     Case: 18-10291         Document: 00515126581        Page: 1     Date Filed: 09/20/2019




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                        No. 18-10291                             FILED
                                                                         September 20, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk
PAUL R. GREGORY,

                Plaintiff-Appellee

v.

DENTIST BAUCUM; DENTIST EVANS; C.O. SEXTON,

                Defendants-Appellants


                     Appeals from the United States District Court
                          for the Northern District of Texas
                                USDC No. 7:16-CV-103




Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM: *
       This is an interlocutory appeal from the district court’s 1 denial of motions
for summary judgment based on qualified immunity in an action under 42
U.S.C. §1983. After due consideration, we AFFIRM in part, REVERSE in part,
and REMAND.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

       1   The parties consented to proceed before a magistrate judge.
     Case: 18-10291       Document: 00515126581          Page: 2     Date Filed: 09/20/2019


                                       No. 18-10291

                      FACTS AND PROCEDURAL HISTORY
       Paul R. Gregory is an inmate currently in the custody of the Texas
Department of Criminal Justice (TDCJ) and incarcerated at the Allred Unit in
Iowa Park, Texas. Gregory asserts that during the intake process on October
7, 2015, correctional officer William Sexton confiscated and disposed of his only
set of dentures. The top dentures were broken, but Gregory maintains they
could have been fixed with two drops of glue. 2 Gregory asserts that Sexton told
him he did not need the dentures and threatened to hit him in the mouth.
       Gregory filed various grievances, which were denied, in part, because the
Unit Dental Department could aid him in obtaining new dentures. Gregory
also sought medical attention by filing sick call requests on January 20, March
15, April 26, and July 28, 2016, complaining of stomach pain and cramps,
difficulty eating, headaches, pain while eating, mouth ulcers, bleeding gums,
and bloody stools. Gregory asserts that he was seen by two different dentists,
John Baucum, D.D.S., and Nancy Evans, D.D.S., who both denied him
replacement dentures and a soft food diet. This denial was apparently based
on Gregory’s Body Mass Index (BMI) being within normal limits and on his
oral cavity being healthy, without reference to any of Gregory’s specific
symptoms. As a result, Gregory filed a civil rights suit under 42 U.S.C. § 1983
against Baucum, Evans, Tommy Norwood, the Allred Unit’s medical director,
and Sexton, asserting that they were deliberately indifferent to his serious
medical needs.
       Baucum, Evans, and Norwood jointly moved for summary judgment, and
Sexton filed a separate motion for summary judgment. The record included
excerpts from Gregory’s medical records, his prison grievance procedure


       2 The Correctional Managed Healthcare Policy Manual provides for dental
prosthodontic services, including provision of prostheses, the consideration of soft diets, and
the forwarding/storage, replacement, repair/reline of prostheses.


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records and his sick call requests. The district court denied both motions. As
to the deliberate indifference claim against Sexton, the district court
determined that Gregory demonstrated a genuine issue of material fact.
Noting that the TDCJ policy providing that dentures were not a medical
necessity was not determinative, the district court concluded, based on this
court’s precedent, that the symptoms alleged by Gregory “clearly constitute[d]
a serious medical need.” See also Vasquez v. Dretke, 226 F.App’x 338, 340 (5th
Cir. 2007). Gregory’s complaint against Sexton was based on the disposal of
his broken dentures, which created this serious medical need. The need was
also evident based on Gregory’s possession of dentures prescribed by a previous
doctor. Further, Gregory demonstrated that a genuine issue of material fact
existed as to whether Sexton knew of and disregarded a substantial risk of
harm. Sexton argued that he could not have known of any such risk because
he was not a medical professional, but the district court cited authority
establishing that prison guards can exhibit deliberate indifference to serious
medical needs. See Farmer v. Brennan, 511 U.S. 825, 843 (1994). Finally, the
district court noted that it could not deny injunctive relief as a matter of law
at the summary judgment stage. Rather, the court determined that injunctive
relief would be available to Gregory if the finder of fact ultimately concluded
that Sexton was deliberately indifferent and that injunctive relief was
warranted.
      Regarding Baucum and Evans, the district court again concluded that
Gregory demonstrated a genuine issue of material fact as to deliberate
indifference. The court dismissed the claims against Norwood because Gregory
did not present any evidence to show that he was personally involved in the
alleged constitutional violation. Citing unpublished Fifth Circuit cases, the
district court found that allegations similar to Gregory’s were sufficient to state



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a claim for deliberate indifference. The court acknowledged that the cited cases
were decided at the motion to dismiss stage but determined that the facts
alleged could prove an Eighth Amendment violation. Baucum and Evans
argued that they did not know of and did not disregard an excessive risk of
harm and that the medical records showed that Gregory had not lost weight
without his dentures and had no problems with his oral cavity. However, the
court found that Gregory’s evidence—his sworn statements—contradicted the
defendants’ evidence, which created a genuine issue of material fact for trial.
Further, the court concluded that the defendants were not entitled to qualified
immunity because a fact issue existed as to whether they had committed a
clearly established constitutional violation. Also, the court reiterated that
Gregory was not arguing that his nutritional status was compromised or that
his BMI was not within the normal range. Instead, Gregory was arguing that
the lack of dentures was causing him to suffer from difficulty eating,
headaches, gum disfigurement, severe pain, bleeding in his mouth, blood in his
stool, and severe stomach pain.
      Following the denial of the motions for summary judgment, Sexton filed
a motion to alter the judgment pursuant to Federal Rule of Civil Procedure
59(e). See Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir.
2012) (holding that a motion filed within 28 days of the judgment is analyzed
under Rule 59 rather than Rule 60). The court construed the motion as a
motion for reconsideration of the denial of summary judgment and denied it.
Sexton, Baucum and Evans then appealed.              Gregory also moved for
appointment of counsel.
                                  DISCUSSION
      Baucum, Evans, and Sexton argue that no competent summary
judgment evidence existed to create a genuine issue of material fact because



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Gregory’s evidence consisted only of legal conclusions and allegations. The
dentists contend that the summary judgment evidence showed that they did
not act with deliberate indifference because they followed prison policy and
Gregory did not rebut their showing of qualified immunity. Sexton argues that
he was entitled to qualified immunity because Gregory failed to allege a
violation of a constitutional right and failed to argue his actions were
objectively unreasonable.
      The denial of a motion for summary judgment based on qualified
immunity is a collateral order that may be an appealable final decision.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This court’s jurisdiction to review
the denial is “significantly limited.” Kinney v. Weaver, 367 F.3d 337, 346 (5th
Cir. 2004) (en banc). A district court’s finding that genuine factual disputes
exist is a factual determination that we may not review in this interlocutory
appeal, but the district court’s finding that a particular dispute is material is
a legal determination that we may review. Meadours v. Ermel, 483 F.3d 417,
422 (5th Cir. 2007).    Therefore, we lack jurisdiction to review appellants’
arguments that Gregory’s sworn complaint was insufficient evidence to defeat
summary judgment and that Gregory’s testimony lacked credibility.             See
Gobert v. Caldwell, 463 F.3d 339, 346-52 (5th Cir. 2006); Brown v. Strain, 663
F.3d 245, 250-51 (5th Cir. 2011).
      We have jurisdiction to review whether Gregory’s factual allegations
were insufficient to allege deliberate indifference to his serious medical needs.
See Kinney, 367 F.3d at 346. “The doctrine of qualified immunity protects
government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Stanton v. Sims, 571 U.S. 3, 5-6
(2013) (internal quotation marks and citation omitted). Prison officials violate



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the Eighth Amendment’s prohibition against cruel and unusual punishment
when they demonstrate deliberate indifference to a prisoner’s serious medical
needs, constituting an “unnecessary and wanton infliction of pain.” See Estelle
v. Gamble, 429 U.S. 97, 104-05 (1976) (internal quotation marks and citation
omitted). The official must “know[ ] of and disregard[ ] an excessive risk to
inmate health or safety” and “be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists.” Farmer, 511 U.S. at
837. “Whether a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence, . . . and a factfinder may conclude that
a prison official knew of a substantial risk from the very fact that the risk was
obvious.” Id. at 842 (citation omitted).
      Sexton argues that the summary judgment record did not show that he
subjectively knew of any risk of harm. The facts underlying the confiscation of
Gregory’s dentures are contested. Further, “[c]ourts in this circuit and others
have found Eighth Amendment violations when prison officials deprive an
inmate of a needed medical prosthesis or other device.” Brewster v. Dretke, 587
F.3d 764, 769 (5th Cir. 2009). However, Gregory fails to demonstrate that
Sexton was aware that his action of taking Sexton’s broken dentures and
throwing them away exposed Gregory to a substantial health risk or that
Sexton consciously disregarded that risk. Id. at 770. As a result, Sexton did
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Ashcroft v. al-Kidd, 563 U.S. 731, 735,
744 (2011). Thus, we conclude that Sexton was entitled to qualified immunity
and the district court erred in denying his motion for summary judgment.
      Baucum and Evans argue that the evidence shows that they acted
reasonably because they determined that Gregory had no medical need for



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dentures and did not qualify for them pursuant to prison policy. Numerous
unpublished decisions concerning dental care and dentures provide persuasive
authority that prison officials act reasonably when they provide extensive
dental treatment, including soft food diets, in lieu of dentures. See Daugherty
v. Luong, 485 F. App’x 696, 696-97 (5th Cir. 2012); Hay v. Thaler, 470 F. App’x
411, 415 (5th Cir. 2012); Marquez v. Woody, 440 F. App’x 318, 319, 323 (5th
Cir. 2011); Smith v. Pinchback, 242 F. App’x 132, 133 (5th Cir. 2007). In this
case, the record reflects four sick call visits, no extensive dental care or
treatment, and no special diet to address Gregory’s complaints. Baucum and
Evans have not shown that the district court erred by denying their motion for
summary judgment.
      Finally, Sexton challenges the district court’s conclusion that Gregory
may be entitled to injunctive relief. Because we conclude that the district court
erred as to Sexton, we likewise conclude that Gregory is not entitled to
injunctive relief against Sexton.
      For these reasons, the district court’s judgment is AFFIRMED in part,
REVERSED in part, and the case is REMANDED for further proceedings.
Gregory’s motion for appointment of counsel is DENIED as moot.




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