     Case: 16-60246     Document: 00514728728        Page: 1    Date Filed: 11/19/2018




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 16-60246                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                  November 19, 2018
THAD EVERETT DELAUGHTER,
                                                                     Lyle W. Cayce
              Plaintiff - Appellant                                       Clerk


v.

RONALD WOODALL; MICHAEL HATTEN; STATE OF MISSISSIPPI,

              Defendants - Appellees




                  Appeal from the United States District Court
                    for the Southern District of Mississippi


Before HAYNES, HO, and DUNCAN, Circuit Judges.
HAYNES, Circuit Judge:
      Thad Everett Delaughter claims the defendants violated his Eighth
Amendment rights by failing to provide medically necessary hip replacement
and reconstructive surgery. Delaughter filed suit under 42 U.S.C. § 1983
against Michael Hatten, medical administrator at South Mississippi
Correctional Institution, and Dr. Ronald Woodall, who works for Wexford
Health Services, a medical services contractor for the Mississippi Department
of Corrections (“MDOC”). 1 Delaughter sought an injunction to obtain the



      1Delaughter also filed suit against Wexford Health Services, Christopher Epps,
Johnny Denmark, and the State of Mississippi. Delaughter voluntarily dismissed the first
     Case: 16-60246       Document: 00514728728          Page: 2     Date Filed: 11/19/2018



                                       No. 16-60246
surgery and damages for his pain and suffering. The district court 2 granted
summary judgment in favor of both defendants.
       On appeal, Delaughter argues the district court (1) improperly granted
summary judgment in favor of Hatten based on sovereign and qualified
immunity; (2) improperly concluded there was no genuine dispute of material
fact as to whether Dr. Woodall was deliberately indifferent to Delaughter’s
medical needs; and (3) abused its discretion in denying Delaughter’s motions
to appoint counsel. 3 For the reasons set forth below, we AFFIRM in part,
REVERSE in part, VACATE in part, and REMAND.
                        I. Factual and Procedural Background
       Delaughter suffers from rheumatoid arthritis and had hip replacement
surgery in 1992, prior to his incarceration.               In 2010, Delaughter began



three defendants, and the district court granted summary judgment for Mississippi.
Delaughter appeals only Hatten’s and Dr. Woodall’s dismissals.
       2 The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C.
§ 636(c) and Federal Rule of Civil Procedure 73. We will refer to the magistrate judge’s
decisions as decisions from the district court.
       3  We also address three motions that have been carried with the case. First, before
Delaughter was appointed appellate counsel, he moved for leave to file an untimely reply
brief. This motion was never filed because Delaughter failed to seek leave of the court.
Because a supplemental briefing schedule was set after Delaughter was appointed counsel,
we need not address the unfiled motion issue as it would be moot in any event. Second,
Delaughter filed a motion for injunctive relief pending appeal. Because we have resolved the
merits of Delaughter’s appeal, we deny his motion as moot. See FED. R. APP. P. 8(a)(1)(C).
Finally, Hatten filed a motion to supplement the record with additional, subsequent medical
records. Generally, we will not expand the record on appeal. See McIntosh v. Partridge, 540
F.3d 315, 327 (5th Cir. 2008). Here, Delaughter (confusingly) in his pro se response did not
oppose the motion. But he indicated his lack of opposition was based upon the belief that the
medical records support his claim that he requires surgery. Otherwise, he challenges the
content of the proposed supplemental material and Hatten’s characterization of the material,
alleging that the records reflect a miscommunication between the treating physician and
himself and disputing that the records show Delaughter is the cause of the delay.
(Additionally, oral argument drew out additional factual developments that should be
explored by the district court.) Because of this factual dispute, along with other factual
disputes discussed later in this opinion, it is improper to expand the record here. See Trinity
Indus., Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992). Deciding disputed facts is not the
office of a court of review. Thus, we deny Hatten’s motion to supplement the record.
                                              2
    Case: 16-60246    Document: 00514728728       Page: 3   Date Filed: 11/19/2018



                                   No. 16-60246
experiencing hip pain while incarcerated. Between November 2010 and March
2011, Dr. Woodall treated Delaughter with pain medication and steroid
injections on at least four separate occasions. According to Delaughter, Dr.
Woodall repeatedly assured Delaughter he would refer Delaughter to a
specialist, but no appointment was scheduled. Dr. Woodall asserts that he has
authority only to request referrals but not to schedule specialty consultations,
and that he put in such a request in June 2011. Delaughter eventually asked
Hatten to arrange a specialty consultation, and claims it was Hatten who
scheduled an appointment with Dr. Elliot Nipper, an orthopedic specialist.
      Delaughter first saw Dr. Nipper in the summer of 2011. Dr. Nipper
determined that Delaughter required hip replacement and reconstructive
surgery. Delaughter alleges this surgery was scheduled with Dr. Nipper for
October 2011, but the surgery was cancelled shortly before it was to occur.
Hatten claims Dr. Nipper cancelled the surgery but does not explain why Dr.
Nipper did so; Delaughter claims Dr. Nipper told him that “they are simply not
going to pay for [the surgery].”
      It is unclear what, if any, steps were taken regarding Delaughter’s
surgery between the fall of 2011 and 2013. In February and August 2013, Dr.
Woodall requested that Delaughter see an outside specialist, and Delaughter
saw Dr. Nipper again in September 2013. Dr. Nipper then requested that
MDOC refer Delaughter to the University of Mississippi Medical Center
(“UMMC”) for surgery.        MDOC claims that UMMC refused to accept
Delaughter as a patient but that, at least as of 2015, MDOC continued to
discuss surgery with UMMC. Delaughter’s medical records reflect that Dr.
Woodall continued to treat Delaughter with medication and steroid injections




                                        3
     Case: 16-60246      Document: 00514728728        Page: 4     Date Filed: 11/19/2018



                                     No. 16-60246
at least until 2015. 4 But Delaughter has yet to receive hip replacement and
reconstructive surgery.
       Based on the delay in surgery, Delaughter filed suit under 42 U.S.C.
§ 1983 and the district court allowed him to proceed pro se in forma pauperis.
Delaughter alleged that Hatten and Woodall violated his Eighth Amendment
rights by acting with deliberate indifference toward his medical needs. He
sought injunctive relief to obtain the hip surgery and damages for pain and
suffering. Delaughter twice moved for appointment of counsel, but his motions
were denied. Hatten and Woodall then filed separate motions for summary
judgment, and the district court granted both. It held that Hatten was entitled
to sovereign immunity for claims against him in his official capacity and
qualified immunity for claims against him in his individual capacity, thus
rendering him wholly immune from suit. It also held that Delaughter had
failed to create a genuine issue of material fact about whether Dr. Woodall was
deliberately indifferent to Delaughter’s medical needs.             Delaughter timely
appealed and was appointed pro bono counsel on appeal.
                                 II. Standard of Review
       We review a grant of summary judgment de novo, applying the same
standard as the district court. Cass v. City of Abilene, 814 F.3d 721, 728 (5th
Cir. 2016) (per curiam). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The facts are
construed in the non-movant’s favor. Cass, 814 F.3d at 728.




      4 In 2015, Delaughter was transferred to a different prison where Dr. Woodall alleges
(and Delaughter raises no evidence to the contrary) that he does not see patients.
                                            4
    Case: 16-60246     Document: 00514728728     Page: 5   Date Filed: 11/19/2018



                                  No. 16-60246
      We review the denial of a motion to appoint counsel for abuse of
discretion. Jackson v. Dall. Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986) (per
curiam).
                                   III. Discussion
      A. Claim against Dr. Ronald Woodall
      Delaughter argues that Dr. Woodall was deliberately indifferent to his
medical needs because Dr. Woodall knows Delaughter requires surgery but has
not received it; thus, the district court erroneously granted summary judgment
in Dr. Woodall’s favor.
      “A prison official violates the Eighth Amendment’s prohibition against
cruel and unusual punishment when his conduct demonstrates deliberate
indifference to a prisoner’s serious medical needs, constituting an ‘unnecessary
and wanton infliction of pain.’” Easter v. Powell, 467 F.3d 459, 463 (5th Cir.
2006) (per curiam) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)); see also
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). “[D]elay in medical care can
only constitute an Eighth Amendment violation if there has been deliberate
indifference, which results in substantial harm.” Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993). A prison official acts with deliberate indifference
“only 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); see also Mendoza, 989 F.2d at
195. In contrast, “an inadvertent failure to provide adequate medical care”
does not violate the Eighth Amendment. Estelle, 429 U.S. at 106. Thus, mere
disagreement with one’s medical treatment is insufficient to show deliberate
indifference, as are claims based on unsuccessful medical treatment,
negligence, or medical malpractice. Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991) (per curiam).


                                        5
    Case: 16-60246        Document: 00514728728       Page: 6   Date Filed: 11/19/2018



                                       No. 16-60246
      The district court properly granted summary judgment in Dr. Woodall’s
favor because there is no evidence that Dr. Woodall failed to take reasonable
measures to abate a substantial risk of serious harm to Delaughter. The record
supports Dr. Woodall’s assertion that he has no authority to authorize,
schedule, or pay for Delaughter’s surgery. The record includes Dr. Woodall’s
unrebutted affidavit in which he states that he is neither equipped nor
authorized to perform surgery, nor can he schedule, authorize, or arrange for
off-site surgery. Since the lack of surgery is the only claimed “deliberate
indifference,” and this is out of Dr. Woodall’s hands, we conclude that
Delaughter did not raise a fact issue sufficient to defeat summary judgment.
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement
is an essential element of a civil rights cause of action.”). Therefore, we affirm
the district court’s grant of summary judgment in Dr. Woodall’s favor.
      B. Claims against Michael Hatten
      1. Sovereign Immunity
      Delaughter argues the district court erroneously concluded that Hatten
was entitled to sovereign immunity from Delaughter’s injunctive claims
against Hatten in his official capacity. Because the district court failed to
address the Ex parte Young 5 exception to sovereign immunity for claims for
prospective injunctive relief, we agree that the injunctive relief claim should
be remanded.
      “The Eleventh Amendment does not protect state officials from claims
for prospective relief when it is alleged that the state officials acted in violation
of federal law.” Warnock v. Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996) (citing,
inter alia, Ex parte Young, 209 U.S. 123, 155–56 (1908)). “In determining
whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to


      5   Ex parte Young, 209 U.S. 123 (1908).
                                                 6
     Case: 16-60246       Document: 00514728728         Page: 7     Date Filed: 11/19/2018



                                       No. 16-60246
suit, a court need only conduct a ‘straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md.,
535 U.S. 635, 645 (2002) (alterations in the original) (quoting Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 266 (1997)); Air Evac EMS Inc. v. Tex.
Dep’t of Ins., Div. of Workers Comp., 851 F.3d 507, 515–16 (5th Cir. 2017). It
is not a merits inquiry. Verizon Md., Inc., 535 U.S. at 646.
       Liberally construing Delaughter’s pro se complaint, see Mayfield v. Tex.
Dep’t of Criminal Justice, 529 F.3d 599, 604 (5th Cir. 2008), he alleges an
ongoing violation of federal law and seeks prospective injunctive relief;
Delaughter claims that defendants violated his Eighth Amendment rights by
failing to provide required hip surgery and requested in his prayer for relief
that he “receive the surgery that [he] need[s].” This straightforward inquiry
indicates the Ex parte Young exception applies here, so, by failing to consider
the Ex parte Young exception, the district court incorrectly determined it
lacked power to grant an injunction. Because the district court did not reach
whether equitable relief was proper, we do not address that question here, and
instead remand so the district court can consider the issue in the first
instance. 6
       2. Qualified Immunity
       Delaughter argues the district court incorrectly determined that Hatten
in his individual capacity was entitled to qualified immunity because
Delaughter established that Hatten unjustifiably delayed required surgery,




       6 Hatten claims that the district court was not required to undertake an Ex parte
Young analysis because it concluded that Delaughter failed to establish a deliberate
indifference claim; thus, there was no ongoing violation of federal law. Given our disposition
of this merits issue (that fact issues exist regarding an Eighth Amendment violation), that
argument fails.
                                              7
    Case: 16-60246     Document: 00514728728      Page: 8   Date Filed: 11/19/2018



                                  No. 16-60246
and it is clearly established that prison officials violate the Eighth Amendment
by doing so.
      Because Hatten invoked qualified immunity, Delaughter has the burden
to demonstrate “(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.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); Cass, 814 F.3d at 728.
We address each prong in turn.
      a. Violation of a Constitutional Right
      As noted above, delay in medical care constitutes deliberate indifference
in violation of the Eighth Amendment if a prison official disregards a
substantial risk of serious harm by failing to take reasonable measures to
abate it, and the delay results in substantial harm. Mendoza, 989 F.2d at 195.
But a mere disagreement with one’s medical treatment is insufficient to show
deliberate indifference, as are claims based on unsuccessful medical treatment,
negligence, or medical malpractice. Varnado, 920 F.2d at 321.
      Hatten argues that Delaughter’s surgery has been delayed only because
Dr. Nipper cancelled the surgery and UMMC refused to accept Delaughter as
a patient. Because he contends that these are medical-judgment decisions,
Hatten concludes that the delay in surgery does not constitute deliberate
indifference and the district court properly granted summary judgment in his
favor. We disagree.
      First, we have previously found that claims like Delaughter’s do not
constitute “mere disagreement with one’s medical treatment.” See Easter, 467
F.3d at 463–64 (affirming the district court’s denial of summary judgment
where a prisoner brought claims that a prison nurse refused to provide
nitroglycerin for chest pain—the set course of treatment for chest pain); see
also Lawson v. Dall. Cty., 286 F.3d 257, 263 (5th Cir. 2002) (holding the district
court did not err by finding deliberate indifference where prison nurses had
                                        8
     Case: 16-60246       Document: 00514728728          Page: 9     Date Filed: 11/19/2018



                                       No. 16-60246
been instructed to change Lawson’s dressing three times a day, and provide
regular medication, a foam mattress, and hydrotherapy, but did none of these
things).
       Here, Dr. Nipper determined in 2011 that Delaughter requires hip
replacement and reconstructive surgery. No party points to evidence that any
medical professional has disagreed with Dr. Nipper. Thus, Delaughter’s claim
arises from the fact he has yet to receive a prescribed course of treatment; it
does not arise from his subjective opinion of the sufficiency of his medical
treatment that is either contradicted or unsupported by medical professionals.
       Second, it is not clear that Dr. Nipper’s cancellation of Delaughter’s
surgery and UMMC’s failure to accept Delaughter as a patient were medical-
judgment decisions. Indeed, Delaughter claims these decisions were made
because MDOC refuses to pay for his surgery. If so, the delay could under
certain circumstances “evince a wanton disregard for [a] serious medical
need[].” See Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (noting that
a plaintiff shows deliberate indifference by demonstrating the 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”). 7



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. See
Thibodeaux v. Thomas, 548 F. App’x 174, 175 (5th Cir. 2013) (per curiam) (concluding that
Thibodeaux stated a colorable deliberate indifference claim where his surgery was delayed
because prison officials sent him to the wrong facility and failed to file the appropriate
paperwork); Reed v. Cameron, 380 F. App’x 160, 162 (3d Cir. 2010) (per curiam) (noting the
deliberate indifference standard is satisfied when a prison official “delays necessary medical
treatment based on a non-medical reason”) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999)); Blackmore v. Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004) (“When prison
officials are aware of a prisoner’s obvious and serious need for medical treatment and delay
medical treatment of that condition for non-medical reasons, their conduct in causing the
delay creates the constitutional infirmity.”); Clinkscales v. Pamlico Corr. Facility Med. Dep’t,
No. 00-6798, 2000 WL 1726592, at *2 (4th Cir. Nov. 21, 2000) (per curiam) (unpublished)
                                               9
    Case: 16-60246       Document: 00514728728          Page: 10     Date Filed: 11/19/2018



                                      No. 16-60246
       Factual disputes about the reason for the delay prevent us from
determining whether Hatten violated Delaughter’s constitutional rights.
Delaughter testified that Dr. Nipper told him “they”—presumably MDOC—
would not pay for his surgery, and Delaughter’s medical records reflect that
Dr. Nipper told Delaughter that Delaughter’s insurance would not pay for a
CT scan or custom components. Hatten produced an affidavit from Dr. Gloria
Perry, Chief Medical Officer of the MDOC Office of Medical Compliance, in
which she states that “the cost of the surgery was not a factor for MDOC in the
referral of Inmate Delaughter to UMMC.” But Dr. Perry’s affidavit fails to
explain why Dr. Nipper cancelled the surgery, nor does it conclusively establish
that UMMC’s refusal to accept Delaughter was a matter of medical judgment. 8
Therefore, we conclude the district court erred in holding there were no
genuine issues of material fact about whether Hatten violated Delaughter’s
constitutional rights. 9 See Miles v. Rich, 576 F. App’x 394, 397 (5th Cir. 2014)
(per curiam) (affirming district court’s denial of summary judgment because
there were questions of fact about “the absence of knee surgery”); Rodriguez v.
Woods, No. 98-40231, 1999 WL 197117, at *1 (5th Cir. Mar. 18, 1999) (per
curiam) (unpublished) (noting there was a genuine issue of material fact about
whether prison officials were deliberately indifferent for failing to treat



(agreeing with the Third Circuit that “prison officials may not interminably delay medical
treatment . . . based on arbitrary and burdensome procedures”).
       8 The record is unclear as to the explanation for the delay in surgery between Dr.
Nipper’s cancellation in the fall of 2011 and the first time MDOC contacted UMMC, which,
it appears from Dr. Nipper’s notes, occurred in the fall of 2013.
       9 In addition, there may be an issue about whether Hatten has authority to authorize
surgery for Delaughter. Delaughter offers evidence that Hatten has this authority because
Hatten is the medical administrator and arranged for Delaughter to see Dr. Nipper. Hatten
claims that, because he is not a doctor, he has no authority to decide the proper medical care
for Delaughter. But that is a different issue than whether he has authority to authorize
medical care that a medical professional has deemed proper, and Hatten does not address
that issue or point to record evidence to the contrary of Delaughter’s evidence.
                                             10
   Case: 16-60246     Document: 00514728728      Page: 11   Date Filed: 11/19/2018



                                  No. 16-60246
Rodriguez’s knee because the record failed to explain why he never received
treatment).
      b. Clearly established law
      Having established that summary judgment on the first prong was
incorrect, we turn to the second prong of the qualified immunity analysis.
Delaughter bears the burden of pointing out the clearly established law and
raising a fact issue as to its violation. Thompson v. Mercer, 762 F.3d 433, 337,
441 (5th Cir. 2014). Clearly established law is determined by “controlling
authority—or a robust consensus of persuasive authority—that defines the
contours of the right in question with a high degree of particularity.” Morgan
v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (alterations, footnote, and
internal quotations omitted). This means “the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right,” although it is not necessary for controlling precedent
to have held that the official’s exact act was unlawful. Brown v. Miller, 519
F.3d 231, 236–37 (5th Cir. 2008) (quoting Atteberry v. Nocona Gen. Hosp., 430
F.3d 245, 256 (5th Cir. 2005), abrogated on other grounds by Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2475 (2015)). The central concern is whether the
official has fair warning that his conduct violates a constitutional right. Cooper
v. Brown, 844 F.3d 517, 524 (5th Cir. 2016).
      Delaughter claims it is clearly established that an unjustified delay in
obtaining necessary reconstructive surgery for a prisoner violates the Eighth
Amendment rights of the prisoner. In support, Delaughter points to three of
our unpublished cases in which we concluded that an unjustified delay in
surgery could constitute deliberate indifference. See Miles 576 F. App’x at 396–
97 (affirming district court’s denial of summary judgment where an orthopedic
doctor told Miles he needed replacement knee surgery and where he had yet to


                                       11
    Case: 16-60246       Document: 00514728728          Page: 12     Date Filed: 11/19/2018



                                       No. 16-60246
receive it at least three years later 10); Rodriguez, 1999 WL 197117, at *1
(vacating district court’s grant of summary judgment where Rodriguez had
been approved for surgery but was released before he received it, at least two
years later); Rhett v. Scott, No. 97-10910, 1998 WL 307736, at *1 (5th Cir. May
21, 1998) (per curiam) (unpublished) (determining claim arising from a 14-
month delay in receiving a knee brace was not a frivolous deliberate
indifference claim).
       As we have noted, it is clearly established that delaying medical care can
constitute an Eighth Amendment violation if the prison official “knows that
[the] inmate[] face[s] a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it,” and the delay results
in substantial harm. Mendoza, 989 F.2d at 195. This precedent, combined
with the cases cited above, which specifically address delays of surgical
procedures, constitutes a combination of precedential authority and a robust
consensus of unpublished authority, and convinces us that Hatten had fair
warning that an unjustified delay in surgery is unconstitutional. See Cooper
844 F.3d at 525 n.8 (noting that although an unpublished case may not create
clearly established law, it may be used to illustrate clearly established law).
Therefore, if the fact issues under prong one were resolved in Delaughter’s
favor, Hatten’s conduct would violate clearly established law and he would not
be entitled to qualified immunity. Thus, we reverse the district court’s ruling
and remand the claims against Hatten for further proceedings.




       10The law must be clearly established at the time of the alleged violation. See Cooper,
844 F.3d at 524. Thus, because Miles was decided in 2014, it can illustrate clearly established
law only with respect to the delays in Delaughter’s surgery that occurred after the date of
that case.
                                              12
   Case: 16-60246    Document: 00514728728        Page: 13    Date Filed: 11/19/2018



                                   No. 16-60246
      C. Appointment of Counsel
      Delaughter claims that the district court abused its discretion by twice
denying his motions for appointment of counsel.              There is no right to
appointment of counsel in civil cases, but a district court may appoint counsel
if doing so “would aid in the efficient and equitable disposition of the case.”
Jackson, 811 F.2d at 262. To make this determination, district courts consider
            (1) the type and complexity of the case; (2) whether the
            indigent is capable of adequately presenting his case;
            (3) whether the indigent is in a position to investigate
            adequately the case; and (4) whether the evidence will
            consist in large part of conflicting testimony so as to
            require skill in the presentation of evidence and in
            cross examination.
Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (citations omitted).
Generally, appointment of counsel should be reserved for cases presenting
“exceptional circumstances.” Id.
      The district court determined that no exceptional circumstances existed
because pro se prisoner plaintiffs routinely litigated the types of issues
presented by Delaughter’s case, the issues were not particularly complex, and
Delaughter had proven himself capable of self-representation.
      In light of our resolution of this case, these conclusions deserve another
look by the district court on remand and, specifically, consideration should be
given to the appointment of pro bono counsel on remand. As part of the revised
analysis, the district court should consider that Delaughter’s claim—that he
has been denied medically necessary surgery for seven years—presents
circumstances different than the usual prisoner-deliberate-indifference claim.
We have previously vacated a district court’s denial of a motion to appoint
counsel for similar reasons. See Garner v. Morales, No. 07-41015, 2009 WL
577755, at *6 (5th Cir. Mar. 6, 2009) (per curiam) (unpublished) (holding that
the district court did not conduct a proper analysis of the motion to appoint
                                       13
   Case: 16-60246    Document: 00514728728      Page: 14   Date Filed: 11/19/2018



                                 No. 16-60246
counsel because Garner’s case was “not the usual one” and the district court
had “failed to take into account the particular complexity and legal novelty” of
the case). Thus, counsel might assist in handling the particular complexities
of this case; indeed, we benefitted from Delaughter’s appointed appellate
counsel.
      The district court should also consider the fact that the pursuit of this
surgery has taken unusual twists and turns making the difficult task of
gathering evidence as a pro se prisoner far more difficult than usual. See Moore
v. Mabus, 976 F.2d 268, 272 (5th Cir. 1992) (noting one reason for appointing
counsel was that “the extensive resources required to pursue properly the
issues . . . far exceed the capability and resources of a prisoner”). Thus, we
conclude that given the circumstances of this case, appointment of pro bono
counsel might “advance the proper administration of justice.” Ulmer, 691 F.2d
at 213.    Accordingly, we vacate the district court’s judgment denying
appointment of counsel and remand for reconsideration in light of this opinion.
                                  IV. Conclusion
      For the reasons stated above, we AFFIRM the district court’s grant of
summary judgment in favor of Dr. Woodall, and REVERSE the district court’s
grant of summary judgment in favor of Hatten, in both capacities. We VACATE
the denial of Delaughter’s motions for appointment of counsel and REMAND.




                                      14
   Case: 16-60246    Document: 00514728728     Page: 15   Date Filed: 11/19/2018



                                    No. 16-60246
JAMES C. HO, Circuit Judge, concurring in the judgment:
      The court today remands this case for further proceedings against
Michael Hatten, the medical administrator at South Mississippi Correctional
Institution, where Thad Delaughter is currently serving his sentence. I write
separately to draw attention to Hatten’s unopposed motion to supplement the
record with additional medical records, which the court today denies. Unless
the medical records are somehow discredited, they would appear to undercut
Delaughter’s claims of unjustified delay or outright denial of medically
necessary surgery. It is with the understanding and belief that these medical
records can and will be explored on remand that I concur in the judgment.
      Hatten submits medical records concerning physician visits that
occurred after final judgment was entered in this case on March 18, 2016.
Joined by the State of Mississippi, Hatten contends, with some force, that these
medical records “directly rebut Delaughter’s contention that he is being denied
hip replacement surgery due to Defendants-Appellees’ refusal to pay for the
surgery.”
      Delaughter indicated in a handwritten response that he “does not object
to the Appellees’ Motion to Supplement the Record.” Nor does he dispute the
authenticity of the supplemental medical records.
      Hatten’s motion explains that, on April 5, 2016, “his treating doctors
were ready to proceed ahead with hip replacement surgery, but were forced to
postpone surgery because Delaughter admitted he had recently smoked
marijuana.” Delaughter does not dispute this. And the supplemental medical
records confirm it. The records from his physician consultation on April 5,
2016, state that Delaughter was advised that “he needs to be completely drug
and nicotine free prior to us proceeding,” and that he “openly admits to using
marijuana.” So it appears by all accounts that Delaughter’s own conduct


                                         15
   Case: 16-60246     Document: 00514728728      Page: 16   Date Filed: 11/19/2018



                                     No. 16-60246
prevented him from receiving the treatment he seeks, at least as of April 2016,
the month that he filed notice of this appeal.
      In addition, Delaughter’s medical records further indicate that, on
January 5, 2017, he informed his physician that he has “[n]o acute
issues/complaints,” and that furthermore, he “expects to be released in the next
5 years if all goes as planned.” This is significant because it appears that
Delaughter agreed to postpone any surgery until after his anticipated release.
As the medical records from his physician consultation on January 5, 2017,
explain:
      We discussed the severe complexity of his issues with the patient.
      This would require a large reconstruction which would have
      significant intraoperative and postoperative risks. Given his
      current incarceration, he would likely not be able to receive the
      ideal postoperative care or likely any postoperative therapy. In
      light of this being a chronic issue, we discussed the need for
      delaying any operative intervention until he is released from
      prison. . . . He understood the need to wait until he is released from
      prison to maximize his chances of recovery. We encouraged him to
      remain drug and nicotine free in order to receive operative
      intervention. Patient understood and agreed with treatment plan
      going forward. He will follow up with us when he is released from
      prison.

      Delaughter does not contend that these medical reports are false or
fraudulent. Indeed, Delaughter offers no explanation whatsoever, other than
to state that the information contained in his medical records is “puzzling”
because he has “twelve more years to serve.”
      If it is true that Delaughter is the cause of his own delays—indeed, if it
is true that he has consented to postponing surgery until after his release—it
is difficult to see how he can prevail on his claim for injunctive relief and
damages for pain and suffering. These issues can and should be explored
further on remand. I concur in the judgment.

                                          16
