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




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

                                                                            FILED
                                                                           June 19, 2013
                              Nos. 12-10484 c/w 12-10539
                                                                           Lyle W. Cayce
                                                                                Clerk
TRAVIS HUNTER BLANK,

                                                  Plaintiff-Appellant,
v.

HAROLD EAVENSON; BOB GUZIK; MEDICAL DOCTOR LES
SANDKNOP,

                                                  Defendants-Appellees.


                   Appeals from the United States District Court
                        for the Northern District of Texas
                         U.S.D.C. No. 3:11-cv-1327-K-BK


Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellant, Travis Blank appeals from the district court’s grant
of Defendants-Appellees’ motions to dismiss, and subsequent entries of final
judgment. Blank proceeds on appeal pro se. For the reasons provided herein,
we AFFIRM the final judgments of the district court.
                                        I. FACTS1

       *
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
          For the limited purposes of this appeal, we treat as true all well-pleaded factual
allegations in Blank’s complaint. The live complaint for purposes of this appeal is the
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       Blank is a federal prisoner, convicted of the possession and transportation
of child pornography. While in pre-trial detention, Blank was temporarily
housed at the Rockwall County Jail (the “Jail”), in the vicinity of Dallas, Texas,
pursuant to an arrangement with the U.S. Bureau of Prisons.
       Defendant-Appellee, Harold Eavenson is the Sheriff of Rockwall County.
Defendant-Appellee, Bob Guzik is the Jail’s administrator. While not a county
employee like Eavenson and Guzik, Defendant-Appellee, Les Sandknop, D.O.
serves as the Jail’s contractual primary care physician.
       Blank suffers from “Crohn’s disease,” a chronic inflammatory bowel
disorder. Upon his arrest and detention on June 30, 2009, Blank informed the
Jail’s medical intake staff of his condition. The charge nurse, Linda Bell, R.N.
learned of Blank’s condition shortly after his arrival.2
       In his complaint, Blank alleges that Bell systematically denied him access
to his personal gastrointestinal specialist, and to his pre-detention regiment of
Crohn’s medications on his desired timetable. As a result, Blank alleges that he
suffered “serious complications,” including “heavy internal bleeding.” After an
August 5, 2009 hearing before the U.S. District Court for the Eastern District of
Texas in the child pornography proceedings, the magistrate judge ordered the




amended complaint Blank filed on November 28, 2011. Blank’s appellate briefs contain
additional factual allegations that did not appear in his pleadings. We do not credit these
additional allegations on appeal. See Vornado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)
(per curiam) (citations omitted).
       2
         Bell is not a party to this appeal. However, Blank named Bell as a defendant in the
district court proceedings. Along with Eavenson, Guzik, and Sandknop (the “current
Appellees”), Bell moved for dismissal. The district court granted dismissal with prejudice to
the three current Appellees, and later granted their subsequent motions for entry of final
judgment. However, unlike the current Appellees’ motions, Bell’s motion turned on her
assertion of qualified immunity. The district court denied Bell’s motion without prejudice, and
granted Bell’s alternative motion, pursuant to Federal Rule of Civil Procedure (“FRCP”) 7(a),
for Blank to file a reply concerning qualified immunity. While Blank failed to file that reply,
the district court proceedings involving Bell continue to the present date.

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U.S. Marshals to ensure that Blank’s Crohn’s disease was “thoroughly addressed
and properly treated” while Blank remained in the Jail’s custody.
        Thereafter, the Jail arranged for Sandknop to examine Blank on August
11, 2009, August 26, 2009, February 23, 2010, and March 9, 2010. Blank alleges
that Sandknop—who is not a gastrointestinal specialist—removed him from his
pre-detention Crohn’s medications, failed to conduct a full physical examination,
and failed to prescribe appropriate replacement Crohn’s medications. While
Sandknop drew a blood sample during the February 23 examination, Blank
alleges that the doctor failed to check him for intestinal swelling.         While
Sandknop prescribed medications for Blank’s symptoms, Blank alleges that
Sandknop refused to refer him to a specialist.
        At another child pornography hearing before the Eastern District of Texas,
the magistrate judge ordered that Blank be examined by his personal specialist.
Blank alleges that Bell failed to comply with the magistrate judge’s order. On
March 13, 2010, Blank was admitted to the local emergency room with a fever
of 104.2° F.     The on-call doctor advised that Blank be examined by a
gastrointestinal specialist within three days.
        Nine days later, on March 22, 2010, Blank was taken to a gastrointestinal
specialist (not his personal specialist). Rockland County Sheriff’s Deputies
escorted Blank to the examination. There, the specialist advised that Blank be
admitted to a hospital for uninterrupted treatment. Blank alleges that Bell
declined to comply with the specialist’s advice.
        On April 5, 2010, Bell again was admitted to the local emergency room,
this time with severe dehydration, malnourishment, hemorrhaging, and anemia.
Bell remained admitted through April 13, 2010, where he was fed by intravenous
drip.
        On April 14, 2010, upon learning of the Jail’s handling of Blank’s medical
condition,     the   magistrate     judge    ordered    Blank’s     release—with

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monitoring—pending his trial on the child pornography charges. Upon his
monitored release, Blank was examined by his personal gastrointestinal
specialist, who advised Blank that he had suffered permanent scarring of his
small intestine and permanent damage to his kidneys. Allegedly, the specialist
also advised Blank that Sandknop had prescribed him improper medications for
his symptoms.
                                 II. PROCEEDINGS
       On June 17, 2011, Blank filed the instant suit in the U.S. District Court
for the Northern District of Texas, pursuant to 42 U.S.C. § 1983, alleging that
Sandknop and Bell had been deliberately indifferent to the risks posed by his
Crohn’s disease.       Blank further alleged that Eavenson and Guzik had
inadequately trained and supervised Bell and Sandknop. Finally, Bell alleged
that Eavenson and Guzik had failed to create or enforce a policy of adequate
supervision of Bell and Sandknop. Put differently, Blank’s final allegation was
that Eavenson and Guzik had implemented a policy of deliberate indifference to
the risks posed by Bell and Sandknop’s inadequate supervision of him.3
       Sandknop moved to dismiss, arguing that, at best, Blank had stated a
claim for medical negligence, and that Blank had not pled sufficient non-
conclusory allegations to meet the relatively heightened standard to state a
claim for deliberate indifference to medical risk.4 Eavenson and Guzik also
moved to dismiss, arguing that vicarious liability cannot lie in Section 1983
actions. With respect to Blank’s claims for inadequate training/supervision,


       3
         To be clear, the distinction between (i) Blank’s claims against Eavenson and Guzik
for inadequate training/supervision; and (ii) Blank’s claims against Eavenson and Guzik for
deliberate indifference to inadequate supervision, hinged on the defendants’ personal
participations in the alleged behaviors. We address this distinction in greater detail below.
Blank proceeded against all four defendants in their individual capacities for money damages.
       4
          Sandknop also argued that he had not acted under color of state law. The district
court rejected this argument, which Sandknop does not pursue on appeal.

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Eavenson and Guzik argued that Blank had insufficiently alleged their personal
involvement and that, in general, his allegations were vague and conclusory.
With respect to Blank’s claims for deliberate indifference to inadequate
supervision, Eavenson and Guzik again argued that Blank’s allegations were
vague and conclusory. Blank filed a seventeen-page response and six-page sur-
reply in opposition to the motions to dismiss, in which he made additional
factual allegations that had not appeared in his pleadings.
         In written recommendations dated February 14, 2012, the magistrate
judge issued findings of facts and conclusions of law. Providing Blank leeway as
a pro se litigant,5 the magistrate judge ordered Blank to file an amended
complaint against Sandknop within fourteen days.                     The magistrate judge
otherwise recommended that the district court grant Eavenson, Guzik, and
Sandknop’s motions to dismiss. Concerning Eavenson and Guzik, the district
court declined to order an amended complaint because Blank already had
“alleged his best case against [those] Defendants, and the undersigned can
conceive of no basis on which he could recover. . . .” While Blank filed timely
objections to the magistrate judge’s recommendations, he failed to file an
amended complaint against Sandknop.
         On March 1, 2012, the district court adopted the magistrate judge’s
recommendations. The district court dismissed all claims against Eavenson,
Guzik, and Sandknop with prejudice, and granted those defendants’ subsequent
motions for entry of final judgment.
         Blank timely appealed. As explained above in footnote 2, proceedings
against Bell continue in district court. Therefore, Bell is not a party to this
appeal.
                                  III. Standard of Review

         5
             Blank presently is represented by counsel in the district court proceedings against
Bell.

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      We review de novo the district court’s grant of a motion to dismiss.
Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356, 357 (5th Cir. 2012) (per
curiam) (citations omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and
internal quotation marks omitted). “The issue is not whether the plaintiff will
ultimately prevail, but whether he is entitled to offer evidence to support his
claim.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)
(citation omitted).
      “In analyzing [a] complaint, we will accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Id. (citation omitted).
That said, “conclusory allegations will not suffice to prevent a motion to dismiss,
and neither will unwarranted deductions of fact.”           U.S. ex rel. Willard v.
Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003) (alteration,
citation, and internal quotation marks omitted). Rather, “[f]actual allegations
must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful
in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and
footnote omitted).
                               IV. DISCUSSION
A.    Claim Against Sandknop for Deliberate Indifference to Medical
      Risk
      1.   Applicable Law
      “A pretrial detainee’s constitutional right to medical care, whether in
prison or other custody, flows from the . . . due process guarantees of the
Fourteenth Amendment.” Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir.
2000) (footnote omitted) (analogizing to a post-trial prisoner’s Eight Amendment
protection from cruel and unusual punishment). “Liability for failing to provide


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such care attaches if the plaintiff can show that a state official acted with
deliberate indifference to a substantial risk of serious medical harm and that
injuries resulted.” Id. (citation omitted).
      “Deliberate indifference requires that the official have subjective
knowledge of the risk of harm.” Id. (citation and internal quotation marks
omitted). “Mere negligence will not suffice, and deliberate indifference, i.e., the
subjective intent to cause harm, cannot be inferred from a failure to act
reasonably.” Id. (alterations, citations, and internal quotation marks omitted).
“To show subjective deliberate indifference, a plaintiff must present evidence”:
(i) “that each defendant had subjective knowledge of facts from which an
inference of substantial risk of serious harm could be drawn”; (ii) “that each
defendant actually drew that inference”; and (iii) “that each defendant’s response
to the risk indicates that the [defendant] subjectively intended that harm occur.”
Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009) (per curiam) (citation and
internal quotation marks omitted).
      “Deliberate indifference is an extremely high standard to meet.” Domino
v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). “It is
indisputable that an incorrect diagnosis by prison medical personnel does not
suffice to state a claim for deliberate indifference.” Id. (citation omitted).
“Rather, the plaintiff must show that the officials refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any serious medical
needs.” Id. (citation and internal quotation marks omitted). A prison medical
official’s “failure to alleviate a significant risk that the official should have
perceived, but did not is insufficient to show deliberate indifference.” Id. (citing
Farmer v. Brennan, 511 U.S. 825, 838 (1994)) (alteration and internal quotation
marks omitted).



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       Indeed, “the question whether . . . additional diagnostic techniques or
forms of treatment is indicated is a classic example of a matter for medical
judgment.” Estelle v. Gamble, 429 U.S. 97, 107 (1976). The medical decision not
to order additional diagnostic techniques or forms of treatment does not
represent deliberate indifference to a medical risk. See id. “At most it is medical
malpractice, and as such the proper forum is the state court under the Texas
Tort Claims Act.” Id. (citing Tex. Rev. Civ. Stat. Ann. art. 6252-19, § 3 (West
1976), and noting that “this statute can be used by prisoners to assert
malpractice claims”).6
       2.     Analysis
       The tension of this issue is as follows: It is true that the mere provision
of medical treatment does not per se preclude a finding of deliberate indifference,
and that deliberate indifference may be found if the treatment provided
evidences (i) the conscious disregard of (ii) a serious medical need. See Lawson
v. Dallas Cnty., 286 F.3d 257, 262-63 (5th Cir. 2002).7 Here, the magistrate
judge from the Eastern District of Texas—a layman with respect to the medical
field—found Blank’s need for treatment so apparent that he ordered Blank’s
monitored release from pre-trial detention.
       Notwithstanding the magistrate judge’s order, it only ensures that a
deliberate indifference finding is not per se precluded. Blank still must have



       6
          In 1985, the Texas legislature repealed Article 6252-19, and re-codified it as part of
the newly-enacted Civil Practice and Remedies Code. This repeal and re-codification was part
of “a topic-by-topic revision of the state’s general and permanent statute law without
substantive change.” See Tex. Civ. Prac. & Rem. Code Ann. § 1.001(a) (West 2013). Section
3 of Article 6252-19 was scattered among multiple sections of the Civil Practice and Remedies
Code. See id. Disposition Table. However, the corresponding provision that is applicable here
can be found at Section 101.021. See id. § 101.021 (“Governmental Liability”).
       7
         “A serious medical need is one for which treatment has been recommended or for
which the need is so apparent that even laymen would recognize that care is required.” Gobert
v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006) (citation omitted).

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pled “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678 (citation and internal quotation
marks omitted).
       We assume without deciding that the magistrate judge’s order is
tantamount to a finding that Blank established a sufficient basis for the “serious
medical need” prong from Lawson. Blank, however, still makes no allegation
sufficient to satisfy the “conscious disregard” prong. To state a facially plausible
claim against Sandknop, Blank must satisfy both prongs from Lawson.
       Sandknop examined Blank on August 11, 2009, August 26, 2009, February
23, 2010, and March 9, 2010.            As documented above, Blank alleges that
Sandknop removed him from his pre-detention Crohn’s medications, failed to
conduct a full physical examination, and failed to prescribe appropriate
replacement Crohn’s medications, causing, inter alia, permanent scarring of
Blank’s small intestine and permanent damage to his kidneys. Additionally,
Blank alleges that Sandknop failed to check him for intestinal swelling and
refused to refer him to a specialist. This is the full extent of the facts Blank
alleges against Sandknop. The remaining facts alleged in Blank’s complaint are
applicable only to Bell.
       Without more—even accounting for the fact that Blank is a pro se
litigant—Blank cannot not establish “conscious disregard” on the part of
Sandknop. Like the litigant in Gamble, Blank perhaps could establish serious
medical malpractice in a Texas Tort Claims Act action. However, he may not
use Section 1983 to assert deliberate indifference without stating even a single
non-conclusory allegation of “conscious disregard” of the applicable standard of
care (as opposed to simple deviation—even gross deviation—from that
standard).8

       8
       This is not to pre-judge the sufficiency of a Section 1983 claim against Bell, against
whom Blank may have sufficiently alleged “conscious disregard.” Since it is not before us, we

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       The district court rightly dismissed Blank’s claim against Sandknop for
deliberate indifference to medical risk.
B.     Claims Against Eavenson and Guzik
       1.     Claims for Inadequate Training/Supervision
       “Under section 1983, supervisory officials are not liable for the actions of
subordinates on any theory of vicarious liability.” Thompkins v. Belt, 828 F.2d
298, 303 (5th Cir. 1987) (citations omitted). Nevertheless, a supervisor may be
held liable for the actions of subordinates if: (i) “the [supervisor] failed to
supervise or train the [subordinate]”; (ii) “a causal connection existed between
the failure to supervise or train and the violation of the plaintiff’s rights”; and
(iii) “the failure to supervise or train amounted to deliberate indifference to the
plaintiff’s constitutional rights.” Roberts v. City of Shreveport, 397 F.3d 287, 292
(5th Cir. 2005) (citing, inter alia, City of Canton, Ohio v. Harris, 489 U.S. 378
(1989)). A claim for failure to train or supervise still requires “overt personal
participation” by the supervisor—in that the supervisor must have overtly failed
to train or supervise the subordinate, even if it was the subordinate who directly
acted to inflict the constitutional deprivation upon the plaintiff. Cf. Thompkins,
828 F.2d at 304.
       Here, Blank did not plead allegations against Eavenson and Guzik
sufficient to form the basis of a claim under Roberts and Thompkins. Rather,
Blank’s allegations require the Court to infer and speculate as to any alleged
failures to train or supervise.
       As the Jail’s administrator, perhaps Guzik should have anticipated—or at
least known of—Bell and Sandknop’s alleged misdeeds. After all, Bell was
Guzik’s employee and Sandknop was Guzik’s contractor. Speculation, however,
is not the applicable pleading standard. See Twombly, 550 U.S. at 555 (citations



reach no definitive conclusion as to that question.

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and footnote omitted). Without a single allegation that Guzik had constructive
knowledge of Bell and Sandknop’s alleged failings, let alone that Guzik was
deliberately indifferent to such knowledge or that additional training or
supervision would have made a difference, Blank cannot state a cognizable claim
against Guzik under Roberts and Thompkins.
      Any claim against Eavenson is even more speculative. Relative to Guzik,
Eavenson (Rockwall County’s Sheriff) is even further removed from Bell and
Sandknop’s activities at the Jail. Eavenson’s only conceivable connection to
Blank’s complained-of activities is that Sheriff’s Deputies had escorted Blank to
his March 22, 2010 examination by a gastrointestinal specialist, who had
advised that Blank be admitted to a hospital for uninterrupted treatment.
Blank alleges that Bell declined to comply with the specialist’s advice.
      Let us assume arguendo, without deciding, that Bell indeed failed to
comply with the specialist’s advice, and that such failure was tortious. Blank
still did not allege that the Sheriff’s Deputies would or should have known that
Bell failed to comply, or that Eavenson would or should have learned that
information from the Deputies. Eavenson is simply too far removed from Bell
and Sandknop’s alleged conduct, at least as stated in Blank’s pleadings.
Accordingly, Blank cannot state a cognizable claim against Eavenson under
Roberts and Thompkins.
      The district court rightly dismissed Blank’s claims against Eavenson and
Guzik for inadequate training/supervision.
      2.   Claims for Deliberate Indifference to Inadequate
           Supervision
      “Supervisory liability exists even without overt personal participation in
the offensive act if supervisory officials implement a policy so deficient that the
policy itself is a repudiation of constitutional rights and is the moving force of [a]
constitutional violation.” Thompkins, 828 F.2d at 304 (citing, inter alia, Monell


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v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978)) (footnote and internal
quotation marks omitted).9 In order to be liable on such a theory of deliberate
indifference to inadequate supervision, the supervisory officials must have had
actual or constructive knowledge of the deficient policy at issue. See Bennett,
735 F.2d at 862.
         Here, in Paragraph 6 of his complaint, Blank alleged that Eavenson had
violated his Due Process rights “with deliberate indifference” by “fail[ing] to
create a policy to protect those rights” and by “fail[ing] to enforce a policy already
created that would have [protected those rights].”                In Paragraph 7 of his
complaint, Blank stated an identical allegation against Guzik. Nowhere in his
complaint, nor in his response/sur-reply to the motions to dismiss, did Blank
meaningfully develop these general allegations.
         “[C]onclusory allegations will not suffice to prevent a motion to dismiss,
and neither will unwarranted deductions of fact.” Willard, 336 F.3d at 379
(alteration, citation, and internal quotation marks omitted). Therefore, the
district court rightly dismissed Blank’s claims against Eavenson and Guzik for
deliberate indifference to inadequate supervision.
                                   V. CONCLUSION
         For the foregoing reasons, we AFFIRM the final judgments of the district
court.




         9
         A policy includes a “persistent, widespread practice of [municipal] officials or
employees, which, although not authorized by officially adopted and promulgated policy, is so
common and well settled as to constitute a custom that fairly represents municipal policy.”
See Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc) (per curiam).

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