     Case: 14-30801   Document: 00513120625    Page: 1   Date Filed: 07/17/2015




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

                                No. 14-30801                            FILED
                                                                    July 17, 2015
                                                                   Lyle W. Cayce
FRANCIS BRAUNER,                                                        Clerk

                                          Plaintiff - Appellee

v.

SHIRLEY COODY, Assistant Warden;
KENNETH NORRIS, Assistant Warden;
JONATHAN ROUNDTREE, Medical Doctor;
JASON COLLINS, Medical Doctor;
UNKNOWN MCMURDO, Doctor,

                                          Defendants - Appellants



                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before JONES, SMITH, and COSTA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      A disabled Louisiana inmate sued several of his doctors and jailers,
claiming they were deliberately indifferent to his serious medical condition in
violation of the Eighth Amendment’s prohibition on cruel and unusual
punishment. The district court held perfunctorily that there was a genuine
issue of material fact and denied qualified immunity, rejecting the magistrate
judge’s contrary recommendation. Because the record cannot support a claim
of deliberate indifference, we REVERSE the order of the district court and
RENDER judgment for defendants.
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                                       No. 14-30801
                                      BACKGROUND
      Plaintiff Francis Brauner is a paraplegic incarcerated at the Louisiana
State Penitentiary in Angola. Brauner resides in the R. E. Barrow Treatment
Center, which is staffed at all times by doctors, nurses, and medical orderlies.
A physician medical director oversees treatment and an assistant warden
oversees the facility. Brauner’s immobility has led to the development of
decubitus ulcers, more commonly known as pressure sores or bedsores. His
sores have progressed into chronic osteomyelitis, a serious and painful
infection of the bone. Medical staff noted broken skin, tunneling, exposed
muscle and bone, and obvious signs of infection.
      Brauner sued a variety of defendants; two sets are relevant here:
Assistant Wardens Shirley Coody and Kenneth Norris, who were at different
times in charge of the facility itself but with no authority over medical
decisions; and Drs. Jonathan Roundtree, Jason Collins, and David Hal
McMurdo, all of whom treated Brauner at some point. The defendants do not
deny knowledge of the existence or severity of Brauner’s medical condition.
Prison staff have treated Brauner in a variety of ways since January 18, 2011,
the time period relevant to this case. 1
      Plaintiff sued on May 28, 2012, alleging that prison officials have been
deliberately indifferent in managing his care. After some initial proceedings,
the chief judge of the Middle District of Louisiana issued an order recusing all
judges in the district and assigning the case to Judge Africk of the Eastern
District of Louisiana (though venue remained in the Middle District). Before
the reassignment, appellants moved for summary judgment on the basis of
qualified immunity. In a 22-page order, the magistrate judge reviewed the
evidence and concluded that circuit precedent foreclosed a deliberate



      1   The district court dismissed claims before that date as outside the limitations period.
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                               No. 14-30801
indifference claim.   Brauner supported his claims primarily with his own
statements (some of which were sworn under penalty of perjury), and largely
challenged the medical decisions of his doctors. Judge Africk rejected the
magistrate judge’s report and recommendation in a brief order holding that
there were genuine issues of material fact. Appellants timely appealed.
                               JURISDICTION
      A district court’s denial of qualified immunity is a collateral order subject
to immediate appeal. Denying qualified immunity implies both “that a certain
course of conduct would . . . be objectively unreasonable in light of clearly
established law” and “that a genuine issue of fact exists regarding whether the
defendant(s) did, in fact, engage in such conduct.” Kinney v. Weaver, 367 F.3d
337, 346 (5th Cir. 2004) (en banc). This court has jurisdiction over the appeal
only to the extent it “challenges the materiality of factual issues, but” not when
“it challenges the district court’s genuineness ruling—that genuine issues exist
concerning material facts.” Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481,
490 (5th Cir. 2001). When the basis of the district court’s denial is unclear, the
appellate court “can either scour the record and determine what facts the
plaintiff may be able to prove at trial and proceed to resolve the legal issues,
or remand so that the trial court can clarify the order.” Thompson v. Upshur
Cnty., Tex., 245 F.3d 447, 456 (5th Cir. 2001).
      Neither remand nor dismissal is necessary here. “The mere existence of
some factual dispute is not enough to defeat this court’s jurisdiction over an
interlocutory appeal: If the disputed facts are not material to this legal
question, ‘the denial of summary judgment is [immediately] reviewable as a
question of law.’” Gonzales v. Dallas Cnty., Tex., 249 F.3d 406, 411 (5th Cir.
2001) (quoting Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000))
(alteration corrects omission in Gonzales). As will be seen, the facts in the


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                                 No. 14-30801
record before us are either undisputed or not material. See Bazan, 246 F.3d at
490.
                             LEGAL STANDARDS
        “We review the district court’s summary judgment decision de novo,
using the same standard as the district court.” Roberts v. City of Shreveport,
397 F.3d 287, 291 (5th Cir. 2005).       Once defendants assert the qualified
immunity defense, “[t]he plaintiff bears the burden of negating qualified
immunity . . . but all inferences are drawn in his favor.” Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010) (citation omitted); see also Ontiveros v. City
of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009). “When, as here, the
district court does not explain with sufficient particularity the factual basis
justifying a denial of qualified immunity, an appellate court must examine the
record, and it becomes our task to determine whether . . . each defendant was
entitled to qualified immunity.” Longoria v. Texas, 473 F.3d 586, 593 (5th Cir.
2006).
        To determine that an official is not entitled to qualified immunity, the
court must find that every reasonable officer would have understood that the
alleged conduct violated a clearly established constitutional right. Lytle v.
Bexar Cnty., Tex., 560 F.3d 404, 409 (5th Cir. 2009). The constitutional right
at issue here is the Eighth Amendment’s prohibition on cruel and unusual
punishment, which “[p]rison officials violate . . . when they demonstrate
deliberate indifference to a prisoner’s serious medical needs, constituting an
unnecessary and wanton infliction of pain.” Brewster v. Dretke, 587 F.3d 764,
769 (5th Cir. 2009) (citing Wilson v. Seiter, 501 U.S. 294, 297, 111 S. Ct. 2321,
2323 (1991)). “Deliberate indifference is an ‘extremely high’ standard to meet.”
Id. at 770 (5th Cir. 2009). An official is not liable for deliberate indifference
“unless the official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could

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                                 No. 14-30801
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, 114 S. Ct. 1970, 1979
(1994). To meet his burden, “the plaintiff must show that the officials ‘refused
to treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard
for any serious medical needs.’” Domino v. Tex. Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236,
1238 (5th Cir. 1985)). 2
                                      DISCUSSION
       Even taking Brauner’s version of the facts as true, he cannot meet the
deliberate indifference standard.            This conclusion entitles appellants to
qualified immunity.
       Brauner’s complaints fall into the following categories: 1) inadequate
pain management; 2) unsanitary showers; 3) inadequate wound care; 4) denial
of a slide board and special cushions; 5) failure to provide proper turning and
range of motion therapy. The first three are treated below. The fourth, denial
of a slide board to assist his mobility, is a matter of medical judgment that does
not give rise to a claim for deliberate indifference. 3 As for the last claim,


       2 Because the record evidence does not support deliberate indifference, we do not reach
the objective reasonableness prong of immunity analysis here. We note, however, in regard
to qualified immunity, “the analysis for objective reasonableness is different from that for
deliberate indifference. Otherwise, a successful claim of qualified immunity in this context
would require defendants to demonstrate that they prevail on the merits, thus rendering
qualified immunity an empty doctrine.” Hare v. City of Corinth, Miss., 135 F.3d 320, 328 (5th
Cir. 1998). Thus, even if a plaintiff raises a material fact issue that the defendants’ actions
were deliberately indifferent, he must also show that no reasonable officer could have thought
the actions appropriate. Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993). That is,
appellants are entitled to summary judgment “as long as their actions could reasonably have
been thought consistent with” Brauner’s right to be free from cruel and unusual punishment.
Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034 (1987).

       3  The medical professionals at the prison determined that the board was not medically
necessary since orderlies and nurses were available to assist Brauner with moving from bed
to chair.
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                               No. 14-30801
Brauner did not object to the magistrate judge’s findings that he “ma[de] no
allegations whatsoever with respect to the denial of adequate range of motion
therapy” and that his proper-turning claim was equally defective. The district
court’s rejection of the magistrate judge’s report makes it unclear whether
Brauner failed to preserve this objection, but in any case, the magistrate
judge’s analysis is correct. 4

       A. Medication
       Brauner first complains about the pain medication his doctors
prescribed. There is no dispute that he is in pain. Even if there were some
improprieties in the management of Brauner’s pain, they would not rise to the
level of deliberate indifference. Brauner’s brief is replete with examples of
attentive and varied treatment from his physicians: he does not challenge the
doctors’ testimony that they each prescribed him various prescription and over-
the-counter pain medicine. Brauner argues “that he required more than mere
over-the-counter [medication] to abate his pain[.]” Besides the fact that he
received more than mere over-the-counter medication—Brauner himself
mentions prescriptions for Lortab, Parafon Forte, Valium, methadone,
ibuprofen, acetaminophen, Neurontin, and baclofen—these are “classic
example[s] of a matter for medical judgment.” Estelle v. Gamble, 429 U.S. 97,
107, 97 S. Ct. 285, 293 (1976).
       We now briefly examine Brauner’s allegations against each doctor. He
testified that Dr. Roundtree only prescribed him methadone, 5 despite his
protests that it makes him violently ill, and over-the-counter medication.


       4Brauner’s only argument on appeal is that since it is obvious that his condition would
deteriorate without proper turning, the officials can be held liable under a supervisory theory.
He did not explain to the magistrate judge how the defendants were deliberately indifferent,
nor does he explain it to us.

       5   Methadone is an opioid narcotic used to treat moderate to severe pain.

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                                No. 14-30801
Dr. Roundtree stated in his affidavit that he discontinued Brauner’s Lortab 6
prescription because prison officials suspected the prisoner was distributing
the pills rather than using them for his pain. 7 Further, Brauner’s medical
records show that another doctor indicated, on February 17, 2011, that
Brauner “started on methadone 1 yr ago that’s when his nausea started, it was
d/ced [discontinued] [chang]ed to MS Contin.”                The MS Contin was also
discontinued and he was started on Lortab. And even if Dr. Roundtree had
kept Brauner on the methadone, he also treated him for nausea. These facts
refute Brauner’s assertion that the doctors cruelly prescribed methadone in
order to inflict him with nausea.            The alleged actions do not constitute
deliberate indifference.
       With respect to Dr. MacMurdo, Brauner first points to his own testimony
that Dr. MacMurdo “never prescribed pain medication,” then he affirmatively
states that Dr. MacMurdo prescribed him Neurontin. 8 Brauner argues in his
brief that “testimonial discrepancies . . . create a genuine issue of material
fact.” But his own facts contradictory facts demonstrate at most that there was
a brief period of time during which he was not on prescription pain medication.
A medical doctor is entitled—obliged, even—to change a patient’s prescription
in response to suspected misuse, addiction, or abuse. Doing so is not deliberate
indifference.




       6 Lortab is the brand name of combination hydrocodone bitartrate and acetaminophen,
similar to Vicodin.

       7  In his appellate brief, Brauner says this accusation “is itself suspect given that
Plaintiff is a paraplegic, is generally confined to his bed, and testified that he had never
distributed his medication to others.” The question is not the correctness of the accusation,
but the basis for the doctor’s decision.

       8Neurontin is a brand name for gabapentin, used to treat pain from shingles and
other nerve disorders.
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                                No. 14-30801
      Brauner alleges that he sent several complaint letters to Dr. Collins, who
was for a time the medical director at the Barrow Treatment Facility.
Dr. Collins testified by affidavit that he consulted a neurologist who informed
him that Brauner’s claim of pain below the waist “was not possible;” he
therefore prescribed Neurontin for any residual nerve pain and discontinued
Lortab. Acting on advice of a specialist and prescribing medication to treat a
patient is not deliberate indifference. See Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006).
       Deliberate indifference is not established when “medical records
indicate that [the plaintiff] was afforded extensive medical care by prison
officials[.]” Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Brauner’s
history of complaints and the doctors’ refusal to accommodate his requests in
the manner he desired do not change this calculus. See Mayweather v. Foti,
958 F.2d 91, 91 (5th Cir. 1992) (“The treatment may not have been the best
that money could buy, and occasionally, a dose of medication may have been
forgotten, but these deficiencies were minimal, they do not show an
unreasonable standard of care, and they fall far short of establishing deliberate
indifference by the prison authorities.”). As a matter of law, these doctors were
not deliberately indifferent in their treatment of Brauner’s pain.
      B. Unsanitary Showers
      Brauner also complains about the state of the showers and the
irregularity of his bed bathing. The magistrate judge cited the undisputed
testimony of the doctors and a non-defendant nurse, who testified that the
showers were cleaned twice a day with bleach, that Brauner was given a
disinfectant spray bottle for his personal use, and that Brauner was permitted
to enter the showers before the other prisoners so that he could clean himself
without interference. Further, Brauner was permitted to bathe in his bed and
often did so. The magistrate judge also found that Brauner “presented no
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                            No. 14-30801
competent summary judgment evidence to rebut the defendants’ evidence” and
had not demonstrated how the “purported conditions pose any significant risk
to him[.]” Brauner cites a long list of days on which he was allegedly not
cleaned, but it is difficult to know what to make of the records he cites, in part
because it is not clear that the bathing records are exhaustive. It is undisputed
that at no point was Brauner prohibited from using the showers.
      Even if Brauner’s facts are taken as true, the most that can be said is
that the prison failed to maintain perfectly germ-free showers, which is not
cruel and unusual punishment. Prison policy was for the showers to be cleaned
twice a day with bleach.       Brauner’s attempt to use this policy to show
defendants’ knowledge of the “unsanitary conditions” is perplexing. Brauner
asserted that a nurse told him not to use the showers “with your open wounds
like that” because no amount of cleaning would “kill what’s in that shower.”
Putting aside possible hearsay problems in this testimony, it shows only that
a nurse had opinions about the prison’s ability to maintain the showers and
was concerned enough about Brauner to advise him to avoid using them. The
evidence, again, does not rise to the level of deliberate indifference.
      C. Wound Care
       In his appellate brief, Brauner argues that the doctors and wardens
were deliberately indifferent in failing to supervise and train subordinates in
proper wound care. As appellants note, Brauner does not dispute “that each
doctor prescribed appropriate wound care[.]” Since the doctors, of course, do
not normally personally change the patients’ bandages, Brauner must rely on
a theory of supervisory liability.
      We have held that “doctors may not be held liable for § 1983 violations
under a theory of respondent superior or vicarious liability, based upon claimed
omissions by the nurses.” Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999).
A supervisor can, however, be held liable when he was himself deliberately
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                                No. 14-30801
indifferent. In order to hold a defendant supervisor liable on such a theory,
“the plaintiff must show that: (1) the supervisor either failed to supervise or
train the subordinate official; (2) a causal link exists between the failure to
train or supervise and the violation of the plaintiff’s rights; and (3) the failure
to train or supervise amounts to deliberate indifference.” Smith v. Brenoettsy,
158 F.3d 908, 911-12 (5th Cir. 1998). Thus, Brauner would have to create a
genuine issue of material fact that the doctors and wardens failed to supervise
or train the subordinate officials. He would then have to create a genuine fact
issue that the doctors knew the nurses were disregarding their orders, and the
doctors neglected to correct this behavior knowing it posed an actual serious
risk to Brauner’s health. His evidence is lacking on these points.
      Brauner asserts that the doctors “likely knew of the staff’s deficient
wound care for several reasons.”       These reasons are Brauner’s repeated
complaints and “the prolonged period of time Plaintiff suffered with decubiti[.]”
But Brauner’s own evidence shows that even if his wound care was occasionally
sporadic, the doctors were active in managing it. There may be a fact issue as
to whether the staff skipped some wound treatments, since the records are
simply blank on those days.        But this is not material to the deliberate
indifference claim.     Brauner’s extensive summary of dressing changes
demonstrates that his dressings were changed frequently if not exactly as
prescribed, and the doctors regularly changed the prescribed frequency in
response to the up-and-down condition of the sores. Appellants’ testimony,
which Brauner fails to contest in large part, demonstrates that his doctors
wrote wound care orders, ordered cultures, placed him on vitamin and
antibiotic therapy regimens to assist with healing, and escalated wound
treatment strategies when necessary. That is, even if “subordinates were
persistently delinquent in their duties,” as Brauner asserts, this is not the
same as showing either that Brauner’s rights were violated or that the doctors

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                                 No. 14-30801
were deliberately indifferent as supervisors, both of which are required under
Brenoettsy.
      Brauner relies on the magistrate judge’s “liberal construction” of his
complaint as stating a claim for supervisory liability against the assistant
wardens. Granting this liberality, however, the magistrate judge was also
correct that these claims are not viable. As described above, Brauner does not
establish that any right was violated.        He was at all times prescribed
medication and wound treatments, and he had access to showers that the
prison regularly cleaned.      The wardens could not have known about
constitutional violations, since there were no constitutional violations.
Further considering that the medical professionals made all treatment
decisions, there is no basis on which to find the wardens liable.
      One piece of non-testimonial evidence adduced by the parties is
noteworthy regarding the supervisory liability claim.       In his request for
administrative remedy, Brauner related that during evacuation due to
flooding, nurses asked him whether his dressing had been changed. He said
no. The nurses told Assistant Warden Coody, who ordered Nurse Chuck to
return and do the dressing change. This is the exact opposite of supervisory
deliberate indifference: it is an example of supervisory diligence correcting
subordinate negligence.
      D. Precedent
      Finally, these conclusions are supported by Fifth Circuit precedent
finding no deliberate indifference in similar cases.
      One recent example is Gobert v. Caldwell, 463 F.3d 339 (5th Cir. 2006),
in which the plaintiff also suffered from pressure sores. There, as here, the
doctor had knowledge of the prisoner’s condition and the substantial risk
attending nontreatment. But the evidence at best demonstrated that the
medical staff had been negligent for a short time during the prisoner's
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                                No. 14-30801
treatment. And as in that case, the medical records cited by both parties here
show pain medication, wound management, mobility treatment, and antibiotic
therapy during the relevant time periods. Brauner’s evidence does not rise
even to Gobert’s level, where there was no deliberate indifference.
      In Stewart v. Murphy, another pressure-sores deliberate-indifference
case, the court acknowledged “independent acts of negligence” by various
physicians. One of the attending physicians “did not read the nurses’ notes,
which indicated that Stewart had an infection from a catheter, and he did not
prescribe antibiotics.” Stewart v. Murphy, 174 F.3d 530, 535-36 (5th Cir. 1999).
The evidence also showed that the patient, admittedly quite ill, was not seen
over the four-day Thanksgiving holiday. Id. at 536. One doctor said it looked
as though the inmate would die, but “did not transfer [the prisoner] to another
facility for physical therapy, or read the nurses’ notes, or administer
antibiotics.” Id. Later, the prisoner died from sepsis caused by his decubitus
ulcers. Id. This court held that “at worst, these actions might constitute
negligence, not the requisite deliberate indifference.” Id.
      The negligence in Gobert and Stewart did not present deliberate
indifference. A fortiori, since Brauner has not even created a genuine material
fact issue concerning negligence or medical malpractice, these defendants are
entitled to qualified immunity.
                                  CONCLUSION
      The district court order does not identify the factual disputes that
preclude summary judgment on the basis of qualified immunity, even though
the magistrate judge’s report makes a strong case to the contrary. In such
circumstances, we have sometimes found it appropriate to vacate and remand
for clarification. See Thompson, 245 F.3d at 456; Kinney, 367 F.3d at 348. This
is not necessary here.    Because the record does not support a claim for


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                              No. 14-30801
deliberate indifference, we REVERSE and RENDER judgment for these
defendants.




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