Texas Department of Criminal Justice
(“TDCJ”). Smith claims that Dr. Sheri Talley (“Talley”),
who serves as the Southern Regional Director of the
Texas Tech University Health Sciences Center
(“TTUHSC”), violated his Eighth Amendment rights by
refusing to approve surgical repair or replacement of his
spinal cord stimulator (“SCS”) medical device. He claims
that Talley was deliberately indifferent to his serious
medical needs because she categorically and repeatedly
denied all requests for SCS repair, replacement, or
maintenance, regardless of his medical condition or the
recommendations of his treating physicians. He also sues
Dr. Denise Deshields (“Deshields”), the Executive
Medical Director of TTUHSC, and Lannette Linthicum,
the Director of the TDCJ Heath Sciences Division,
alleging that they failed to intervene or correct the policy
evidenced by Talley’s categorical denial of medical
treatment regarding all SCS procedures, maintenance,
replacement, or repair. He seeks declaratory, injunctive,
and monetary relief against them in their official and
individual capacity.
The medical records reflect that on November 15,
2001, Smith was medically discharged from the United
States Marine Corps (“USMC”) for chronic pain in his
lower left abdomen that was diagnosed as loin pain
hematuria
syndrome
(“LPHS”).1
After
pain
Docket Entry No. 29-4 at 200, Ex. C 199 (Smith's VA medical
records). Hereinafter, all citations to Smith's VA medical records
1
28a
management with medications failed to control Smith’s
pain, medical providers at the Veteran’s Administration
(“VA”) determined in 2002 that Smith was a candidate
for an SCS for pain management.2 On September 25,
2002, Smith underwent surgery at the VA North Texas
Hospital System to implant his SCS.3 VA physicians
reprogrammed the SCS in 2003, and revised it in 2005.4
In 2011, the VA approved surgical replacement of the
original device, but the procedure was cancelled due to a
conflict in Smith’s work schedule and a pending legal
issue.5 He was rescheduled for the surgery when he was
arrested and subsequently sentenced to 35 years’
imprisonment, without the possibility of parole in August
2014, resulting in a discharge date in 2048.6
In September 2014, Smith was transferred into
TDCJ custody. The TDCJ medical records show that the
SCS was working, at least most of the time, in 2014 and
early 2015. In September 2015, Smith requested pain
medication to use when the SCS was off.7 At that time,
will be noted as “Ex. C ---,” reflecting the Bates stamped pagination
at the bottom of the page in Exhibit C to the Motion for Summary
Judgment filed by Dr. Sheri Talley and Dr. Denise Deshields.
2
Ex. C 163.
3
Id. at 166-67.
4
Id. at 098-99, 144.
5
Id. at 037; Docket Entry No. 1 (“Complaint”) at 3.
6
Complaint at 3.
Docket Entry No. 31-2 at 169-70, Ex. B 168-69 (Smith’s TDCJ
medical records). Hereinafter, citations to Smith’s TDCJ medical
records will be noted as “Ex. B ---,” reflecting the Bates-stamped
pagination at the bottom of the page in Exhibit B to the Motion for
Summary Judgment filed by Director Lannette Linthicum.
7
29a
Smith reported that the SCS was working well but that
he was using it for longer periods of time.8 The provider
prescribed ibuprofen 600 mg twice a day for thirty days.9
In November 2015, Nurse Practitioner Amanda
Watson evaluated Smith for complaints of lower back
pain. During the evaluation Smith reported that
although his SCS turned on, it did not turn on all the
time.10 Watson referred Smith to general surgery for
evaluation of the SCS.11
Specialty Clinic Notes reflect that Dr. Brooks
evaluated Smith and referred him to TTUHSC pain
management services related to the SCS on December 9,
2015.12 Dr. Coleman, who also signed the December 9,
2015 clinic note, referred Smith to pain management for
SCS replacement.13
On December 22, 2015, Nurse Practitioner Watson
examined Smith for chronic left side abdominal pain,
which Smith described as a dull pain all of the time.14 At
that visit, Smith reported that he came to the medical
clinic daily and turned his SCS on for approximately four
hours and occasionally overnight, but that it only worked
8
Ex. B 168-69.
9
Id.
10
Id. at 164-65.
11
Id.
12
Id. at 243, 351.
13
Id.
14
Ex. B 164.
30a
if he lay down in his bunk and not if he stood up or bent
to the side.15
On February 1, 2016, Dr. Benjamin J. Leeah
(“Leeah”),16 Northern Regional Medical Director for
TTUHSC, conducted a review of Smith’s chart based on
the referral from general surgery regarding the
replacement of Smith’s SCS.17 Leeah noted that, per the
unit provider, Smith had access to the SCS remote and
turned it “on in the am and off in the pm” and
supplemented pain management with ibuprofen.18 Leeah
deferred the surgeons’ referrals at that time.19 Leeah
stated that “[g]iven current contract for inmate health
services, this SCS is mostly likely level 3 care, i.e.
medically beneficial but not medically necessary, and as
such would most likely be removed versus replaced and
maintained,” and that “[n]onetheless, patient may
qualify for transport to VA for procedure.”20
On August 16, 2016, Smith saw a provider on a sick
call request for lower back pain.21 He stated that the SCS
battery had been at 20% two years before and that he
had been approved for surgery at the VA and could get
15
Id.
Leeah also submitted an affidavit as an unretained medical
expert in support of the Motion for Summary Judgment filed by Dr.
Sheri Talley and Dr. Denise Deshields. See Docket Entry No. 29-1
(Ex. A).
16
17
Ex. B 163.
18
Id.
19
Id.
20
Id.
21
Ex. B 159-60.
31a
the procedure for SCS repair or replacement done
there.22 The provider referred the case to Dr. Talley for
consideration, emailing her that same day.23 In response,
Dr. Talley stated:
We don’t service, place, replace batteries, or
remove any of those stimulators. It will still be
there when his sentence is over. We don’t even
have a specialist on contract, such as a pain
specialist that he can be sent to anyway. He’ll be
treated for his chronic pain the same way all of
our patients are treated.24
In October 2016, Dr. Aillon, another medical provider
treating Smith, sought a referral for Smith to obtain a
surgical consultation for his SCS replacement. Dr. Talley
again refused to refer Smith for a surgical consultation,
stating:
General surgery stated that [patient] didn’t have
physiological basis for his pain. Pain specialty
not available. Treat chronic pain at the local
level.25
On October 28, 2016, Smith saw Dr. Aillon, complaining
of extreme pain in his abdomen that had started at 2 a.m.
that morning and that the Meloxicam was not working
for the pain.26 Dr. Aillon noted that Smith was hunched
22
Id.
23
Id.; see also Docket Entry No. 1-1 at 2-3.
24
Docket Entry No. 1-1 at 2.
25
Ex. B 252.
26
Id. at 157-58.
32a
over and had intense pain in his abdomen. Aillon
indicated that he would try to coordinate with the VA for
replacement of the SCS and noted that he would request
a referral for replacement of the SCS.27
On January 9, 2017, Dr. Aillon again requested a
referral for a surgical consultation and treatment for
Smith regarding the implanted SCS.28 On January 23,
2017, Dr. Aillon followed up on his second request for
Smith, stating in an email: “Please let me know if there
is anything else we can do to make this happen w/VA
services for the pain stimulator.”29 On February 8, 2017,
Dr. Talley denied Dr. Aillon’s second request for a
surgical consultation or referral to pain services for
Smith, stating:
Care, upkeep, removal of pain stimulators will
not occur while offender is in TDCJ. Batteries
will not be replaced. Please manage pain
according to DMGs.30
On April 7, 2017, Dr. Robert Martin examined Smith
for complaints of pain, including a new pain to the left of
his umbilical area. Dr. Martin noted that Smith’s pain
was not well controlled with medication and that his SCS
was not working.31 Martin increased the dosage of
Tegretol and prescribed carbamazepine, but the
27
Id.
28
Ex. B 248-49.
29
Id. at 242.
30
Id. at 225.
31
Id. at 221-22.
33a
carbamazepine was discontinued about ten days later
because it caused headaches and dizziness.32
On September 7, 2017, Smith saw Dr. Martin about
adjusting his medication and getting the remote for his
SCS so he could use it when he wanted to. Dr. Martin
noted that he would talk to Dr. Talley about the requests.
Smith did not appear to be in pain at this visit.33
Medical records further reflect that on January 17,
2018, Smith again saw Dr. Martin regarding replacing
his SCS.34 At this visit, Martin noted that Smith tried not
to take the tramadol unless he really needed it, and that
frequently he only took it once or twice per day. Martin
also noted that Smith appeared alert and seemed to move
without obvious pain and that he would talk to Dr. Talley
about the SCS replacement surgery.35 The Step Two
grievance record from Grievance #2018119359
regarding Smith’s complaints of constant pain indicate
that Dr. Talley denied the request for a referral for the
SCS on February 1, 2018.36
On August 27, 2018, Smith saw Dr. Martin again for
his abdominal pain and an umbilical hernia, complaining
that his SCS stopped working altogether.37 The progress
32
Id. at 218-19.
33
Id. at 130-31.
34
Ex. B 122-23.
35
Id.
Docket Entry No. 31-1 at 6, Ex. A at 5 (Grievance Records
noting that Dr. Talley stated on February 1, 2018 that “Care,
upkeep, and/or removal of pain stimulators will not occur while
offender is in TDCJ. Batteries will not be replaced. Please manage
pain at unit according to policy.”)
36
37
Ex. B 111-12.
34a
notes reflect that his pain was treated before with the
SCS and tramadol, but that he was now without either
form of pain relief.38 Dr. Martin requested a refill of the
tramadol at that visit.39 On February 26, 2019, Smith saw
Dr. Martin again, explaining that his main issue was his
SCS that no longer worked, and Dr. Martin submitted
another request for a non-formulary prescription for
tramadol.40
On September 11, 2019, Smith again saw Dr. Martin
about his abdominal pain.41 The medical records reflect
that Smith requested more tramadol because the dosage
was not working, and Smith reported that the pain was
more frequent, lasted longer, and the medications did
not get rid of his pain.42 Dr. Martin noted that Smith was
alert and did not appear to be in pain at that time, but
noted an increased aortic pulse and ordered an
abdominal ultrasound to check the size of the abdominal
aorta.43 When Smith saw Dr. Martin a week later, Smith
reported that he had to take ibuprofen with tramadol and
that the pain medications were not working, so they
decided to try Cymbalta.44
38
Id.
39
Id.
40
Id. at 107-08.
41
Id. at 103-04.
42
Ex. B 103-04.
43
Id.
44
Id. at 101-02.
35a
On October 9, 2019, Smith reported that the
Cymbalta was not helping.45 Dr. Talley reviewed Smith’s
restrictions, which include a work restriction, no lifting
more than 15 pounds, and bottom bunk, and determined
that no changes to the restrictions were needed.46
On February 10, 2020, Smith came to medical
complaining of back pain and that the tramadol did not
help.47 He complained that the pain was so bad that his
cellmates had to carry him to his bunk.48 The provider
noted that Smith’s blood pressure was elevated probably
secondary to pain and that he walked with an antalgic
gait.49 On February 20, 2020, Dr. Martin followed up with
Smith, who indicated that he thought the Cymbalta was
helping with the pain.50 On March 13, 2020, Smith
requested tramadol in addition to Cymbalta because he
said he needed both for the pain.51
In May 2020, Smith complained of a pain at his SCS
site, and the provider ordered an x-ray.52 On June 5,
2020, Smith had a follow-up appointment with Dr. Martin
regarding the results of his x-rays.53 The x-ray results of
the SCS showed that a wire had broken at a bend in the
45
Id.
46
Id.
47
Ex. B 90-91.
48
Id.
49
Id.
50
Id. at 88.
51
Id. at 85.
52
Ex. B 76-77.
53
Id. at 71-72.
36a
wire that looked like a couple of small very faint spiral
wires in the space between the broken ends, and Dr.
Martin noted that he planned to speak with the Regional
Director regarding what could be done at this point.54
The most recent medical record submitted by
Defendants reflects that on June 22, 2020, Smith
requested more medication and increased doses for his
pain, which Nurse Practitioner Gregory noted that she
was uncomfortable prescribing, particularly when Smith
had been on long-term, controlled substances for pain.55
Gregory referred Smith to a medical doctor for a followup.56
Smith claims, and Defendants do not dispute, that he
is not eligible for parole and his 35-year sentence is not
due to be discharged until 2048, about 27 years from now.
Smith, who is currently 43 years of age, argues that
Talley’s policy that “we don’t service, place, replace
batteries, or remove any of those stimulators” and her
insistence that the SCS “will still be there when his
sentence is over” constitute a blanket refusal of medical
care with deliberate indifference to his serious medical
need. In particular, according to Smith and the TDCJ
medical records, his SCS is no longer functioning and the
medications have lost their effectiveness, leaving him to
suffer with uncontrolled pain.
Smith additionally contends that the defendants
refused his requests to undergo surgical replacement of
the SCS through the VA. According to Smith, the VA
would perform the surgery at its own cost even though
54
Id.
55
Id. at 68.
56
Id.
37a
he is a convicted felon in prison.57 The defendants dispute
Smith’s allegation, citing federal law that prohibits
prisoners from receiving medical care through the VA if
the prison is required to provide medical care to its
prisoners. See 38 C.F.R. § 17.38(c)(5) (“In addition to the
care specifically excluded from the ‘medical benefits
package,’ under paragraphs (a) and (b) of this section,
the ‘medical benefits package does not include the
following: . . . (5) Hospital or outpatient care for a veteran
who is either a patient or inmate in an institution of
another government agency if that agency has a duty to
give the care or services”). The defendants, while
simultaneously refusing to provide care for Smith’s
condition, contend that TDCJ is required to provide
medical care to its prisoners, and, therefore, the
exclusion in 38 C.F.R. § 17.38(c)(5) applies.58
On February 10, 2020, the Court granted, in part, the
defendants’ motion to dismiss claims against them for
monetary damages in their official capacity as state
employees, but denied the motions as to the individualcapacity claims and Smith’s claims for injunctive relief.
See Docket Entry No. 18.59 On July 28, 2020, the Court
Smith contends that, once discovery has commenced, he will
be able to produce evidence that other prisoners who are also
veterans have obtained medical care from the VA hospital.
Regardless of where it may be obtained, fact issues preclude
summary judgment concerning his medical care.
57
To the extent that Smith seeks to obtain outside medical care
from the VA, that issue is immaterial to whether the named
Defendants, either directly or through a policy they implemented,
were deliberately indifferent to the plaintiff’s serious medical issue
regarding his SCS.
58
The Court further noted in its February 10, 2020 Order that
Smith’s claims regarding the denial of his grievances or claims
59
38a
denied Smith’s motion for leave to amend without
prejudice and dismissed the claims against individual
defendant Dennis Melton with prejudice for failure to
state a claim. Docket Entry No. 37. Talley, Deshields,
and Linthicum (collectively, “Defendants”) now move for
summary judgment, contending that Smith does not
raise a fact issue on his Eighth Amendment medical
deliberate indifference claims. Smith responds that the
medical records show that his SCS has stopped
functioning, that the pain medications have stopped
being effective for his pain, and that the Defendants have
a blanket policy to refuse a medical procedure while an
inmate is in custody regardless of his medical need for
that procedure and without regard for the duration of his
incarceration. Smith contends that a blanket policy
categorically denying treatment for an SCS, where that
denial will result in requiring him to live in uncontrolled
pain for thirty years, is cruel and unusual punishment.
II. LEGAL STANDARDS
A.
Summary Judgment
To be entitled to summary judgment, the pleadings
and summary judgment evidence must show that there
is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56. The moving party bears the burden of initially
pointing out to the court the basis of the motion and
identifying the portions of the record demonstrating the
absence of a genuine issue for trial. Duckett v. City of
Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992).
based on respondeat superior were not actionable under 42 U.S.C.
§ 1983. Id. at 7.
39a
Thereafter, “the burden shifts to the nonmoving party to
show with ‘significant probative evidence’ that there
exists a genuine issue of material fact.” Hamilton v.
Seque Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000)
(quoting Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.
1994)). In ruling on a summary judgment motion, “ ‘[t]he
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.’ ”
Tolan v. Cotton, 572 U.S. 650, 651 (2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).
B. Qualified Immunity
Public officials acting in the scope of their authority
generally are shielded from civil liability by the doctrine
of qualified immunity. See Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). As a
result, courts will not deny qualified immunity unless
“existing precedent . . . placed the statutory or
constitutional question beyond debate.” Ashcroft v. alKidd, 563 U.S. 731, 741 (2011). Therefore, a plaintiff
seeking to overcome qualified immunity must show: “(1)
that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at
the time of the challenged conduct.” Id. at 735 (citation
omitted).
III. DISCUSSION
A.
Medical Deliberate Indifference
A prisoner may succeed on a claim under 42 U.S.C.
§ 1983 for inadequate medical care if he demonstrates
40a
“deliberate indifference to serious medical needs” on the
part of prison officials or other state actors. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). A prison official acts
with the requisite deliberate indifference “if he knows
that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable
measures to abate it.” Farmer v. Brennan, 511 U.S. 825,
847 (1994).
Deliberate indifference is an “extremely high
standard to meet.” Domino v. Texas Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001). It requires a
finding that the defendant “disregards a risk of harm of
which he is aware” and does not permit such a finding
based on mere “failure to alleviate a significant risk that
[the person] should have perceived but did not[.]”
Farmer, 511 U.S. at 836-40. A plaintiff must show that
the 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.”
Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009)
(citation and internal quotation marks omitted).
Smith claims that Dr. Talley refused to refer him to
pain management or surgery to have his SCS repaired
or replaced. In response to her motion for summary
judgment, Smith argues that Dr. Talley based her
decision on a “blanket policy” that prohibited any care,
upkeep, repair, or replacement of SCS devices when she
stated, without qualification, that “we don't do that.”60
Citing to the medical and grievance records provided by
the Defendants, he contends that Dr. Talley was
60
Docket Entry No. 40 at 2.
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deliberately indifferent to his serious medical need for
pain abatement despite the recommendations of several
of his treating physicians, who repeatedly requested a
referral for him to pain management and for a surgical
consult regarding his SCS.
Contrary to Talley’s contentions, Smith has raised a
fact issue regarding whether Talley’s blanket policy of
refusing to address any problems with an SCS device and
her statement that “it will still be there when his
sentence is over” — regardless of his medical need and
the duration of his sentence — is more than a mere
disagreement about treatment and tends to indicate a
fixed, categorical refusal to treat a painful medical
condition. Smith points out that several of his medical
providers, who performed his physical examinations and
afforded him with primary care at the unit level,
recommended referral to pain management and an
evaluation regarding his SCS, but Talley refused the
requests from his providers each time.
Taking the evidence in the light most favorable to the
nonmovant and drawing justifiable inferences in his
favor, the Court concludes that Smith raises a fact issue
about whether Dr. Talley “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.”
Brewster, 587 F.3d at 770. The medical records reflect
that Smith has an existing, albeit now non-functional,
SCS implanted in his body that was effective in
managing his pain when it was working correctly.
Talley’s categorical denial of the multiple requests from
Smith’s medical providers for referral for repair of that
device creates triable issues of fact as to whether
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TTUSCH or TDCJ instituted a policy not to treat SCS
issues regardless of the circumstances and whether that
policy was implemented in deliberate indifference to an
inmate like Smith’s serious medical needs. Therefore,
the Court finds that summary judgment is also not
appropriate as to Deshields and Linthicum, who, as
Directors of the health care divisions of their respective
institutions, allegedly instituted and authorized this
policy. See Porter v. Epps, 659 F.3d 440, 446 (5th Cir.
2011) (holding that supervisory officials may be liable if
they implemented an unconstitutional policy that
resulted in constitutional injury).
B.
Qualified Immunity
As explained above, Smith has raised a fact issue
regarding whether Talley acted in deliberate
indifference to his medical needs and whether the
Defendants created and implemented a categorical
policy not to treat medical issues regarding a SCS device
that is malfunctioning regardless of the duration of a
prisoner-patient’s
incarceration,
in
deliberate
indifference to an inmate’s serious medical needs. At the
time of the events in question, it was clearly established
that “a prison inmate could demonstrate an Eighth
Amendment violation by showing that a prison official
‘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.’ ” Easter v.
Powell, 467 F.3d 459, 465 (5th Cir. 2006) (quoting
Domino, 239 F.3d at 756). Similarly, it was clearly
established that a supervisory official may be held liable
for implementing a constitutionally deficient policy that
caused constitutional harm. See Porter, 659 F.3d at 446.
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Therefore, at this stage of the case, dismissal based on
qualified immunity is not warranted.
C.
Injunctive Relief under the Prison
Litigation Reform Act
Defendants contend that Smith cannot meet the
standard for obtaining injunctive relief under the Prions
Litigation Reform Act (“PLRA”). Under the PLRA, any
prospective injunctive relief “shall extend no further
than necessary to correct the violation of the Federal
right,” and a court “shall not grant or approve any
prospective relief unless the court finds that such relief
is narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the
Federal right.” 18 U.S.C. § 3626(a)(l)(A).
As set forth above, Smith raised fact issues regarding
an ongoing violation of his constitutional rights in
connection with the denial, without qualification, of a
referral to evaluate and treat his SCS, and whether there
is a policy to deny all such requests, in deliberate
indifference to a prisoner’s serious medical needs.
According to the Defendants, TDCJ has the duty to
provide adequate medical treatment to address Smith’s
medical needs, and, therefore, they argue that Smith’s
request to go to the VA for treatment for his SCS is not
available under federal law. Smith contends that he is
asking to be allowed to go to the VA only if it is found
that TDCJ does not have the duty to provide treatment
for his non-functioning SCS, citing the exception in 38
C.F.R. § l7.38(c)(5) for medical services coverage for
veterans like him in cases where the correctional
institution has no duty to treat a medical issue. At this
stage of the litigation, fact issues preclude summary
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judgment on whether some form of narrowly-drawn
injunctive relief, extending no further than necessary to
address the claimed ongoing violation of Smith’s
constitutional rights, would be appropriate. Therefore,
summary judgment on this issue will be denied.
IV. CONCLUSION AND ORDER
For the reasons set forth above, it is
ORDERED that Defendants Dr. Talley and Dr.
Deshields’s Motion for Summary Judgment, (Docket
Entry No. 29), and Defendant Lannette Linthicum’s
Motion for Summary Judgment, (Docket Entry No. 31),
are DENIED. It is further
ORDERED that Smith shall file any motion for
appointment of counsel to assist him in prosecuting this
case within 30 days of the date he receives this
Memorandum Opinion and Order. It is further
ORDERED that this case is temporarily STAYED
pending consideration of any motion for appointment of
counsel. After a decision regarding any motion for
appointment of counsel is made, the Court will convene a
pretrial scheduling conference and set this case for trial.
The Clerk will provide a copy of this order to the
parties.
SIGNED at Houston, Texas, on /s/ MAR 30 2021 .
/s/Alfred H. Bennett
ALFRED H. BENNETT
UNITED STATES DISTRICT JUDGE
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APPENDIX D
U.S. Const. amend VIII. Excessive Bail, Fines,
Punishments:
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
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APPENDIX E
42 U.S.C. § 1983. Civil action for deprivation of rights:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of
this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a
statute of the District of Columbia.
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.