     Case: 17-40127      Document: 00514425220         Page: 1    Date Filed: 04/11/2018




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


                                    No. 17-40127
                                                                            FILED
                                                                        April 11, 2018
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
CARL ELMON HUNT,

                                                 Plaintiff-Appellant

v.

SARAH PIERSON, Medical Provider; PAMELA PACE, Practice Manager,
University of Texas Medical Branch; JOHN DOE, University of Texas Medical
Branch     Director;    WILLIAM       STEPHENS,    DIRECTOR,      TEXAS
DEPARTMENT           OF      CRIMINAL       JUSTICE,   CORRECTIONAL
INSTITUTIONS DIVISION; JOHN RUPERT, Senior Warden Coffield Unit;
CHRISTOPHER AMAHDRICK, Major, Texas Department of Criminal
Justice-Correctional Institutions Division,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CV-559


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Carl Elmon Hunt, Texas prisoner # 832307, appeals the dismissal of his
42 U.S.C. § 1983 complaint alleging deliberate indifference to his serious
medical needs in part pursuant to Federal Rule of Civil Procedure 12(b)(6) and

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40127    Document: 00514425220     Page: 2     Date Filed: 04/11/2018


                                 No. 17-40127

in part on Nurse Practitioner Sarah Pierson’s motion for summary judgment.
Hunt argues that the district court erred in granting Pierson summary
judgment and in determining that she was entitled to qualified immunity when
she took away his cane and his ground floor only housing restriction and failed
to provide him with adequate medical care after his fall.
      Rule 12(b)(6) dismissal
      Hunt’s brief addresses only the district court’s summary judgment
ruling. He has therefore waived review of the district court’s Rule 12(b)(6)
dismissals. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Hunt has moved this court for leave to file multiple, albeit untimely,
reply briefs that exceed the page limit in response to the briefs filed by the
appellees, as well as exhibits in support of his motion. The leave requested is
GRANTED in the interest of justice. However, Hunt’s attempt to address the
Rule 12(b)(6) dismissals in his reply briefs is unavailing because issues raised
for the first time in a reply brief are also waived. See Warren v. Chesapeake
Exploration, L.L.C., 759 F.3d 413, 420 (5th Cir. 2014).
      Summary judgment dismissal
      This court reviews a district court’s ruling on summary judgment de
novo, employing the same standard used by the district court. McFaul v.
Venezuela, 684 F.3d 564, 571 (5th Cir. 2012). A district court “shall grant
summary judgment 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 court must “draw all reasonable inferences in favor
of the nonmoving party” and “refrain from making credibility determinations
or weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 343 (5th Cir. 2007) (internal quotation marks and citations omitted). “[A]
party cannot defeat summary judgment with conclusory allegations,

                                       2
    Case: 17-40127     Document: 00514425220      Page: 3   Date Filed: 04/11/2018


                                  No. 17-40127

unsubstantiated assertions, or only a scintilla of evidence.”        Id. (internal
quotation marks and citation omitted). A genuine issue of fact does not exist
“if the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party.” City of Alexandria v. Brown, 740 F.3d 339, 350 (5th
Cir. 2014).
      Deliberate indifference
      As an inmate, Hunt had a clearly established Eighth Amendment right
not to be denied, by deliberate indifference, attention to his serious medical
needs. See Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Prison
officials violate the constitutional prohibition against cruel and unusual
punishment when they demonstrate deliberate indifference to a prisoner’s
serious medical needs, resulting in unnecessary and wanton infliction of pain.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). A prison official acts with deliberate
indifference only if “the official knows of and disregards an excessive risk to
inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see
Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994) (applying Farmer to a
denial-of-medical-care claim). “Deliberate indifference is an extremely high
standard to meet.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001). The plaintiff must establish that the defendants “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. (internal quotation marks and citation
omitted).
      Neither an incorrect diagnosis nor the failure to alleviate a significant
risk that an official should have perceived but did not is sufficient to establish
deliberate indifference. See id. Similarly, unsuccessful treatment, medical
malpractice, and acts of negligence do not constitute deliberate indifference;
“nor does a prisoner’s disagreement with his medical treatment, absent

                                        3
    Case: 17-40127    Document: 00514425220     Page: 4   Date Filed: 04/11/2018


                                 No. 17-40127

exceptional circumstances.” Gobert, 463 F.3d at 346; see Estelle v. Gamble,
429 U.S. 97, 105-06 (1976).
      Removal of the cane
      Hunt argues that because Pierson had treated him in the past, she knew
or should have known that he had been declared 70% disabled by the Veterans
Administration; and she was aware, or reasonably should have been aware,
that he suffered from schizophrenia, hepatitis, high blood pressure, and a heat-
related illness, all of which required him to take medications that caused
drowsiness and dizziness, thereby necessitating the use of a cane.         Hunt
contends that, given this knowledge, Pierson’s removing his cane after
observing him for mere seconds while he draped his cane on his wrist while
obtaining water from the water cooler at the nurses’ station constituted
deliberate indifference given that she unreasonably took action without
assessing his physical condition or reviewing his medical records. Moreover,
Hunt alleges that Dr. Thompson’s medical order provided that he be
permanently prescribed a cane and ground floor only housing restriction and,
despite her imputed knowledge of Dr. Thompson’s order, Pierson interfered by
removing his cane.
      Analysis
      The summary judgment evidence, viewed in the light most favorable to
Hunt, demonstrates that no genuine issue of fact exists regarding Pierson’s
alleged deliberate indifference. The summary judgment evidence established
that on November 12, 2013, Pierson observed Hunt walk into the clinic with
his cane hooked over his arm, with the end of the cane eight inches off of the
floor. She observed Hunt ambulating without the assistance of his cane around
the nurses’ station with no limping or bobbing, and she therefore removed his
cane pass.



                                       4
    Case: 17-40127    Document: 00514425220     Page: 5   Date Filed: 04/11/2018


                                 No. 17-40127

      Hunt saw Pierson two days later and sought to have his cane returned.
He advised that he had not been dizzy since he discontinued Lasix. Hunt
stated that he needed the cane for the degenerative disc disease in his back;
however, Pierson observed that he had walked in and out of the clinic several
times that day with no problems and no assistance. She therefore refused to
return the cane but prescribed him Meloxicam for the pain and swelling in his
left knee.
      On November 19, 2013, Hunt reported that he had fallen.             Nurse
Broadus attended the scene, confirmed that he did not hit his head, and noted
no dizziness. No injuries or bleeding were noted. Broadus contacted Pierson,
who ordered that Hunt be moved to a low housing row. Hunt was seen on
November 28, 2013, by Nurse Polk. Her examination revealed joint stiffness,
full range of motion in his upper and lower extremities, and full flexion of neck
and back, and also showed that his movement, gate, and posture were normal.
Hunt requested to be examined by another medical provider, specifically Dr.
Thompson, because he needed a cane.
      On December 4, 2013, Hunt saw Physician Assistant Copeland for
evaluation for a cane. Copeland noted that Hunt had a normal gait and was
able to transfer to the examination table with ease, and Copeland noted no
interim changes since Hunt’s mid-November examination. Copeland therefore
determined that a cane was not medically indicated at that time. Hunt made
no complaints to Copeland regarding injuries he allegedly sustained in his fall.
      Pierson saw Hunt again on March 4, 2014, for complaints that he wanted
his cane back, he had back and knee pain, and he wanted to change his blood
pressure medication. Pierson observed that he ambulated into the office with
a “shuffling awkward gait” and with no assistance. Her examination revealed
that his left leg was approximately a half-inch shorter than the right, that he



                                       5
       Case: 17-40127   Document: 00514425220      Page: 6   Date Filed: 04/11/2018


                                  No. 17-40127

had hip pain, and that he had limited flexion of the spine. His blood pressure
medication was modified, and Pierson issued him a cane pass for 12 months.
        Hunt’s argument that Pierson’s actions in removing his cane were
unreasonable because she knew or should have known certain facts about his
medical condition and the orders of other providers contained in the medical
records sounds in negligence and not deliberate indifference; an official acts
with deliberate indifference when he “knows of and disregards an excessive
risk” to inmate safety. Farmer, 511 U.S. at 837 (emphasis added). The official’s
conduct must be more than unreasonable, it must be “intentional[]” and “evince
a wanton disregard” for the inmate’s health and safety. Domino, 239 F.3d at
756.
        Hunt has adduced no summary judgment evidence establishing that
Pierson had actual knowledge that Dr. Thompson had issued him a permanent
cane pass in July 2013. At best, a case for medical malpractice or negligence
could be made against Pierson to the extent that, as one of his providers, she
was charged with the knowledge of the contents of his medical records;
however, such acts do not constitute deliberate indifference. See Gobert, 463
F.3d at 346. Pierson based her decision to remove his cane on her observations
that Hunt was not using the cane as an assistive device, and the above medical
evidence establishes that, in addition to Pierson, Physician Assistant Copeland
also determined that Hunt did not need a cane. In this regard, the summary
judgment evidence supports the district court’s finding that the crux of Hunt’s
case is a disagreement over the type of medical care he received, which does
not raise a cognizable § 1983 claim. See id.
        Removal of ground floor only restriction
        Hunt contends that the removal of his cane triggered his housing
reclassification, which allowed security to move him up to “two-row,” which
necessitated that he climb stairs. He argues that it can only be inferred from

                                        6
    Case: 17-40127    Document: 00514425220       Page: 7   Date Filed: 04/11/2018


                                 No. 17-40127

the removal of his cane that Pierson wanted to make him walk up and down
flights of stairs as a punitive measure because she understood the toll it would
take on his body.
      Analysis
      Hunt is correct that Dr. Thompson’s July 25, 2013 physical examination
resulted in orders that a “bottom row” restriction be added and to continue his
cane permit permanently. On Hunt’s Health Summary for Classification Form
dated July 25, 2013, however, Dr. Thompson checked “No Restriction” for both
Housing Assignment and Row Assignment, the latter of which provides for a
“Ground Floor Only” restriction. Roughly three months later, on October 9,
2013, Hunt was seen by Pierson for a sick call examination. Hunt reportedly
“[w]ant[ed] to have a bottom row restriction, stat[ing] he has had this in the
past and he fe[lt] like he need[ed] to have one now.” Pierson observed that
Hunt had elevated blood pressure, complained of knee and back pain, and used
a cane for ambulation. She further observed no new injuries and no current
swelling in the knees, and despite his having degenerative changes on account
of old injuries, Pierson did not observe any new changes warranting “one row
restriction” or “bottom bunk.”
      Hunt and Pierson therefore knew one month before his cane was
removed in November 2013 that he did not have a ground floor only restriction.
Indeed, the summary judgment evidence establishes his last ground floor only
restriction was imposed on August 4, 2011.           His Health Summary for
Classification Forms issued thereafter dated July 26, 2012 and August 1, 2012,
did not impose a ground floor only restriction.
      Consequently, the summary judgment evidence supports the district
court’s finding that Hunt did not have a ground floor only restriction in place
when Pierson removed his cane. Hunt’s allegation that Pierson changed the
ground floor only restriction is conclusional and insufficient to counter the

                                       7
    Case: 17-40127    Document: 00514425220        Page: 8   Date Filed: 04/11/2018


                                 No. 17-40127

summary judgment evidence because it is unsupported.               “[C]onclusional
allegations and unsubstantiated assertions may not be relied on as evidence
by the nonmoving party.” Carnaby v. City of Houston, 636 F.3d 183 187 (5th
Cir. 2011).
      Denial of medical treatment after the fall
      Hunt additionally argues that he was denied adequate medical
treatment following his fall and that it was not until the filing of the instant
law suit that the providers on the Coffield Unit considered his injuries but
nevertheless failed to follow proper protocol to secure the assistance of a
medical expert. He cites no authority as to the appropriate protocol. He alleges
that he still suffers in severe pain because he was denied access to qualified
medical personnel and faults Pierson for failing to refer him to a medical
specialist.
      The aforementioned medical evidence establishes that Hunt did receive
treatment after his fall and he was determined to have suffered no injuries.
Again, the crux of his argument is a disagreement with the type of medical
treatment provided, which, as earlier discussed, is not a cognizable civil rights
claim. See Gobert, 463 F.3d at 346. Moreover, his allegations regarding the
failure to follow proper protocol are conclusional and thus not summary
judgment evidence. See Carnaby, 636 F.3d at187
      Qualified immunity
      A qualified immunity defense alters the typical summary judgment
burden of proof in that once the defense is pleaded by an official, the burden
shifts to the plaintiff to rebut the defense by establishing a genuine fact issue
as to whether the official’s allegedly wrongful conduct violated clearly
established federal law. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
It is the plaintiff’s burden to negate qualified immunity; however, all
inferences are drawn in his favor. Id. The defense of qualified immunity has

                                       8
    Case: 17-40127     Document: 00514425220      Page: 9   Date Filed: 04/11/2018


                                  No. 17-40127

two prongs: (1) whether an official’s conduct violated a plaintiff’s constitutional
right and (2) whether that right was clearly established at the time of the
violation. Id. A court may rely on either prong in its analysis. Id.
      Hunt argues that Pierson is not entitled to qualified immunity because
his right to adequate medical care was clearly established in November 2013.
He contends that the question before this court is whether a reasonable person
in her position would have known that her conduct violated this clearly
established right.    Hunt argues that a fall should reasonably have been
anticipated as inevitable after his cane was removed and he was assigned
second row housing.
      The first prong of the qualified immunity analysis is whether an official’s
conduct violated a plaintiff’s constitutional rights. Brown, 623 F.3d at 253. As
discussed above, the summary judgment evidence does not present a genuine
issue of material fact that would support a claim of deliberate indifference;
therefore, there has been no showing that Hunt’s constitutional rights were
violated, and Pierson is entitled to qualified immunity. Id.
      AFFIRMED; MOTIONS TO FILE REPLY BRIEFS OUT OF TIME, TO
FILE MULTIPLE REPLY BRIEFS, TO FILE TWO OF THE REPLY BRIEFS
IN EXCESS PAGES, TO FILE EXHIBITS IN SUPPORT OF THE MOTION
GRANTED.




                                        9
